Genii Pty Ltd General Conditions of Purchase
- ‘Purchaser’ means Genii Pty Ltd or any subsidiary of Genii Pty Ltd on whose behalf an Order is placed.
- 1.2 ‘Subsidiary’ and ‘Holding Company’ shall be construed in accordance with Section 736 Companies Act 1985.
- 1.3 ‘Seller’ means the person, firm or company with whom an Order is placed.
- 1.4 ‘Goods’ means the articles, materials, plant equipment or things or any of them described in an Order to be supplied by the Seller.
- 1.5 ‘Order’ means the Purchaser’s official instructions to the Seller in writing to supply the Goods on these Conditions and where those instructions conflict with the terms of these Conditions those instructions shall prevail.
- 1.6 ‘Contract’ means the Order and the Seller’s acceptance thereof.
- 1.7 ‘Associated Company’ in relation to either the Purchaser or the Seller means any Subsidiary and any Holding Company (and any Subsidiary of any such Holding Company) of either the Purchaser or the Seller as the case may be.
2. Offer and Acceptance
An order made by the Purchaser shall constitute an offer on the part of the Purchaser which must be accepted by the prompt return of the acknowledgement of an Order form or other similar acceptance in writing or by the actual execution of an Order and such acceptance will be deemed to bind the Seller to these Conditions and no Goods shall be supplied by the Seller except in accordance with such Conditions.
- 3.1 These Conditions alone shall apply to an Order subject to any variations in writing signed by both the Seller and the Purchaser. Any printed or standard conditions appearing on any documents emanating from the Seller shall have no legal effect whatsoever. They appear in the documents only because they are printed thereon and the Seller waives any rights he might otherwise have to rely on such Conditions
- 3.2 No other agreement or understanding in any way modifying or supplementing an Order nor any promises or representations made by representatives of the Purchaser or Seller shall be binding unless confirmed in writing and signed by authorised officers of both parties.
4. Descriptions and Quality
- 4.1 The Goods shall be supplied in strict accordance with the description and specification contained in an Order and shall not exceed the quantity specified. The Purchaser shall not be liable for any excess costs or charges due to deviations from the specifications or stated quantity.
- 4.2 The Goods supplied shall be of the very best quality of the highest standard in the industry and fit for their purposes. The Goods shall comply with all relevant standards and Codes of Practice and contain no deleterious materials or defective components. The Purchaser reserves the right to reject any of the Goods which are faulty or do not conform to the quality, quantity, standard or description as specified in an Order. The Purchaser may return any rejected Goods at the Seller’s risk and expense. Acceptance of the Goods by the Purchaser is subject to a weight check in the receiving store of the Purchaser or on a public weight bridge and to any tests specified in the Order which tests shall be to the Seller’s sole expense unless otherwise agreed.
- 4.3 The Purchaser shall be offered the right to verify at source that the Goods conform to specified requirements. Verification by the Purchaser shall not absolve the Seller of his responsibility to provide an acceptable product in accordance with the standards set out in Clause 4.2 above nor should it preclude subsequent rejection.
5. Warranty as to Health and Safety
The Seller undertakes and warrants that all action required to minimise and eliminate any risk to health and safety resulting from use of the Goods for the purpose for which they are designed has been carried out and that any information which is relevant, in any way whatsoever, to risks to health or safety will be brought to the attention of the Purchaser in writing upon acceptance of this Order. The Purchaser has the right to demand and receive proof that the above undertakings have been carried out.
6. Indemnity/Intellectual Property Rights
- 6.1 The Seller shall indemnify the Purchaser against the following (whether caused by defective design, workmanship or materials or by the failure of the Seller to supply the Goods in accordance with the terms of an Order on any terms implied by Statute or Common law, or any other default or non-compliance of the Seller relating to an Order):- (a) Loss or expense or damage or injury whatsoever and whensoever arising suffered by the Purchaser or for which the Purchaser may be held liable to third parties. (b) Consequential or indirect loss or damage (including without limitation loss of profits, use of contracts) sustained by the Purchaser or for which the Purchaser may be liable. (c) Claims in respect of breach of any statutory duty.
- 6.2 The Seller warrants that the design, construction and quality of the Goods comply in all respect with all statutes, statutory rules, orders, regulations and Codes of Practice which may be enforced or which any way apply to the Goods; any adaptation, sale or use of the Goods by the Purchaser will not infringe any Patent, trade or service mark (whether or not registered), trade name registered resign, copyright, unregistered design right or other intellectual property right belonging to any third party the Seller undertakes to indemnify the Purchaser against all loss, damage, costs, expenses, claims and proceedings which the Purchaser may suffer or incur by reason of any breach of the said warranties.
7. Force majeur
The Purchaser shall have the right to defer the date of delivery or to cancel any Order without liability to the Seller if the need for such deferment or cancellations results froma cause beyond the Purchaser’s reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond the Purchaser’s reasonable control: accident, civil commotions, riot, war, fire, lockouts, strikes, industrial disputes (whether involving employees of the Purchaser, the Seller or a third party), acts of God, explosions, floods, or restrictions, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority.
A separate invoice in respect of each Order shall be sent by the Seller to the Purchaser upon despatch of the Goods showing Inter alia the number and date of the order. All deliveries shall be made to the place or places and at the time or times specified in the Order and shall be accompanied by a delivery note showing the Order number and in the case of part delivery the outstanding balance remaining to be delivered. The Goods shall be properly marked and shall be packed and protected against damage and deterioration in transit and shall be delivered, insured and carriage paid in accordance with the Purchaser’s instructions (if any). Unless otherwise agreed in writing between the Purchaser and the Seller, time shall be of the essence and the delivery date or dates specified in the Order shall be a condition of the Contract.
9. Title and Risk
The Goods shall remain at the Seller’s risk until accepted by the Purchaser. The property in the Goods shall pass to the Purchaser on delivery or when the Goods become appropriated to the Contract.
10. Price and Payment
- 10.1 The price stated in the Order is inclusive of all costs and expenses including packaging and transportation cost where specified. No variation in the price of the Goods will be accepted for any reason whatsoever unless reasonable notice thereof has been given in writing by the Seller to the Purchaser and an authorised officer of the Purchaser shall have accepted the price variation in writing.
- 10.2 Where the Goods are subject to Goods and Services Tax or any other taxes the amount legally demandable is to be rendered as a separate item of account and if required by the Purchaser, the Seller shall produce bona fide evidence of the amount paid or to be paid by it in respect thereof.
- 10.3 The Purchaser reserves the right to set off against any monies due or becoming due to the Seller or to any Associated Company of the Seller, any monies due from the Seller or amount equivalent to any monies due from any Associated Company of the Seller to the Purchaser or to any Associated Company of the Purchaser whether under this Contract or pursuant to any other Contract agreement, lease, right, transaction or arrangement whatsoever with either the Purchaser or any Associated Company of the Purchase.
- 10.4 When invoices subject to discount are not posted on the date thereof, the discount period will be calculated from the date the invoice is received by the Purchaser
- 11.1 Any breach of any term of an Order or of any of these Conditions by the Seller shall (whether or not the Purchaser has accepted the Goods or any part thereof and whether or not the property in those Goods has passed to the Purchaser) entitles the Purchaser at its option either to treat the Contract as repudiated or treat any such breach as a breach of warranty giving rise to claim for damages.
- 11.2 If at any time after acceptance by the Seller of an Order the Seller (being an individual) commits any act of bankruptcy or compounds or makes any arrangement with his creditors or the Seller (being a company) goes into liquidation either voluntary or compulsory (except a voluntary liquidation for the purpose of amalgamation or reconstruction) or has a receiver appointed over any of its assets or has a petition for an administration order presented in relation to it, the Purchaser may cancel such Order forthwith by written notice to the Seller.
- 11.3 No time given or concession made on the part of the Purchaser shall be construed as a waiver of any of its rights and remedies hereunder or at common law.
The Purchaser shall have the right to cancel an order in whole or in part at any time for any reason whatsoever by giving the Seller notice thereof in writing. In such event, the Purchaser shall pay the Seller (except where the Order has been cancelled due to breach by the Seller) a fair and reasonable sum for all materials used and work done up to the time of the cancellation whereupon the property in such materials shall pass to the Purchaser. The Purchaser shall not be liable for any other loss including consequential or direct loss suffered by the Seller or any third party as a result of such cancellation.
If the Goods or any part thereof are not fit for their purposes or show any defects in design, workmanship or materials or do not otherwise comply with the Contract the Purchaser may within a period of 6 months from the date of delivery at its option either: (a) require the Seller to repair or replace such defective Goods to the satisfaction of the Purchaser (in which case the Clause shall apply to the repaired or replacement Goods) (b) reject such defective Goods (in which case the Purchaser shall return the same to the Seller at the Seller’s risk and expense and the Purchaser shall be entitled to purchase equivalent goods elsewhere. Any additional expense incurred in connection therewith shall be reimbursed forthwith by the Seller).
The Seller shall not without the prior written consent of the Purchaser assign or sub-contract any Contract or any part thereof (except for materials and minor details the makers or suppliers of which we specified in the Order). Any such consent shall be conditional upon the assignee or sub-contractor accepting these Conditions and shall not in the case of sub-contracting relieve the Seller of his responsibility for any of the Goods included in the Order.
The Seller shall treat any Order and any and all designs, drawings, specifications and information supplied therewith as confidential and shall not disclose the same to any third party without the Purchaser’s prior written consent and the Seller shall not infringe any copyright, patent, trade mark, registered design or other intellectual property right vested in the Purchaser (save that the Seller may disclose for information already in the public domain).
16. Governing Law
The Contract shall be governed by the construed in accordance with Australian law and each party thereto hereby irrevocably submits to the non-exclusive jurisdiction of the Australian Courts.