1. In this Agreement the following words have the meaning set out below:
Agreement means the Order and the Terms.
Business Day means a day on which banks are open for general banking business in Perth, Western Australia excluding a Saturday, Sunday or public holiday in that city.
Confidential Information means the Agreement and information (regardless of its form) which is disclosed directly or indirectly by Ecocentric and treated or designated as confidential by Ecocentric or the Supplier knows, or ought to know, is confidential.
Contract IP means the intellectual property rights in subject matter developed by the Supplier in the performance of the Services or otherwise however under the Terms but does not include Existing IP.
Customs Duty means the imposition of charges and duties under the Customs Act 1901 (Cth).
Date for Delivery means the date for delivery specified in the Order or, if no such date is specified, four weeks after issue of the Order.
Delivery Address means the delivery address specified in the Order.
Existing IP means the intellectual property rights owned by the Supplier prior to the commencement of the Services.
Goods means the goods stated in the Order and includes software and, unless expressly stated otherwise, Services.
Invoice means an invoice that complies with clauses 40, 41 and 42.
Milestones means the date(s) in the Order for performance and completion of the Services.
Order means the attached purchase order.
Order Number means the order number specified in the Order.
Ecocentric means Ecocentric Group Ltd ABN 30 155 436 918 trading as Ecocentric.
Personnel means the Supplier’s officers, employees, delegates, subcontractors, partners, agents and service providers of any nature.
Policies and Guidelines means all of Ecocentric’s policies and guidelines as varied from time to time.
Order Price means the price payable in respect of the Order which shall be calculated using the agreed unit rates and lumpsum prices as shown on the Order.
Services means the services provided or to be provided by the Supplier under the Agreement.
Service Levels means:
(a) the exercise of that degree of skill, diligence, prudence and foresight that would reasonably be expected from a reputable and prudent contractor in performing services similar to the Services under conditions comparable to those applicable under the Agreement;
(b) the service levels, standards and codes as would ordinarily be applied in the circumstances; and
(c) ensure the safety of persons and property.
Supplier means the party supplying the Goods, as stated on the Order.
Term means the period specified in the Order.
Terms means Ecocentric’s standard purchase order terms and conditions.
Warranty Period means the warranty period specified in the Order or, if no warranty period is specified, a period of 12 months from the date on which the Supplier delivers the last of the Goods to the Delivery Address.
2. If at the time Ecocentric issues an Order, Ecocentric and the Supplier are parties to a contract covering supply of the Goods, Ecocentric will quote the relevant contract number in the Order. The Terms will not apply to the Order, other than this clause 2. Quotation in the Order or notification of the relevant contract number constitutes conclusive evidence that the relevant contract applies to the Order.
3. Subject to any contract prevailing over the Terms under clause 2, by issuing the Order to the Supplier, Ecocentric offers to purchase the Goods and/or Services from the Supplier on the Terms. By accepting the Order, the Supplier agrees to supply the Goods and/or perform the Services on the Terms. Unless stated otherwise in the Order, an Order expires if it has not been fully accepted within 10 Business Days of the date of the Order. A partial acceptance of an Order constitutes a rejection of the Order unless the Order specifically states that it may be accepted as to certain identified parts only.
Date for Delivery and Milestones
4. Time is of the essence in this Agreement. The Supplier must deliver the Goods to the Delivery Address by no later than the Date for Delivery and/or commence and complete the Services by the Date for Commencement of the Services and the Date for Completion of the Services respectively and in accordance with the Milestones.
5. If the Supplier is unable to deliver the Goods by the Date for Delivery, and /or unable to provide and complete the Services in accordance with the Milestones and/or the Date for Completion of the Services, the Supplier must immediately notify Ecocentric. Ecocentric reserves the right, in its absolute discretion, to terminate the Order by two Business Days written notice if the alternative date for delivery and/or alternative performance and completion dates for the Services proposed by the Supplier is unacceptable to Ecocentric. The Supplier is not entitled to any payment, costs or damages from Ecocentric by reason of such termination.
6. All Goods supplied must be of merchantable quality, conform to any relevant description, specification or other requirements in the Agreement and, unless otherwise stated in the Order, be new.
7. The Supplier warrants that the Goods will be free from defects in quality, design, materials and workmanship for the Warranty Period (if any) and that the Services meet the Service Levels.
8. The Supplier must provide the Services in accordance with the Service Levels.
9. All Goods delivered are subject to Ecocentric’s inspection and testing within a reasonable time after delivery at the Delivery Address. If, upon inspection or testing, Ecocentric finds any of the Goods to be defective, of poor quality or otherwise not in accordance with the Terms, the Supplier must, after receiving notice from Ecocentric that the Goods are rejected, collect the Goods at the Supplier’s expense. By notice, Ecocentric may at any time reject any part of or all of the Services which are defective or do not meet the Service Levels or are otherwise not in accordance with the Agreement, the Supplier must reperform the Services at Supplier’s cost and to Ecocentric’s reasonable satisfaction. Ecocentric has no liability to pay for Goods and/or Services that have been rejected under this clause 9 and the Supplier is not entitled to any costs or damages from Ecocentric by reason of such rejection.
10. Without limiting Ecocentric’s rights under clause 9, if Ecocentric identifies any defect in the Services, the design, quality, materials or workmanship during the Warranty Period, it may give notice of this occurrence to the Supplier. On receipt of notice the Supplier must on request collect the Goods or, if Services are concerned, rectify the defect at the Supplier’s expense. Any Goods collected under this clause (and not rejected by Ecocentric under clause 9) must be repaired or replaced as soon as possible at the Supplier’s cost. Alternatively Ecocentric may, at its option, retain the Goods but withhold from payment an amount reasonably determined by Ecocentric as compensation for the defect.
Warranties as to ownership
11. Subject to clause 35 as to Services involving software, the Supplier represents and warrants that as at the Date for Delivery it is the legal and beneficial owner of the Goods and no person other than the Supplier holds or is entitled to hold any interest in the Goods.
12. The Supplier represents and warrants that as at the Date for Delivery there are no encumbrances or liens over the Goods.
Goods - Risk and insurance
13. The Supplier is responsible for all losses or damage to the Goods until they are delivered to Ecocentric at the Delivery Address in accordance with the Terms.
14. The Supplier must, at its cost, ensure that the Goods are insured against all risks to the point of delivery at the Delivery Address and, if the Goods are rejected or returned by Ecocentric under clauses 9 or 10 respectively, from the time the Supplier collects the Goods from Ecocentric.
15. Title to the Goods passes from the Supplier to Ecocentric upon the earlier of either delivery in accordance with the Terms or upon payment.
Compliance and reporting
16. The Supplier must at its own expense comply with all State, Federal and local laws, regulations or orders applicable to the purchase, manufacture, processing, delivery and pricing of the Goods and provision of the Services.
17. The Supplier must provide Ecocentric with such reasonable assistance as requested by Ecocentric in order for Ecocentric to satisfy and comply with any laws applying to Ecocentric and relating to the Terms.
18. The Supplier must comply with any direction given by Ecocentric or any of its agents or employees when on Ecocentric’s site, including when delivering the Goods and generally regarding the performance of the Services.
19. From time to time, Ecocentric may request the Supplier to provide a written report setting out in detail such information about the Goods and/or the Services, or any other obligations of the Supplier under the Terms, as Ecocentric may require, and the Supplier must provide the report to Ecocentric within 10 Business Days of that request, unless another timeframe is stipulated in Ecocentric’s request.
Specific terms in relation to Services
20. The Supplier warrants that it and any Personnel engaged to perform the Services are competent and have all the necessary skills, training and qualifications to carry out the Services in accordance with the Terms.
21. The Supplier has sole responsibility for providing all resources and equipment necessary to perform the Services, whether they are carried out at Ecocentric’s premises or elsewhere.
22. The Supplier must keep clean and tidy all locations on which the Services are performed.
23. The Supplier must acquaint itself with and comply with the latest editions of the Policies and Guidelines.
24. The Supplier must as soon as is possible report to Ecocentric all incidents, injuries or damage to property or the environment in accordance the applicable requirements in the Polices and Guidelines (if any) or as otherwise approved by Ecocentric, and take all reasonable steps to rectify the incident, injury or damage.
25. Supplier indemnifies Ecocentric against any liability and any other loss, damage, claim, action or expense (including legal expenses) arising out of or connected with any infringement or alleged infringement by Supplier or Ecocentric of the intellectual property right of a third person related to the Agreement or arising out of Supplier’s performance of the Agreement.
26. Supplier indemnifies and holds harmless Ecocentric, our employees, contractors, agents, affiliates and officers (Ecocentric Indemnified Parties) against any liability and any other loss, damage, claim, action or expense (including legal expenses) suffered or incurred by any of the Ecocentric Indemnified Parties in connection with the Agreement or the Services and/ or Goods which arises from or in connection with:
(a) any breach of the Agreement by Supplier;
(b) any injury to, or death of, a natural person and any loss of or damage to property caused or contributed to by Supplier or Supplier’s employees, agents, subcontractors or officers;
(c) any claim, action, demand or proceeding by a third party against the Ecocentric Indemnified Parties caused or contributed to by Supplier or Supplier’s employees, agents, subcontractors or officers; and
(d) any fraudulent, wilful, unlawful, dishonest or negligent act or omission by Supplier or Supplier’s employees, agents, subcontractors or officers.
27. Supplier’s Liability under clause 26 to Ecocentric Indemnified Parties shall be reduced to the extent the any negligent act or wilful misconduct by Ecocentric Indemnified Parties directly caused the loss, damage, claim, action or expense (including legal expenses).
28. The Supplier must for the Term (at its own cost) effect and maintain the following insurance policies and any policies from insurers acceptable to Ecocentric:
(a) Employee Insurance: Insurance against any claim in respect of any personal injury to or death of any person employed or engaged by the Supplier which arises out of, or is caused or contributed to by, the performance or non-performance of the Services by the Supplier or its subcontractors, agents or employees. Required insurance amount: Such amount as prescribed from time to time by the Workers’ Compensation and Injury Management Act 1981 (WA) or any other applicable legislation.
(b) Motor Vehicles and Equipment: Insurance against all loss and/or damage to all items of the Supplier’s plant and equipment (whether owned, hired or leased) used in the performance of the Services. The Supplier must insure all vehicles with (i) compulsory motor vehicle third party insurance, and (ii) comprehensive motor vehicle and third party liability insurance. Required insurance amount: no less than A$10 million for any one occurrence and unlimited as to the number of occurrences.
(c) Public and Product Liability Insurance: Insurance against any claim in respect of loss or destruction of, or injury or damage to, or loss of use of any real or personal property, or any personal injury to or death of any person, arising out of, or caused by the Goods or the performance or non-performance of the Services by the Supplier or its subcontractors, agents or employees or the quality, disposal or sale of products used by the Supplier in the performance of the Services. Required insurance amount: A$10 million in respect of any one claim and unlimited as to the number of claims.
(d) Professional indemnity insurance to A$5 million per claim
29. The Supplier must pay all premiums, self-insured retentions and all deductibles on the policies of insurance when due.
30. Copies of the certificates of currency for the policies must be provided by the Supplier to Ecocentric within 5 Business Days of a written request by Ecocentric.
31. Policies to include a cross liability clause noting that each of the insured parties will be considered a separate entity and the insurance applies to each of the insured as if a separate policy has been issued to each party (except the limit of indemnity) and a waiver of subrogation clause in which the insurer agrees to waive all express or implied rights of subrogation or action against Ecocentric.
32. The Supplier’s insurances are primary to and without any right of contribution from, any insurances or self-insurance Ecocentric may have. The Supplier is not relieved of any liability it may have under this Agreement or at law by reason of the fact that the Supplier holds insurance against that liability or where the level of insurance held is insufficient to cover the extent of the Supplier’s liability. Ecocentric is not required to enforce the indemnities in the Agreement as a precondition for claiming the same loss under the Supplier’s insurances.
33. The Supplier acknowledges and agrees that upon creation of the relevant subject matter, the unencumbered ownership of all Contract IP vests in Ecocentric. The Supplier hereby assigns the unencumbered ownership of all Contract IP to Ecocentric.
34. The Supplier grants to Ecocentric a perpetual, irrevocable, royalty-free, world-wide licence to exercise and sub- licence the Existing IP to the extent required to use, reproduce, deal with, maintain, remedy defects or omissions in, modify and develop the Services.
35. The Supplier must take all steps reasonably necessary to give effect to the requirements of clauses 33 and 34.
36. Ecocentric may, at its option, terminate (in whole or part) the Order. Ecocentric’s only liability to the Supplier arising from this termination is to pay for:
(i)the Goods delivered in accordance with the Agreement prior to the date of termination; and /or as applicable
(ii) Services performed in accordance with the Agreement prior to the date of termination.
37. Clauses 25, 26, 27, 33, 34, 35, 45, 46, 52 and any other clause that by its’ nature is intended to survive termination, survive expiry or termination of this Agreement.
Rates & Prices
38. Except as otherwise expressly provided in the Order, Ecocentric will pay the Supplier at the rates and lump sum prices specified in the Order as the sole consideration for the Supplier's performance of its’ obligations under the Agreement.
39. The rates and lump sum price items included in the Order are fixed and firm amounts and not subject to escalation and are exclusive of GST but include all other taxes. The Supplier is responsible for all costs, expenses and liabilities incurred by the Supplier in connection with the performance of the Agreement, including all costs of delivery including any Customs Duty, storage and packaging of the Goods.
Invoicing & Payment
40. Unless agreed otherwise, the Supplier may raise a tax invoice (with supporting evidence) upon satisfactory completion of the Services and / or upon satisfactory delivery of the Goods. Any progress payments or milestone payments are payments made on account and subject to review and amendment.
41. Ecocentric may withhold payment when the Goods have not been supplied and/or Services not performed in accordance with the Agreement and deduct from payment any money owed by the Supplier to Ecocentric, including any advance payments and any payments made on account, under the Terms or otherwise.
42. The invoice must be addressed to:
Accounts Payable, Ecocentric Group Ltd,
Manning Building, Office 5 Level 1, 135 High Street
FREMANTLE 6160 WA
and must quote the Order Number. If an invoice does not quote the Order Number it will be returned to the Supplier and the Supplier must issue a replacement invoice that complies with this clause 42.
43. Unless stated otherwise on the Order, Ecocentric will pay the Supplier the amount set out in the Invoice within 30 days of the date of the Invoice.
44. The Supplier must apply for and use its best endeavours to obtain the full benefit of all concessions, discounts, including reductions or refunds of Customs Duty. The Order Price shall be adjusted to give Ecocentric the full benefit of all concessions, discounts, reductions and refunds, obtained or which can be claimed.
45. The Supplier must keep confidential, and not use or disclose, any Confidential Information, except as permitted by the Terms or with Ecocentric’s prior written consent. The Supplier must not make any public announcement, issue any media release or disclose for distribution though any communications media any information relating to the Agreement, without Ecocentric’s prior written consent.
46. If Supplier is required by any applicable law, governmental or regulatory authority, court order or other authority of competent jurisdiction, or by a recognized stock exchange to reveal Confidential Information, Supplier shall, to the extent it is legally permitted to do so, provide Ecocentric with as much written notice of the impending disclosure as possible and assist that Party to limit the extent of disclosure.
Ecocentric Provided Information & Requirements
47. The Supplier agrees that it has carefully considered all information provided by Ecocentric prior to the execution of this Agreement and has satisfied itself as to the sufficiency, completeness and accuracy of such information.
48. The Supplier shall promptly give written notice to Ecocentric, prior to use thereof, any defects, ambiguity, omissions or inaccuracy in information furnished by Ecocentric to the Supplier that Supplier may discover.
49. Not withstanding that Ecocentric provided information may not ultimately be complete, sufficient or correct, the Supplier has elected to enter into this Agreement and has made adjustment to its’ rates and prices for such incompleteness, insufficiency or incorrectness.
50. The Supplier may not assign or subcontract any rights or obligations under the Terms without Ecocentric’s prior written consent.
51. Ecocentric may at any time assign, novate or subcontract any or all of our rights and obligations under this Agreement.
52. The Terms will be construed and interpreted in accordance with the laws of Western Australia and the parties submit to the non-exclusive jurisdiction of the courts of that State. Each party waives any right it might have to claim that those courts are an inconvenient forum.
53. A waiver of a breach of any provision of or variation to the Agreement must be in writing. Such waiver shall be effective only in that specific instance and for the purpose for which it was given.
54. Ecocentric has no liability to the Supplier whatsoever for giving a third party access to the Terms or documents relating to the Terms in accordance with the Freedom of Information Act 1992 (WA).
55. In carrying out its obligations under the Agreement, each party is acting as an independent contractor to the other party. Nothing in the Terms creates a partnership, trust, agency or joint venture or a fiduciary relationship between the parties or a contract of employment, unless expressly stated.
56. All notices and other documents given pursuant to the Agreement must be in writing and must be delivered by hand, post, facsimile or email to the receiving party at its address in the Order or as otherwise notified by the receiving party to the sending party.
57. If any part of this Agreement is, or becomes, void or unenforceable, that part is, or will be, severed from this Agreement so that all parts that are not, or do not become, void or unenforceable remain in full force and effect and are unaffected by that severance.
58. This Agreement constitutes the entire agreement between Supplier and Ecocentric covering the subject matter hereof. This Agreement supersedes any and all other agreements between Supplier and Ecocentric, whether written or oral, with respect to the subject matter hereof and contains all representations and warranties.
59. If there is any ambiguity, inconsistency or conflict between the provisions of the Order and the Terms, then the Terms take precedence, except to the extent varied in the Order.
60. This Agreement may be signed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all counterparts together will constitute the same Agreement.