Purchase Order Terms And Conditions
AEF 144 r01 March 2021
1. Conditions Governing the Contract
(a) This Contract being the agreement between the purchasing entity (see “Invoice To:” entity) named in the Purchase Order (Andrew Engineering) and the Vendor entity named in the Purchase Order (Supplier) for the delivery of the goods and/or services described in the Purchase Order (Works) comprises the accompanying Purchase Order and these Conditions of Order.
(b) In the event of any inconsistency, the order of precedence shall be:
(i) the terms of a valid contract between the parties for the Works
(ii) these Purchase Order Terms and Conditions (Conditions of Order).
(c) The following will constitute acceptance by the Supplier of these Conditions of Order:
(i) forwarding any confirmation of order form, letter, receipt, invoice or any other document relating to the Works or a part of the Works.
(ii) delivery of the Works (meaning the goods and/or services to be supplied and/or provided by the Supplier as described in the Purchase Order) or a part thereof or commencement of any of the Works; or
(d) This Purchase Order constitutes the entire agreement between Andrew Engineering and the Supplier as to its subject matter and supersedes any prior understanding or agreement between the parties, including without limitation any terms and conditions appearing in any quotation, bill of lading, delivery docket, invoice, receipt, order confirmation, letter or other document whatsoever received by Andrew Engineering before or after the date of the Purchase Order.
(e) The Purchase Order must be in writing and signed by Andrew Engineering. The Supplier will not rely on any representations made by Andrew Engineering or its related parties concerning the Purchase Order or the Works unless those representations are in writing and are included in the Purchase Order.
(f) These Conditions of Order will also apply to all future transactions with the Supplier, irrespective of whether or not express reference is made thereto at the time of the conclusion of such contracts, unless Andrew Engineering and the Supplier agree otherwise in writing.
2. Workmanship, Quality, Inspection and Audit
(a) The Supplier shall ensure that its production and the Works always comply with all information provided by Andrew Engineering and meet the highest quality and the latest technical, safety and environmental standards in the industry and otherwise comply with the Contract. The Supplier must, unless otherwise agreed in writing, maintain a quality management system in accordance with ISO 9001 or any equivalent agreed quality standard and impose the same requirement on its subcontractors.
(b) The Supplier acknowledges that Andrew Engineering and/or Andrew Engineering’s Client for which the Works are being purchased (Client), the Rail Commissioner in the State of applicable Works, any rail safety regulatory bodies and/or any other third parties nominated by Andrew Engineering may undertake an audit of the Supplier, the services and the Supplier’s performance and compliance with this Contract at any time. For such purposes, the Supplier must permit the Auditors access, at any reasonable time and on reasonable notice, to any premises, information, data or records of, or which are maintained by, the Supplier or its personnel and that relate to this Contract and cooperate with the Auditors, and comply with any reasonable request, when the Auditors are conducting any inspection or audit.
3. Compliance with Laws
(a) The Supplier must comply with all laws and relevant industry and safety standards, including those relating to workplace health and safety, and must obtain all consents and authorities from private and governmental persons which are necessary for the Supplier to satisfy its obligations under the Contract.
(b) The Supplier must not seek to perfect under the Personal Property Securities Act 2009(Cth) (PPS Act) a security interest in any property which forms or will form part of the Works (PPS Property).The Supplier acknowledges that Andrew Engineering may, but is not obliged to, perfect a security interest in any PPS Property, any manufacturing aid owned by Andrew Engineering under clause 7 or any other property provided to the Supplier by Andrew Engineering under clause 20 or otherwise and the Supplier must do everything that Andrew Engineering may reasonably require to perfect any such security interest under the PPS Act.
4. Delivery and Acceptance of the Works
The Supplier shall deliver the Works to the address and in the manner specified by Andrew Engineering in the Purchase Order. Partial or preliminary deliveries or deliveries outside Andrew Engineering’s normal business hours are only permissible with Andrew Engineering’s prior written consent. Unless otherwise agreed in writing, the Works (including any items or components provided to the Supplier by Andrew Engineering) must be delivered within the timeframe stated on the Purchase Order by the Supplier of these Conditions of Order. Andrew Engineering may vary the delivery dates by prior written notice to the Supplier. Andrew Engineering may, within 5 business days following the delivery of the Works, advise the Supplier that it does not accept the Works and give reasons for the non acceptance. The absence of advice as to non acceptance is not to be taken as evidence that the Works comply with the Contract.
5. Price and Payment
The total purchase price of the Works is the amount in the Purchase Order and unless otherwise agreed in writing Andrew Engineering is not liable for any price increase (including amounts for delivery) or other charges not specified in the Purchase Order. The price specified in the Purchase Order, unless stated otherwise, is inclusive of all costs and taxes including, without limitation, goods and services tax and all other value added tax imposed on goods or services at a retail or wholesale level. Andrew Engineering will effect payments within 45 days starting at the end of the month of receipt of the Supplier’s valid tax invoice (including the amount of any GST) or delivery of the Works or the contractual delivery date for the Works, whichever is the latest. Payment does not signify acknowledgment the Works comply with the Contract.
6. Ownership and Risk
Ownership in the Works passes to Andrew Engineering after the expiration of 5 business days following delivery provided that if Andrew Engineering advises of non-acceptance of the Works, ownership remains with the Supplier. Risk in the Works will pass to Andrew Engineering on delivery of completed Works specified in the Purchase Order. Where the Purchase Order states the Supplier must provide or produce manufacturing aids with or for the Works, these aids are the property of Andrew Engineering, whether or not they are provided to Andrew Engineering or remain in the possession of the Supplier.
7. Additional Works
Any quantity of Works greater than the amount of the Works ordered may be rejected by Andrew Engineering. Property and risk in any additional Works will not pass upon completed delivery but will remain with and be with the responsibility of the Supplier.
8. Warranty
The Supplier represents and warrants that when the Goods are delivered to Andrew Engineering that they will:
(a) be of merchantable quality, new in every respect and in good order and condition;
(b) comply in all respects with the Purchase Order, including any specifications or other requirements included with the Purchase Order;
(c) be fit for the purpose made known to the Supplier by Andrew Engineering or, if none was made known to the Supplier, be fit for the purpose:
(i) for which goods of that kind are ordinarily used;
(ii) which should reasonably have been inferred by the Supplier having regard to the nature of the Goods, the Purchase Order and any communications with Andrew Engineering;
(d) comply with all applicable Australian Standards or where there is no applicable Australian Standard then all applicable International Standards ;
(e) comply with the provisions of any law or legislation applicable to them;
(f) be free from defects for:
(iii) a minimum of 2 years from the date the Goods are put into service; or
(iv) the period specified in the Purchase Order, whichever is longer
and
(g) include appropriate and correct warnings and instructions.
9. Defects
(a) The Supplier guarantees that the Works will be free from defects for a period of 24 months from the date of transfer of risk (Defects Liability Period).Any defective Works or part of the Works may be rejected by written notice to the Supplier or by returning the Works or part of them to the Supplier. The return of defective Works to the Supplier will be at the Supplier’s cost. Andrew Engineering may elect to require the Supplier to repair the defective Works or to replace the defective Works with nondefective Works to Andrew Engineering’s satisfaction within a reasonable time required by Andrew Engineering. In cases where delay would give rise to risk or where there is a special need for speed, Andrew Engineering may, following notification of the Supplier, undertake the repair of defects itself, or have these undertaken by third parties, or procure a replacement delivery, at the Supplier’s cost. The Supplier must fulfill all of its obligations under warranty immediately and at its own expense. If the Supplier does not immediately fulfill a demand under warranty or if repairs or replacements repeatedly fail or if a defect only becomes known at Andrew Engineering’s premises after the start of the production of the goods that the Works were meant to form part of, then Andrew Engineering may demand a reduction in the amount of the purchase price of the defective Works or terminate the Contract in accordance with clause 18(a).
(b) If an epidemic defect occurs within 5 years from the date of transfer of the risk, the Supplier shall rectify the defect by means of modified designs or production methods or by the use of other materials. Andrew Engineering shall be entitled to request replacement of all parts of the affected delivery series. All costs arising as a result of the replacement of the Works shall be borne by the Supplier. An epidemic defect occurs if the same defect occurs in at least 10% of the delivered parts in the same delivery series and the defect is to be attributed to design, production, materials or assembly defects of the Supplier.
10. Delay And Liquidated Damages
(a) With regard to delivery of the Works, time will be of the essence. The Supplier must deliver the Works on the delivery dates in the Purchase Order. Delivery of Works will not be deemed to have been made until non-defective Works are delivered in full and accepted by Andrew Engineering.
(b) If the Supplier fails to deliver any separable part on the relevant date, the Supplier must pay Andrew Engineering liquidated damages at the rate of 1.5% of the purchase price of the relevant separable part per week of delay (which the parties agree is not a penalty but a reasonable pre-estimate of likely damages)up to a maximum of 10% of the purchase price of the relevant separable part. The Supplier must inform Andrew Engineering immediately in writing if it envisages any difficulties in delivering the Works on the delivery dates in the Purchase Order.
11. Liability and Indemnity
The Supplier shall continually indemnify Andrew Engineering and its employees, agents and contractors:
(a) against any claim or proceeding and against any liability, loss, damage, cost or expense (including legal costs on a full indemnity basis) any of them incurs or suffers as a direct or indirect result of a breach of the Contract by the Supplier or any act or omissions by the Supplier, its employees, agents, contractors and subcontractors in breach of the law;
(b) against all claims in respect of personal injury or death or loss of or damage to any property (other than the Works) arising out of or as a consequence of the carrying out of Works; and
(c) against all claims, actions, costs, expenses (including legal fees on a full indemnity basis), liabilities and proceedings whatsoever resulting from any alleged or actual infringement of a patent, registered design, copyright, trade mark or other intellectual property right arising from Andrew Engineering’s use of the Works.
12. Insurance
Before commencement of any of the Works, the Supplier undertakes to maintain such insurances a prudent Supplier would obtain and maintain including:
(a) Public and Product Liability insurance with a minimum sum cover of AUD $20 million for each case of personal injury or damage to property, on a lump sum basis which must be maintained until the expiration of the Defects Liability Period;
(b) Professional Indemnity insurance with a minimum sum of cover of AUD $1 million which must be maintained for a period of 7 years after expiration of the Defects Liability Period
(c) Workers Compensation as required by law in each of the States or territories the Goods or services are being provided.
(d) Motor Vehicle insurance covering all mechanically propelled vehicles that are registered, or capable of being registered, for road use and are at any time used in connection with the Purchase Order.
(e) Marine Transit insurance covering all insurable risks of physical loss or damage to the Goods, and/or merchandise or any other property in which Downer has an insurable interest occurring at any time while in transit or in storage in the ordinary course of transit up to the agreed Place of Delivery or Place of Pick-up (as applicable)
(f) Insurance of the Works until the passing of risk in the Works to Andrew Engineering; and
(g) any other insurance required by law . The insurance must be with an insurer and otherwise on terms acceptable to Andrew Engineering. The Supplier must provide evidence of this to Andrew Engineering upon request.
13. Prior To Manufacture
Documentation provided by Andrew Engineering with the invitation to quote (if any) may have been amended between the date of issue of the invitation to quote and the Supplier receiving a Purchase Order. It is the Supplier’s responsibility to ensure that before commencing any work under a Purchase Order that the revision level of the relevant documentation shown in the Purchase Order is the same as the documentation in the Supplier’s possession.
14. Works At Andrew Engineering’s & or Andrew Engineering Client’s Premises
(a) If Works are undertaken at Andrew Engineering’s premises (or premises leased or licensed to Andrew Engineering), the Supplier must comply with all laws relating to occupational health and safety and the requirements of the rail safety standards; any accreditation requirements; any site access procedures as advised by Andrew Engineering from time to time; all requirements of any environmental management system of Andrew Engineering or the Client; and all directions, procedures and protocols given by Andrew Engineering in relation to rail safety, occupational health and safety and the environment.
(b) The Supplier must not do or omit to do anything in the performance of the Works which would result in the Andrew Engineering site(s) not being in a good and safe condition so that it presents a risk to the health and safety of any person or is unsuitable for its proposed use. If Andrew Engineering reasonably considers there is a risk of injury to people or damage to property arising from the Works, Andrew Engineering may direct the Supplier to change its manner of working or to cease working to the extent necessary to remove the risk and Supplier must comply with any such direction at its cost.
15. Computer Systems
Where the Works include provision of data in an electronic form, the Supplier will ensure that appropriate software and/or computer operating systems are provided and licensed to Andrew Engineering to enable Andrew Engineering and/or its customers to use the data without any increase in the purchase price of the Works.
16. Spare Parts
The Supplier will deliver spare parts to Andrew Engineering on reasonable terms (including price) for the normal product life of the Works. Unless otherwise agreed in writing, the normal product life of the Works shall be 10 years. The Supplier must give Andrew Engineering an opportunity to make a final order should the Supplier intend to cease making spare parts available to Andrew Engineering.
17. Termination
(a) Andrew Engineering may without liability to the Supplier by written notice terminate the Contract in whole or in part if the Supplier fails to remedy a default under the Contract within the number of days reasonably specified (which shall be 5 business days if no such time is specified) in a notice of default served by Andrew Engineering or immediately upon the Supplier becoming insolvent or having an administrator appointed or upon steps being taken to wind the Supplier up. Should the Supplier be incapable to remedy the default within the specified period and the Supplier can demonstrate that it has taken reasonable steps to remedy the default, Andrew Engineering may grant the Supplier further remedial time. Upon termination for default, the Supplier shall indemnify Andrew Engineering for all damages and any cost or expense incurred by Andrew Engineering because of the default.
(b) Andrew Engineering may terminate the Contract or any portion of it for convenience at any time by providing a written notice to the Supplier. Andrew Engineering will reimburse the Supplier its reasonable costs for the portion of the Works completed up to the date of termination, including costs for materials purchased specifically for the Contract that the Supplier cannot use otherwise, provided that the Supplier is not paid in total, in connection with the Contract, more than the amount of the total purchase price.
(c) Upon termination of the Contract, Andrew Engineering may enter the Supplier’s premises and remove property owned or made available by Andrew Engineering. The Supplier warrants that any property retrieved under this clause shall be free of any competing security interest.
18. Obligations on Termination or Expiry
The Supplier acknowledges and agrees that the Supplier may be required, upon the request of the Andrew Engineering’s Client, to consent without payment to the novation or assignment of this Contract to Andrew Engineering’s Client, as directed by the Client or its nominee, and the Supplier must enter into any agreement or deed required to affect such novation or assignment.
19. Information and Items Provided By Andrew Engineering
(a) The Supplier will not disclose to any third party information of confidential nature provided to the Supplier by Andrew Engineering. Any drawings, specifications, samples, tools, equipment, manufacturing aids owned by Andrew Engineering under clause 7 or other items or documents made available to the Supplier by Andrew Engineering are and remain Andrew Engineering’s property and shall be handled in strict secrecy, may only be made accessible to third parties with Andrew Engineering’s prior written consent and must be identified as Andrew Engineering property at all times. They are to be used exclusively for the provision of the Works, not to be used, copied or reproduced for any other purpose except as required by law, to be insured adequately by the Supplier and to be returned to Andrew Engineering after the order has been processed or the Contract has been terminated. The Supplier shall impose corresponding obligations on its subcontractors.
(b) The Supplier acknowledges that Andrew Engineering may disclose confidential information of the Supplier to Andrew Engineering Client, as well as their personnel.
20. Variation
The terms of the Contract can only be varied by written agreement signed by Andrew Engineering and the Supplier.
21. Assignment and Subcontracts
The Supplier must not assign or subcontract this Contract or any part of it without Andrew Engineering’s prior written consent.
22. Supplier Not to Advertise
The Supplier must not use or refer to Andrew Engineering’s company name or trademark without Andrew Engineering’s prior written approval.
23. Waiver
Failure by Andrew Engineering to enforce any of the conditions of the Contract or to take action in respect of any breach shall not be construed as a waiver of any of the conditions even if such failure or breach is continuing, habitual or repeated from time to time.
24. Other Rights
Any rights and remedies of Andrew Engineering under the Contract are not intended to be exclusive, but are in addition to all other rights Andrew Engineering is entitled to at law or in equity.
25. Severability
If any of the Contract’s terms is held to be invalid, illegal or unenforceable, in whole or in part, then such term shall to that extent be deemed not to form part of the Contract, but the remainder of the Contract shall remain in full force and effect, and the parties undertake to replace the term with a provision which approximates as closely as possible to the term.
26. Arbitration and Applicable Law
Any dispute arising out of or in connection with the Contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce, by one or more arbitrators appointed in accordance with said rules and shall be binding upon the parties. The language of the arbitration proceedings and the award shall be English, and the location shall be Melbourne, Victoria. The Contract shall be construed and shall operate according to the laws of the State of Victoria. The United Nations Convention of 11 April 1980 on contracts relating to the international sale of goods shall be excluded.