- "Barminco" means the Barminco group entity in respect of which a Purchase Order is issued.
- "Purchase Order" means the agreement between Barminco and the Seller which arises on acceptance of a written Barminco purchase order, the written purchase order and any documents attached or incorporated by reference together comprising the entire agreement for the purchase of the goods and/or services ("Goods/Services").
- "Price" means the price for the Goods/Services as set out in the Purchase Order.
- No modification of these Terms will be binding on Barminco unless agreed to by Barminco in writing.
- These Terms replace all prior proposals and negotiations with the Seller and the Purchase Order supersedes any prior documentation in relation to the supply of the Goods/Services.
- These Terms override any quotes, terms and conditions, invoices or other documentation exchanged between the parties whether or not such documentation expressly provide that they override these Terms.
- The Seller will not, without the prior written consent of Barminco, assign, sub-contract or otherwise transfer the Purchase Order, either in whole or in part.
- If the Seller comprises two or more persons, each person is jointly and severally responsible for all and any obligations, liabilities and indemnities in favour of Barminco.
- The acceptance by the Seller of Barminco's written Purchase Order or delivery of the Goods/Services (whichever first occurs) will constitute unconditional acceptance of the written Purchase Order and agreement between the parties of these Terms.
2. Supply of Goods/Services
- In consideration of payment of the Price by Barminco, the Seller must supply the Goods and/or perform the Services:
- in accordance with and by the dates set out in the Purchase Order;
- at the Price; and
- in accordance with these Terms.
- The parties' relationship is one of principal and independent contractor, not employer and employee, principal and agent or partnership and no contractual relations will arise between any of the Seller's employees, agents or subcontractors and Barminco as a result of the Seller's and Barminco's relationship, and the Seller does not have the right or authority to act on behalf of or bind Barminco unless the Seller has expressly authorised Barminco in writing.
- The Seller must supply the Goods/Services:
- with due care and skill using that standard of diligence, that would reasonably be expected from a prudent, expert and experienced provider of Goods/Services in Australia which are similar to the Goods/Services the subject of the Purchase Order;
- using appropriately qualified, trained, certified and supervised personnel; and
- in compliance with the Purchase Order, these Terms, all applicable laws, industry practice and the reasonable directions of Barminco.
- In consideration of payment of the Price by Barminco, the Seller must supply the Goods and/or perform the Services:
3. Acceptance of delivered Goods/Services
- The Seller will dispatch the Goods/Services in accordance with the delivery details set out in the Purchase Order (including the manner, date and location of delivery) ensuring that they arrive at the specified delivery point at the time specified in the Purchase Order.
- Delivery will only occur when the Goods/Services have been received and accepted by Barminco notwithstanding any agreement to pay freight, express or other transportation charges or the passage of title by operation of law or otherwise and the cost of loss or damage in transit will be borne by the Seller.
- Risk in the Goods/Services will pass to Barminco when Barminco unconditionally accepts the Goods/Services in accordance with these Terms. Title to and property in the Goods immediately passes to Barminco upon the earlier of payment of the Price or delivery of the Goods to the specified delivery address.
- All Goods/Services will be subject to Barminco's inspection and approval. If any Goods/Services are rejected by Barminco, those Goods/Services will be held, subject to the Seller's instructions, at the Seller's risk and at the Seller's expense and, may be returned by Barminco to the Seller, or as otherwise instructed by the Seller, at the Seller's expense.
- Barminco reserves the right to reject any Goods/Services which are damaged or which do not conform to the quality, conditions or type specified in the Purchase Order.
- Acceptance by Barminco of all or any part of the Goods/Services supplied under the Purchase Order which is not in accordance with the terms of the Purchase Order will not bind Barminco to accept future deliveries.
- Acceptance by Barminco of all or any part of the Goods/Services will not be deemed to be a waiver of Barminco's right either to cancel or return all or any part of the Goods/Services because of failure to conform to the Purchase Order by reason of any defects or breach of warranty, or be deemed to be a waiver of Barminco's right to make any claim for damages incurred by Barminco. These rights will be in addition to any other remedies provided by law.
4. Seller's Warranty
- The Seller warrants that the Goods/Services will be of merchantable quality, fit for sale and for use, fit for the purpose intended and that they conform to the specifications, applicable standards and performance capacity represented by the Seller or specified in the Purchase Order.
- The Seller warrants that the Goods/Services, including in the case of goods, all component parts, are free from defects and, for a period of one year after Barminco's acceptance of the Goods/Services, agrees to promptly replace and reinstall any defective part or unit at no cost to Barminco, (including without limitation labour, material, freight and delivery charges) or resupply free of charge any service, as appropriate.
5. Payment Terms
- Barminco must pay the Seller the Price for the Goods/Services.
- The Price is inclusive of all costs incurred by the Seller in supplying the Goods/Services (including labour and transportation costs) and all new, existing or increased federal, state, territory or regulatory charges or duties (other than GST).
- Payment for the Goods/Services will be made 60 days, from the end of the month that the Goods/Services are received and a valid tax invoice (quoting Barminco's Purchase Order number) is received.
- Payment for the Goods/Services does not imply acceptance of the Goods/Services by Barminco and shall not in any way affect Barminco's rights under the Purchase Order.
- Barminco may withhold payment where the Seller fails to provide any information required by the Purchase Order.
- If Barminco disputes the amount of a valid tax invoice, Barminco must pay the undisputed amount.
6. GST/Other Taxes
- The Seller agrees to pay and discharge all taxes, duties and other imposts on the Goods/Services and to indemnify Barminco against any liability for such taxes, duties and imposts. Barminco retains the right to withhold monies due to the Seller in respect of any unpaid taxes, duties or other imposts where payment of these by Barminco is required by law.
- GST related terms used in these Terms have the meaning given to them in applicable GST legislation. In relation to GST:
- If the Supply of goods and/or services under these Terms results in the Seller being liable to pay GST, the Seller will pay that GST and will provide a Tax Invoice to Barminco requiring it to pay to the Seller the amount of that GST. Barminco agrees to pay the amount of that GST to the Seller.
- The liability to pay GST to the Commissioner for any Supply under these Terms and liability for all penalties, interest and other charges under the GST Act, remains at all times with the Seller.
- Payment of the GST set out in the Tax Invoice will be in accordance with the terms of payment for the Supply set out in these Terms.
- The Seller is not entitled to claim from Barminco payment of an amount of GST greater than the actual GST due by the Seller to the Commissioner.
- If for any reason the amount of GST payable by the Seller on any supply of goods and/or services under this Agreement is reduced, the Seller must inform Barminco in accordance with the Seller's obligations under GST legislation and reduce accordingly the amount payable by Barminco under clause 6 (b) (ii), or, if Barminco has already paid that amount, refund the amount of the reduction to Barminco within 14 days.
- If as a result of the reduction or removal of any tax, duty, excise or statutory charge (including without limitation sales tax, fuel excise, stamp duty, FID and debits tax) the GST exclusive value of the Goods/Services is reduced, the Seller must pass on in full to Barminco any associated cost savings which result to the Seller.
- Barminco may on reasonable notice, have carried out an audit of the Seller in order to ensure that the Seller is complying with its obligations in the preceding paragraph. For this purpose, the Seller will do all things reasonably necessary to co-operate with Barminco and will make available to Barminco all relevant documentation.
- Barminco may, at its option, cancel all or part of a Purchase Order at any time for any reason by giving written notice to the Seller.
- If the Seller commits a breach of or fails to comply with any of these Terms or (if an individual) becomes bankrupt or makes an assignment of their estate for the benefit of their creditors or makes an arrangement or composition with their creditors or (if a company) goes into liquidation, provisional liquidation or administration or has a receiver appointed to any of its assets, Barminco may cancel the Purchase Order with immediate effect.
- On cancellation of a Purchase Order:
- the accrued rights and remedies of each party are not affected;
- the Seller must stop working on any incomplete or undelivered Goods/Services;
- if requested by Barminco, deliver to Barminco all completed Goods/Services which conform in quality to the Purchase Order; and
- the Seller's sole and exclusive right in respect of the termination is limited to the payment of the Price for any Goods/Services which have been completed in accordance with the Contract and delivered to Barminco.
The Seller will effect and maintain the following insurances:
- Marine Transit and Property Damage insurance covering physical loss, damage or destruction of the Goods supplied for their full replacement value;
- Public and Products Liability insurance for a limit of indemnity of not less than $10 Million for any one occurrence and in the aggregate with respect to Products Liability if the Seller is supplying Goods;
- Workers Compensation insurance and any other insurance required by any applicable law including Industrial Disease coverage as may be required, in respect of any person employed or engaged by the Seller who goes on to any Barminco site; and
- Motor Vehicle Third Party Property Damage insurance for limit of indemnity of not less than $10 Million in respect of any registered motor vehicle, if the Seller goes on to any Barminco site.
- The Seller will at any time requested by Barminco provide certificates of currency for each of the above insurances.
- The Seller will indemnify and hold Barminco harmless from all claims, demands, proceedings, liability, loss, damage or expense (including legal fees on a solicitor and own client indemnity basis) for any breach or violation of intellectual property rights including patents, patents pending, trade marks, trade names, copyright and know how relating to the Goods/Services. This indemnity will be in addition to any other remedies provided by law.
- The Seller will indemnify and hold Barminco harmless from all claims, demands proceedings, liability, loss, damage and expense (including legal fees on a solicitor and own client indemnity basis) sustained by Barminco arising out of or in connection with:
- the Goods/Services;
- a breach of these Terms; or
- any act or omission by the Seller or the Seller's employees, agent or contractors,
- including without limitation in connection with any death or injury to any person, damage to any property, or any clean up costs, directly or indirectly caused or contributed to by the Seller, except to the extent that any such loss is caused by Barminco's wilful misconduct or negligence.
10. Consequential Loss
Despite any other provision in this Purchase Order, neither party is liable for any Consequential Loss suffered by the other party unless otherwise stated in contract or agreement.
For the purposes of these Terms, "Consequential Loss" means all indirect loss or damages, loss of contract, loss of profit, loss of production, loss of revenue, loss of savings, loss of use, or business interruption, howsoever caused, arising out of or in connection with the Purchase Order and whether or not foreseeable at the date of the Purchase Order irrespective of whether such loss is caused by the negligence or breach of duty, statutory or otherwise, or by any other tortious act or omission or breach of the these Terms by either party.
11. Anti-bribery & Anti-corruption
The Seller must:
- at all times comply with the Barminco Anti-Bribery and Anti-Corruption Policy and all applicable laws, statutes, regulations and codes relating to anti-bribery and improper payments, including but not limited to the Commonwealth Criminal Code (Australia) ("Relevant Requirements");
- be responsible for, the observance and performance of the Relevant Requirements by all persons performing services or providing goods in connection with the Purchase Order on behalf of the Seller or under its supervision or control, including any third parties engaged by the Seller.
Barminco supports green purchasing which is the selection of products and services that minimise negative environmental impacts from manufacturing, transport, use and recycling or disposal. Attached is the link to Barminco Green Purchasing procedure: http://www.barminco.com.au/how-we-work/environment.html
13. Governing Law
The Purchase Order will be governed by the laws of Western Australia and the parties agree to submit to the non-exclusive jurisdiction of the courts of Western Australia.