PURCHASE ORDER TERMS AND CONDITIONS FROM KOOROOL CONSTRUCTIONS PTY LTD

 

All invoices must be emailed to office@koorool.com.au

 

  1. INTERPRETATION

    1. In these Purchase Order General Terms and Conditions: Authorisation means any approval, licence, permit, registration, consent, certification, accreditation, declaration, exemption, notarisation or waiver howsoever it is described which is required at Law to be obtained from a government agency in relation to the Project.

    2. Koorool Constructions Pty Ltd means (ABN 14 004 453 570) having its registered business office address at 1 Buckland Street, Clayton VIC 3168, and its related entities as defined under the Corporations Act 2001 (Cth).

    3. Background IP means IP Rights in existence at the date of this PO or come into existence after the date of this PO other than in connection with this PO.

    4. KOOROOL CONSTRUCTIONS PTY LTD Policies and Procedure means KOOROOL CONSTRUCTIONS PTY LTD Pty Ltd policies and procedures of conduct and operation as documented (and updated from time to time) via the KOOROOL CONSTRUCTIONS PTY LTD website. The currently valid and binding version of the Purchase Order Terms and Conditions are available via KOOROOL CONSTRUCTIONS PTY LTD website and upon request via you emailing office@koorool.com.au

    5. Code means the Building Code 2019 as published by the Australian Government from time to time in accordance with the provisions of the Fair Work (Building Industry) Act 2012. Completion Date means the date referred to as such in the PO, if applicable.

    6. CP&E means Construction Plant and Equipment.

    7. Defective means Goods/Services (or any aspect of them) which are not in accordance with the PO or which are damaged, deficient, faulty, inadequate, or incomplete.

    8. Delivery means the provision of the Goods/Services to the Delivery Address.

    9. ‘Delivery To’ means the location specified on the PO where the Goods/Services are to be delivered.

    10. ‘Delivery On’ means the date or period specified in the PO in which the Goods/Services shall be delivered to KOOROOL CONSTRUCTIONS PTY LTD, or if no date is specified the date notified to the supplier by KOOROOL CONSTRUCTIONS PTY LTD.

    11. Day means calendar day.

    12. Defects Liability Period means the period twelve (12) months from the Delivery Date of the Goods/Services or from the date the Goods/Services are accepted whichever is the longer.

    13. Direction includes agreement, approval, authorisation, certificate, decision, demand, determination, instruction, notice, order, permission, request or requirement.

    14. Force Majeure means an event which is not within the control of the party claiming force majeure relief, and which by the exercise of reasonable care, that party is not able to prevent or overcome, including without limitation:

      1. an Act of God;

      2. fires and earthquakes;

      3. an act of war, riots or civil commotion and acts of public enemy’s;

      4. but specifically excludes:

        1. any occurrence which results from the wrongful act or wrongful omission of the affected party or the failure by the affected party to act in a prudent and proper manner and in accordance with Good Industry Practice;

        2. any failure by the affected party to reach agreement with any third party necessary to enable the affected party to perform its obligations under this Agreement; or

        3. in the case of the Supplier, breakdown of the Supplier’s CP&E.

    15. Good Industry Practice means the practices, methods and acts engaged in or approved by a person which, in the conduct of its undertaking, exercises that degree of due diligence, prudence and foresight reasonably and ordinarily exercised by skilled and experienced persons and includes but is not limited to;

      1. compliance with all relevant Australian standards, regulations, industry codes of practice, Laws, and Legislative requirements;

      2. fit for use in Australian conditions;

      3. compliance with industrial awards;

      4. supplying conforming, fit for purpose Goods/Services in a workmanlike manner;

      5. supplying Goods/Services of merchantable quality, new materials and free from defects;

    16. Goods/Services means all work to be carried out, provided and/or supplied by the Supplier in accordance with the PO including;

      1. any materials, supplies, plant, equipment, services, or other things to be supplied as part of the Goods by the Supplier to KOOROOL CONSTRUCTIONS PTY LTD, as specified in this Contract (including as set out in any subsequent PO

      2. all Goods/Services set out in the PO;

      3. other Goods/Services, functions responsibilities and obligations the PO provides that the Supplier has, or will perform or supply;

      4. all Goods/Services, responsibilities, and functions not specifically described in the PO, but which are incidental to, or otherwise necessary for the Supplier to provide the Goods/Services under the PO;

      5. includes where applicable, the supply, hire or provision of any Goods/Services.

    17. GST has the meaning given to that term under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

    18. Guidelines means the Implementation Guidelines for The National Code of Practice for the Construction Industry dated May 2012. A copy of the Guidelines can be located at www.apcc.gov.au. Insolvency Event means the happening of any one of the following events in relation to the Supplier:

      1. the Supplier voluntary or involuntarily suspends the payment of its debts;

      2. where the Supplier is a body corporate, it becomes an externally administered body corporate under the Corporations Act 2001 or steps are taking towards it becoming an externally administered body corporate which are not withdrawn or dismissed within 14 days, or a controller (as that expression is defined by the Corporations Act 2001) is appointed to the Supplier or steps are taken for the appointment of a controller which are not reversed or abandoned within 14 days, or the Supplier is taken to have failed to comply with the statutory demand within the meaning of section 459F of the Corporations Act 2001;

      3. where the Supplier is a natural person the Supplier commits an “act of bankruptcy” as that expression is defined by the Bankruptcy Act 1966.

    19. Insolvent is as defined in the Corporation Act 2001 (Cth).

    20. IP Rights means all copyright and analogous rights in relation to inventions (including patent rights), plant varieties, registered and unregistered trademarks (including service marks), registered designs, confidential information (including trade secrets), know-how, circuit layouts and all other rights throughout the world resulting from intellectual activity in the industrial, scientific or artistic fields. Law/Legislation means the law governing this Contract wherever referred to means the applicable Commonwealth and State legislation, regulations, by-laws and other subordinate legislation and Common Law and equity.

    21. Month means calendar month.

    22. WHS&E means Work Health Safety & Environment.

    23. Owner means the principal under any contract in which KOOROOL CONSTRUCTIONS PTY LTD is the Contractor and for which the Goods/Services are supplied and includes the Owner’s Personnel.

    24. Personnel means:

      1. in relation to KOOROOL CONSTRUCTIONS PTY LTD, any of its employees, agents or representatives;

      2. in relation to the Supplier, any of its employees, sub-contractors, their subcontractors, agents and representatives involved either directly or indirectly in the provision of the Goods/Services; and

      3. in relation to a Subcontractor, any of its employees, agents and representatives involved either directly or indirectly in the provision of the Goods/Services.

      4. In relation to the Owner, any if its agents, contractors, employees’ successors and permitted assigns.

    25. Project means the project so described in the PO.

    26. Project IP means all intellectual property and intellectual property rights created arising or in any way coming into existence in connection with the Project or the supply of Goods/Services pursuant to the PO.

    27. “PO” means a document entitled ‘Purchase Order’ and issued by KOOROOL CONSTRUCTIONS PTY LTD to the Supplier for the supply of Goods/Services.

    28. PO Sum means:

      1. where KOOROOL CONSTRUCTIONS PTY LTD has accepted a fixed price, the fixed price specified in the PO;

      2. where KOOROOL CONSTRUCTIONS PTY LTD has accepted rates, the sum of the products ascertained by multiplying the rates by the corresponding quantities in the schedule of rates specified in the PO; or

      3. where KOOROOL CONSTRUCTIONS PTY LTD has accepted a fixed price and schedule of rates, the aggregate of the sums referred to in paragraphs a) and b);

      4. but excluding any additions or deductions which may be required to be made under the PO. Site means any area where the Goods/Services are to be delivered or the location where the KOOROOL CONSTRUCTIONS PTY LTD project is being performed.

    29. Specification means any specification for the Goods/Services included in the PO and any modification of such Specification notified to the Supplier by KOOROOL CONSTRUCTIONS PTY LTD. Supplier means the legal entity to which the PO is addressed.

    30. Warranty Period means the period of twenty four (24) months commencing on the date of delivery of the Goods/Services or twelve (12) months from the date in which the Goods/Services are accepted whichever is the longer.

  2. SUPPLY OF GOODS/SERVICES

    1. In consideration of payment of the PO Sum by KOOROOL CONSTRUCTIONS PTY LTD, the Supplier must supply the Goods/Services as specified in any PO placed by KOOROOL CONSTRUCTIONS PTY LTD. The Supplier acknowledges that time is of the essence in respect of the Supplier’s obligations to Supply the Goods/Services.

    2. Where the PO relates to any Goods/Services the subject of a contract between the Supplier and KOOROOL CONSTRUCTIONS PTY LTD, the terms and conditions of that contract will prevail to the extent of any inconsistency with these General Terms and Conditions.

    3. This PO commences on the commencement date and expires on the Completion Date.

    4. Nothing in the PO confers upon the Supplier any exclusivity or obligation to request or acquire any minimum level in respect of the Goods/Services Supplied.

  3. KOOROOL CONSTRUCTIONS PTY LTD POLICIES AND PROCEDURES

    1. The Supplier shall and shall ensure its Personnel comply with the policies and rules of KOOROOL CONSTRUCTIONS PTY LTD. The Supplier is expected to and acknowledges that it has been given access to and has read and understands the latest version of the KOOROOL CONSTRUCTIONS PTY LTD Policies and Procedures. The KOOROOL CONSTRUCTIONS PTY LTD Policies and Procedures may be updated from time to time by KOOROOL CONSTRUCTIONS PTY LTD and the onus is upon the Supplier to regularly review the KOOROOL CONSTRUCTIONS PTY LTD Policies and Procedures (The currently valid and binding version of our Policies and Procedures are available upon request via you emailing office@koorool.com.au and ensure that in complying with the obligations under this Clause reference has been given to the latest version of the KOOROOL CONSTRUCTIONS PTY LTD Policies and Rules. KOOROOL CONSTRUCTIONS PTY LTD reserves the right to audit the Supplier’s compliance with the KOOROOL CONSTRUCTIONS PTY LTD Policies and Procedures.

  4. WORK HEALTH, SAFETY (WHS) & ENVIRONMENT

    1. This Clause 20 applies to the extent the Supplier or any of its Personnel are required to be on or near the vicinity of the Site for the purposes of the Supply of the Goods/Services.

    2. The Supplier shall promptly comply, and shall at all times during the supply of the Goods/Services under the PO, take all measures and precautions necessary to ensure all Goods/Services are in accordance with the PO and the Supplier’s Personnel demonstrate Good Industry Practice and any and all applicable health, safety & environmental regulations, policies, procedures of KOOROOL CONSTRUCTIONS PTY LTD and the Owner. These shall include, without limitation any rules or regulations which KOOROOL CONSTRUCTIONS PTY LTD may be operating under whilst on the Site, and includes any requests or Directions made by KOOROOL CONSTRUCTIONS PTY LTD or the Owner to initiate corrective actions for any deficiencies or non-compliances.

    3. In supplying the Goods/Services the safety of the Supplier’s Personnel while on the Site shall be the responsibility of the Supplier. The Supplier indemnifies KOOROOL CONSTRUCTIONS PTY LTD and KOOROOL CONSTRUCTIONS PTY LTD personnel from any death, injury, damage, expense, loss or liability arising from the Supplier's non-observance of any requirements of this Clause twenty (20). The Supplier warrants it will do all things necessary to ensure the health, safety and welfare of its Personnel including (but not limited to): a) ensuring all plant, equipment and substances are maintained and stored in a safe condition and are appropriate for the task for which they are intended; b) providing and maintaining all necessary safety clothing and personal protective equipment for the Supplier’s Personnel; c) providing induction safety and health training prior to any person commencing supply of any Goods/Services under the PO and providing regular ongoing training.

    4. The Supplier agrees and shall cooperate and provide any and all assistance to promptly make available all relevant records and Personnel necessary for any WHS&E audit or assessment for the purpose of ensuring statutory, KOOROOL CONSTRUCTIONS PTY LTD or the Owner’s standards and requirements are met by the Supplier and it’s Personnel (and if applicable, its Suppliers) in the course of the supply of the Goods/Services. If KOOROOL CONSTRUCTIONS PTY LTD considers that the supply of the Goods/Services are not being carried out in accordance with WHS&E requirements and obligations, KOOROOL CONSTRUCTIONS PTY LTD may direct that the supply of the Goods/Services cease immediately until the matter is rectified and/or may notify the relevant Authority.

  5. EMPLOYEE RELATIONS

    1. The Supplier is responsible for conducting its industrial and employee relations and delay or disruption in the provision of the Goods/Services that may arise as a consequence.

    2. The Supplier must ensure the terms and conditions of employment of all of its Personnel engaged in the supply of the Goods/Services under the PO are at all times regulated by an agreement made under the Fair Work Act 2009 (Cth).

    3. KOOROOL CONSTRUCTIONS PTY LTD may, at any time, request the Supplier to withdraw any of its Personnel from providing any part of the Goods/Services and upon such request the Supplier must promptly arrange for the person to cease being involved in any way in the provision of the Goods/Services notwithstanding any provision in any other contract. The Supplier must replace the person with a person of suitable ability, experience and qualifications within a reasonable time period specified by KOOROOL CONSTRUCTIONS PTY LTD.

    4. The Supplier acknowledges KOOROOL CONSTRUCTIONS PTY LTD is required to comply with the Code and Guidelines and the Supplier shall, (and warrants it will) also comply with the Code and Guidelines.

  6. STATUTORY REQUIREMENTS

    1. The Supplier shall obtain all applicable Authorisations required and comply with the requirements of all Law and Legislation and the requirements of all persons exercising statutory authority affecting the supply of the Goods/Services.

    2. The Supplier shall give all notices, make all applications and pay all fees necessary to comply with these requirements.

  7. QUALITY

    1. The Goods/Services shall match the description referred to in the PO.

    2. If the Supplier gave KOOROOL CONSTRUCTIONS PTY LTD a sample or demonstration of the Goods/Services, the Goods/Services supplied shall be of the same nature and quality as the sample/demonstration.

    3. The Supplier shall, if required by KOOROOL CONSTRUCTIONS PTY LTD, establish and maintain a quality system which conforms to the requirements of any applicable Australian Standards and the PO. The Supplier will also provide KOOROOL CONSTRUCTIONS PTY LTD with access to the Supplier's premises and quality system to permit verification activities and quality auditing.

  8. DELIVERY, TITLE & RISK

    1. The Supplier must deliver the Goods/Services to the Delivery Address by the Delivery Date.

    2. The Supplier must ensure the Goods/Services are supplied safely and are suitably packed to avoid damage in transit or in storage.

    3. Packages must be clearly marked with the PO number, item number, destination, quantity, description, date and method of dispatch and weight on each package.

    4. Full unencumbered title of the Goods/Services shall pass to KOOROOL CONSTRUCTIONS PTY LTD upon the earlier of:

      1. KOOROOL CONSTRUCTIONS PTY LTD making payment in full to the Supplier for the Goods/Services under the PO; or

      2. The Goods/Services being delivered to the Delivery Address and accepted by KOOROOL CONSTRUCTIONS PTY LTD.

    5. Risk in the Goods/Services will remain with the Supplier until the Goods/Services are delivered to the Delivery Address and accepted by KOOROOL CONSTRUCTIONS PTY LTD.

  9. SUPPLIER WARRANTIES

    1. In addition to any warranties implied by Law, the Supplier warrants that the Goods/Services shall conform to the requirements of the PO and are in accordance with Good Industry Practice

    2. The Supplier warrants that it will not interfere with the activities of KOOROOL CONSTRUCTIONS PTY LTD or the activities of any other person at the Delivery Address or Site.

    3. The Supplier acknowledges and agrees that any warranty or indemnity provided by the Supplier under the PO is provided for the benefit of KOOROOL CONSTRUCTIONS PTY LTD.

  10. DEFECTS LIABILITY & TESTING

    1. KOOROOL CONSTRUCTIONS PTY LTD will not be deemed to have accepted the Goods/Services until the Goods/Services have been inspected. For the avoidance of doubt, payment shall not be deemed to constitute acceptance of the Goods/Services.

    2. KOOROOL CONSTRUCTIONS PTY LTD may at any time direct that any Goods/Services provided under the PO be examined or tested by a person nominated by KOOROOL CONSTRUCTIONS PTY LTD. The Supplier shall provide such assistance and samples and make accessible such parts of the Goods/Services as may be required. On completion of the tests the Supplier shall make good the Goods/Services, so they fully comply with the specifications and requirements of the PO.

    3. Costs of and incidental to testing shall be paid by the Supplier unless the test shows that the Services provided are in accordance with the PO.

    4. KOOROOL CONSTRUCTIONS PTY LTD may at any time prior to the expiration of the Warranty Period, reject the Goods/Service if KOOROOL CONSTRUCTIONS PTY LTD believes the Goods/Service is defective or does not meet the requirements set out in the PO. KOOROOL CONSTRUCTIONS PTY LTD may unpack, inspect and test the Goods/Services for this purpose.

    5. If KOOROOL CONSTRUCTIONS PTY LTD discovers any material or Goods/Services which are not in accordance with the PO or if the Goods/Services cease to be fit for the purpose required by KOOROOL CONSTRUCTIONS PTY LTD prior to the Completion Date without default on the part of KOOROOL CONSTRUCTIONS PTY LTD, KOOROOL CONSTRUCTIONS PTY LTD may, at its absolute discretion, direct the Supplier to:

      1. remove the defective Goods/Services at the expense of the Supplier; and/or

      2. replace or repair the defective Goods/Services with conforming Goods/Services as required by the PO at the expense of the Supplier; and/or

      3. reimburse KOOROOL CONSTRUCTIONS PTY LTD for any expenses incurred by KOOROOL CONSTRUCTIONS PTY LTD in repairing, re-performing or making good (as the case may be) any Defective Goods/Services.

    6. KOOROOL CONSTRUCTIONS PTY LTD may direct the times within which the Supplier must replace or repair the defective Goods/Services.

  11. GST

    1. For the purposes of this clause, the expressions “adjustment note”, “Australian Business Number”, “GST” and ”tax invoice” shall have the meanings assigned to them in legislation including A New Tax System (Goods and Works Tax) Act 1999.

    2. If GST is imposed on any supply of Goods/Services by the Supplier under or in connection with this PO, the Supplier may recover from KOOROOL CONSTRUCTIONS PTY LTD, in addition to the PO Sum, an amount equal to the GST payable in respect of that Supply.

    3. KOOROOL CONSTRUCTIONS PTY LTD need not make a payment to the Supplier under clause twenty-eight (28) until the Supplier is registered for the purpose of GST and has provided KOOROOL CONSTRUCTIONS PTY LTD with a valid tax invoice which states the following; PO number, Supplier's name; Supplier's Australian Business Number; the words "tax invoice" stated prominently; GST inclusive price; total amount of GST payable; the date of issue; KOOROOL CONSTRUCTIONS PTY LTD’s name; KOOROOL CONSTRUCTIONS PTY LTD ’s address or Australian Business Number; a brief description of Goods/Services supplied and the quantity or extent of each item.

  12. PRICE, INVOICING & PAYMENTS

    1. Upon delivery of the Goods/Services the Supplier shall deliver to KOOROOL CONSTRUCTIONS PTY LTD a valid tax invoice as required under Clause 27.3. Within forty five (45) days of the end of the month in which the valid tax invoice is received by KOOROOL CONSTRUCTIONS PTY LTD, KOOROOL CONSTRUCTIONS PTY LTD shall pay the Supplier the PO Sum for the Goods/Services.

    2. The amount due to the Supplier will be the value of the Goods/Services supplied to KOOROOL CONSTRUCTIONS PTY LTD inclusive of all costs incurred by the Supplier (including all charges for packing, insurance and delivery of the Goods/Services) less amounts already paid and other amounts due from the Supplier to KOOROOL CONSTRUCTIONS PTY LTD which KOOROOL CONSTRUCTIONS PTY LTD is entitled to deduct. The price is inclusive of all taxes and duties, except GST.

    3. If any moneys due to either party remains unpaid, after the date or the expiration of the period within which they should have been paid, then interest at 2% above the Reserve Bank Cash Rate, shall be payable from but excluding the due date for payment to and including the date upon which the money’s are paid.

    4. Deposits to onsite Subcontractors by negotiation.

  13. VARIATIONS

    1. The Supplier shall not vary the PO except with the prior written approval of KOOROOL CONSTRUCTIONS PTY LTD.

    2. KOOROOL CONSTRUCTIONS PTY LTD may omit any part of the supply of Goods/Services.

    3. The Supplier will not be entitled to claim payment for any variation not directed in writing by KOOROOL CONSTRUCTIONS PTY LTD.

    4. Unless KOOROOL CONSTRUCTIONS PTY LTD and the Supplier agree upon a price for a variation, the variation shall be valued by KOOROOL CONSTRUCTIONS PTY LTD. KOOROOL CONSTRUCTIONS PTY LTD may direct the Supplier to provide a detailed quotation for the Goods/Services of a variation.

    5. In valuing a variation, if the PO prescribes specific rates or prices to be applied in determining the value, those rates or prices shall be used. To the extent that this does not apply, reasonable rates or prices shall be used in any valuation.

  14. INDEMNITY AND LIABILITY

    1. The Supplier is liable for and shall indemnify (and keep indemnified) KOOROOL CONSTRUCTIONS PTY LTD and KOOROOL CONSTRUCTIONS PTY LTD ’s Personnel from and against any liability and/or any loss or damage of any kind whatsoever, arising directly or indirectly from any one or more of the following:

      1. any breach of the Supplier’s obligations or any breach of any warranty of the PO by the Supplier;

      2. any negligent act or omission or wilful misconduct by the Supplier or its Personnel arising out of the supply of the Goods/Service under the PO;

      3. the illness, injury or death of any of the Suppliers Personnel arising out of or in connection with the Supply of the Goods/Services under the PO;

      4. any loss or damages arising out of or in connection with any personal injury, illness or death to any person or damage to any property or any other loss or damage of any kind whatsoever caused or contributed to by the supply and/or use of the Goods/Services by the Supplier.

    2. The Supplier shall indemnify KOOROOL CONSTRUCTIONS PTY LTD against any and all costs incurred by KOOROOL CONSTRUCTIONS PTY LTD as a result of any statutory liability imposed on KOOROOL CONSTRUCTIONS PTY LTD in respect of the Supplier’s Personnel.

    3. The Supplier's liability to indemnify KOOROOL CONSTRUCTIONS PTY LTD shall be reduced proportionally to the extent an act or omission of KOOROOL CONSTRUCTIONS PTY LTD contributed to the liability.

    4. The provisions of this clause 30 shall survive termination of this Contract for any reason.

    5. Notwithstanding anything in the PO to the contrary, KOOROOL CONSTRUCTIONS PTY LTD shall not be liable to the Supplier for any consequential, indirect or special loss or damages of any nature whatsoever whether based on warranty, tort (including negligence) or otherwise including (but not limited to) those arising out of delay, loss of product, loss of production, business interruption, loss of revenue or loss of profits.

    6. The effecting of any or approval of any or all insurance provided under the PO shall not in any way limit the liabilities or obligations of the Supplier under other provisions of the PO.

    7. LIQUIDATED DAMAGES

      1. If delivery of the Goods or Services is delayed, KOOROOL CONSTRUCTIONS PTY LTD is entitled to liquidated damages of 0.5% of the total Purchase Order value per calendar day or part calendar day. The total liquidated damages shall not exceed 15% of the total Purchase Order value. In the event that the direct losses incurred by KOOROOL CONSTRUCTIONS PTY LTD due to the delay are higher than the amount of liquidated damages, KOOROOL CONSTRUCTIONS PTY LTD may instead claim compensation for the losses.

      2. In the advent of KOOROOL CONSTRUCTIONS PTY LTD being charged liquidated damages for exceeding overall contract time length from the Owner as a result of late or incorrect supply of goods and services, and/or poor workmanship/quality of supplied goods, these charges (as per building contract) will be deemed the liability of the Supplier or Subcontractor responsible.

  15. DEFAULT AND TERMINATION

    1. If at any time the Supplier suffers an Insolvency Event, KOOROOL CONSTRUCTIONS PTY LTD may immediately terminate the PO by notice in writing to the Supplier.

    2. KOOROOL CONSTRUCTIONS PTY LTD may terminate the PO in whole or in part and with immediate effect, by notice to the Supplier, if:

      1. the Supplier or any Supplier Personnel commits an act of gross negligence, wilful misconduct, fraud or dishonesty in respect of any matter undertaken or required to be undertaken under the PO; or

      2. the Supplier commits a breach of any breach of the PO (incorporating these terms and conditions) which is capable of remedy and fails to remedy that breach at its own expense and to the reasonable satisfaction of KOOROOL CONSTRUCTIONS PTY LTD within seven (7) days of a notice by KOOROOL CONSTRUCTIONS PTY LTD specifying the nature of the breach;

      3. the Supplier commits a breach of any provision of the PO (incorporating these terms and conditions) which is not capable of remedy;

      4. KOOROOL CONSTRUCTIONS PTY LTD is expressly entitled to exercise a right of termination under any other provision of the PO.

    3. KOOROOL CONSTRUCTIONS PTY LTD may at any time terminate the PO in whole or in part, without cause by giving the Supplier no less than fourteen (14) days’ notice in writing and the effective date thereof.

    4. In the event of termination under Clause 31.3 KOOROOL CONSTRUCTIONS PTY LTD shall pay to the Supplier (less any amounts previously paid and subject to any rights KOOROOL CONSTRUCTIONS PTY LTD may have to suspend, withhold or set-off payments):

      1. the price for the Goods/Services provided to KOOROOL CONSTRUCTIONS PTY LTD prior to the effective date of termination and not included in any previous payment by KOOROOL CONSTRUCTIONS PTY LTD;

      2. the cost of materials reasonably ordered by the Supplier for the purpose of providing the Goods/Services, which the Supplier is legally liable to accept and cannot otherwise utilise, but only if the materials become the property of KOOROOL CONSTRUCTIONS PTY LTD;

      3. the reasonable costs of complying with any Direction given by KOOROOL CONSTRUCTIONS PTY LTD upon, or subsequent to, termination.

    5. On the expiration or earlier termination of the PO, the Supplier must:

      1. stop work to the extent required by KOOROOL CONSTRUCTIONS PTY LTD;

      2. take such action as necessary and as KOOROOL CONSTRUCTIONS PTY LTD directs, for the transfer, protection and preservation of the KOOROOL CONSTRUCTIONS PTY LTD’s Property;

      3. do its best to minimise the cost of termination to KOOROOL CONSTRUCTIONS PTY LTD;

      4. within fourteen (14) days of termination or expiration, return to KOOROOL CONSTRUCTIONS PTY LTD (or if requested, erase and/or destroy) all copies in any form of the applicable IP in the possession or control of the Supplier and/or Supplier Personnel.

  16. INTELLECTUAL PROPERTY

    1. KOOROOL CONSTRUCTIONS PTY LTD and the Supplier acknowledge ownership of all Background Intellectual Property (“IP”) remains vested in its creator.

    2. The Supplier gives KOOROOL CONSTRUCTIONS PTY LTD a non-exclusive, royalty free licence to use all the Supplier's Background IP to the extent necessary to enable KOOROOL CONSTRUCTIONS PTY LTD to exercise rights in the Project IP.

    3. The Supplier grants to KOOROOL CONSTRUCTIONS PTY LTD a perpetual, irrevocable, non-exclusive and royalty free licence for KOOROOL CONSTRUCTIONS PTY LTD and others engaged by KOOROOL CONSTRUCTIONS PTY LTD to use, adapt, modify and copy the Supplier’s Background IP.

    4. The Supplier acknowledges and agrees all Project IP is vested in KOOROOL CONSTRUCTIONS PTY LTD and is KOOROOL CONSTRUCTIONS PTY LTD’s property as and when created and the Supplier hereby assigns all rights, title and interest in and to the Project IP to KOOROOL CONSTRUCTIONS PTY LTD.

    5. The Supplier warrants that it owns the IP Rights in the Supplier’s Background IP and that the supply of the Goods/Services does not and will not infringe the rights (including IP Rights) of any third party; The Supplier indemnifies KOOROOL CONSTRUCTIONS PTY LTD, and KOOROOL CONSTRUCTIONS PTY LTD Personnel against any loss or damage (including fees and other legal costs in defending any action) arising out of or in connection with any breach and shall be liable to KOOROOL CONSTRUCTIONS PTY LTD for all costs associated with providing any equivalent goods which do not infringe any IP Rights of any third party.

    6. The Supplier agrees to provide all reasonable assistance KOOROOL CONSTRUCTIONS PTY LTD may request to protect the IP Rights in the Project IP and/or KOOROOL CONSTRUCTIONS PTY LTD’s Background IP.

    7. The Supplier must not disclose, reproduce or otherwise deal with the IP, or allow any other person to do the same, for any purpose other than to provide the Goods/Services pursuant to the PO. 17.

  17. FORCE MAJEURE

    1. A Party will not be liable for any delay or failure to perform any of its obligations under the PO (other than an obligation to pay money) if as soon as possible after the beginning of the Force Majeure affecting the ability of the Party to perform any of its obligations under the PO, it gives a notice to the other party that complies with Clause

    2. A notice given under Clause 33.1 must:

      1. Specify the obligations the Supplier cannot perform

      2. Fully describe the Force Majeure

      3. Estimate the time during which the Force Majeure will continue; and

      4. Specify the measures proposed to be adopted to remedy or abate the Force Majeure.

    3. The Party prevented from carrying out its obligations under the PO as a result of Force Majeure must:

      1. remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible; and

      2. take all action reasonably practicable to mitigate any Liabilities suffered by the other Party as a result of its failure to carry out its obligations under the PO.

  18. CONSTRUCTION PLANT & EQUIPMENT

    1. If required to provide Construction Plant and Equipment (“CP&E”) on Site, the Supplier agrees to provide the CP&E at its own risk and expense and shall ensure that all CP&E:

      1. is properly manufactured to specification of merchantable quality and is fit for the purpose for which it is intended;

      2. is of such safety standard as KOOROOL CONSTRUCTIONS PTY LTD is entitled to expect;

      3. complies with all relevant Laws and Australian industry and safety standards;

      4. is inspected and tested to ensure it is safe and fit for purpose before use at the Site (and appropriate certification records to this effect are maintained); and

      5. is operated by appropriately skilled and qualified Supplier’s Personnel.

    2. The Supplier shall ensure and is obligated to perform all required servicing, maintenance, repairs and for the supply of equipment, materials, wearing parts, tyres and consumables for all CP&E supplied under the PO to a safe, operable, and in accordance with Good Industry Practice throughout the term of the PO.

    3. KOOROOL CONSTRUCTIONS PTY LTD may reject any item of CP&E which it determines is unsuitable for the purposes of the PO. If any item is so rejected then it shall either be (at the sole discretion of KOOROOL CONSTRUCTIONS PTY LTD) repaired or replaced to the reasonable satisfaction of KOOROOL CONSTRUCTIONS PTY LTD within two (2) days of notification by KOOROOL CONSTRUCTIONS PTY LTD.

    4. If the Supplier fails to comply with a Direction to cease using unsafe CP&E, KOOROOL CONSTRUCTIONS PTY LTD may perform or have performed the obligation on the Supplier's behalf and the costs and expenses incurred by KOOROOL CONSTRUCTIONS PTY LTD are recoverable from the Supplier as a debt due and payable to KOOROOL CONSTRUCTIONS PTY LTD.

    5. Any CP&E or other property that KOOROOL CONSTRUCTIONS PTY LTD provides to the supplier to enable it to complete its obligations under the PO (KOOROOL CONSTRUCTIONS PTY LTD Property) remains the property of KOOROOL CONSTRUCTIONS PTY LTD and must only be used for the purposes of fulfilling the Supplier’s obligations under the PO. KOOROOL CONSTRUCTIONS PTY LTD may register a security interest under the Personal Property Securities Act 2009 over and in respect of all KOOROOL CONSTRUCTIONS PTY LTD property that is provided to the Supplier under this clause or otherwise.

    6. Should the Supplier‘s Personnel be permitted to use any CP&E belonging to KOOROOL CONSTRUCTIONS PTY LTD, then such use shall be on the condition that no warranty or other liability on the part of KOOROOL CONSTRUCTIONS PTY LTD will be created or implied as to the condition or suitability of the CP&E.

    7. The Supplier must keep KOOROOL CONSTRUCTIONS PTY LTD’s CP&E well maintained, in good working order and is responsible for and must compensate KOOROOL CONSTRUCTIONS PTY LTD for, any loss, waste or damage to KOOROOL CONSTRUCTIONS PTY LTD’s CP&E by the Supplier’s Personnel.

    8. If the Supplier is providing CP&E to KOOROOL CONSTRUCTIONS PTY LTD (Dry Hire) the Supplier warrants that CP&E shall be provided in accordance with Clause 34.1 1) – 4) inclusive.

    9. The Supplier further warrants that the equipment shall achieve a minimum availability during the hire of 90%.

    10. KOOROOL CONSTRUCTIONS PTY LTD shall;

      1. ensure the Supplier’s CP&E is Operated by suitably skilled and qualified KOOROOL CONSTRUCTIONS PTY LTD Personnel;

      2. whilst under the care of KOOROOL CONSTRUCTIONS PTY LTD, KOOROOL CONSTRUCTIONS PTY LTD is responsible for the operation and direct supervision of the Supplier’s CP&E;

      3. if the Supplier’s CP&E is required to be maintained by KOOROOL CONSTRUCTIONS PTY LTD, it shall be maintained in accordance with OEM specifications;

      4. take proper care of the supplier’s CP&E and keep the Supplier’s CP&E in good working order and condition (reasonable wear and tear excepted);

      5. ensure the CP&E is used in accordance with the OEM or Supplier’s instructions and recommendations and only used for KOOROOL CONSTRUCTIONS PTY LTD business operations and for the purpose for which they are designed;

      6. not part with possession of the supplier’s CP&E except to the extent permitted by this PO;

      7. not modify the Supplier’s CP&E in any unauthorised manner;

      8. KOOROOL CONSTRUCTIONS PTY LTD shall return the Supplier’s CP&E to the Supplier in good working order and condition (reasonable wear and tear excepted) on the Completion Date.

    11. KOOROOL CONSTRUCTIONS PTY LTD shall only be liable to the Supplier for the actual hours the CP&E works. If minimum hours apply to the Hire, Minimum hours shall be reduced proportionately to the extent the equipment does not meet the availability requirement specified in Clause 34.9.

    12. In the event of a breakdown of the Supplier’s CP&E, KOOROOL CONSTRUCTIONS PTY LTD shall notify the Supplier as soon as practicable of the breakdown (“Breakdown Notice”), within 48 hours (or such time agreeable by KOOROOL CONSTRUCTIONS PTY LTD in writing) of receipt of the Breakdown Notice, the Supplier shall, at the supplier’s expense, repair or replace the CP&E to the satisfaction of KOOROOL CONSTRUCTIONS PTY LTD. If the Supplier does not repair or replace the CP&E to the satisfaction of KOOROOL CONSTRUCTIONS PTY LTD, KOOROOL CONSTRUCTIONS PTY LTD may at its sole discretion, repair or replace the equipment, any expense incurred by KOOROOL CONSTRUCTIONS PTY LTD shall be a debt due and payable by the Supplier to KOOROOL CONSTRUCTIONS PTY LTD.

  19. CONFIDENTIALITY AND MEDIA

    1. The Supplier shall not (except in the proper course of its duties under the PO or as required by Law or KOOROOL CONSTRUCTIONS PTY LTD) disclose to any person any information relating to KOOROOL CONSTRUCTIONS PTY LTD of which it has come into the possession of as a result of the PO or the negotiations preceding the PO.

    2. The Supplier shall ensure the information is kept confidential and return or destroy the same within three (3) days following written request by KOOROOL CONSTRUCTIONS PTY LTD.

    3. The Supplier may not discuss the Goods/Services or the PO with any third party or the media nor make any public statement about the PO or anything related to the subject matter of the PO without the prior written consent of KOOROOL CONSTRUCTIONS PTY LTD.

    4. The provisions of this clause 35 shall survive termination of the PO.

  20. INSURANCE

    1. Insurances type and coverage to be provided by the Supplier. Before commencing a supply of Goods/Services under the PO, the Supplier shall affect and maintain with an insurer on terms approved in writing by KOOROOL CONSTRUCTIONS PTY LTD, suitable policies in respect of the following insurances:

      1. Worker’s Compensation insurance, complying with all statutory requirements providing any compulsory statutory workers compensation benefits in respect of the Suppliers “workers”, as that expression is defined by the Workers Compensation and Rehabilitation Act 2003.

      2. Motor Vehicle insurance which is compulsory under the Laws for the time being in force in the State or Territory where the Goods/Services are supplied governing the use of registered motor vehicles. The limit of liability shall not be less than $20 Million for any one occurrence and unlimited as to the number of occurrences.

      3. Comprehensive (including Third Party) insurance covering all mechanically-propelled vehicles required to be licensed in the State or Territory where the Goods/Services are supplied, in an amount of not less than $20 Million in respect of any one incident or series of incidents arising out of one event and unlimited to the number of events.

      4. Insurance covering the Supplier’s CP&E, including all mobile equipment, tools, tackle, Personnel’ effects, and the like, and all other property for which the Supplier is responsible, for an amount of not less than market value (unless otherwise insured to the satisfaction of KOOROOL CONSTRUCTIONS PTY LTD).

      5. Third Party Public and Product Liability insurance covering the Supplier against liability with respect to injury (including death) and/or property damage in respect of the supply of Goods/Services under the PO with a liability limit of not less than $20 Million in respect of any one claim and unlimited as to the number of claims (with the exception of Products Liability which shall be for an amount of $20 Million for any one claim and in the aggregate), including KOOROOL CONSTRUCTIONS PTY LTD as an additional insured with respect to the liability incurred as a result of the acts or omissions of the Supplier and provide a waiver of subrogation in favour of KOOROOL CONSTRUCTIONS PTY LTD. The policy of insurance taken out under this clause must extend to and cover all persons upon the Site including workers, contractors, agents and other engaged by KOOROOL CONSTRUCTIONS PTY LTD.

      6. Professional Indemnity Insurance, if the Services to be supplied include Professional Services, the Supplier must take out professional indemnity insurance in respect of the services to cover liability to a limit of not less than $2 Million in relation to any one claim.

    2. Period of Insurances: All insurances under clause 36.1 shall be maintained for the duration of the PO, with the exceptions being;

      1. Workers Compensation insurance which shall be maintained for so long as the Supplier’s Personnel or those for whom the Supplier is responsible are located on the Site; and

      2. Professional Indemnity insurance which shall be in force for seven (7) years following completion of the PO. 

    3. Other Insurances: The Supplier acknowledges that it is responsible for the maintenance of any other insurance required by Law or regarded as sound commercial practice.

    4. Inspection of Policies Upon written request the Supplier shall provide to KOOROOL CONSTRUCTIONS PTY LTD, a Certificate of Currency for each of the policies to be affected by it under the PO.

    5. Failure to Provide Proof of Insurance If, after being requested in writing to do so, the Supplier fails to provide evidence of compliance with its insurance obligations under the PO to KOOROOL CONSTRUCTIONS PTY LTD’s satisfaction, KOOROOL CONSTRUCTIONS PTY LTD may, without prejudice to other remedies:

      1. effect and keep in force any such insurance;

      2. refuse payment under the PO until evidence of compliance with the Supplier’s insurance obligations is provided to the satisfaction of KOOROOL CONSTRUCTIONS PTY LTD;

      3. recover from the Supplier any costs incurred by KOOROOL CONSTRUCTIONS PTY LTD in effecting the required insurances.

  21. WORKING HOURS

    1. No part of the Services referred to in the PO and executed on the Site shall be executed outside the roster cycle (where applicable), ordinary working hours or on other than ordinary working days without KOOROOL CONSTRUCTIONS PTY LTD ’s prior written consent. Working hours applicable to the Site are as agreed between KOOROOL CONSTRUCTIONS PTY LTD and the Supplier.

    2. KOOROOL CONSTRUCTIONS PTY LTD may from time to time, by notice in writing to the Supplier and subject to reasonable notice, vary the roster cycle and workforce hours of the Supplier.

  22. CLEANING UP

    1. The Supplier shall keep the Site clean and tidy and on completion of the Services will remove all the Supplier's CP&E and leave the Site clean and tidy and ready for immediate use.

  23. DISPUTE RESOLUTION

    1. KOOROOL CONSTRUCTIONS PTY LTD and the Supplier must follow the requirements of this Clause thirty-nine (39) if a dispute arises in connection with the PO including a dispute concerning a claim in tort, under statute, or on any other basis in Law or equity available under the Law governing the PO (“Dispute”) and then, only after a period of twenty eight (28) days after receipt of such Dispute Notice has elapsed may either party commence legal proceedings (with the exception of seeking injunctive or urgent declaratory relief).

    2. If a dispute arises either party may by hand or registered post give the other party a written notice of dispute (“Dispute Notice”) identifying and detailing the Dispute including notice that it is a notice under this Clause thirty-nine (39).

    3. Within seven (7) days of receipt of a Dispute Notice, representatives of the parties having authority to bind the parties shall confer to resolve the Dispute or agree on a method of doing so and whether that method shall be binding.

  24. DISCRIMINATION AND HARASSMENT

    1. Discrimination is treating, or proposing to treat, someone unfavourably because of a personal characteristic protected by the law, such as sex, age, race or disability. It is unlawful to discriminate against someone because of a protected personal characteristic and this will not be tolerated at KOOROOL CONSTRUCTIONS PTY LTD. Protected personal characteristics under federal discrimination law include:

      1. A disability, disease or injury, including work-related injury;

      2. Parental status or status as a carer;

      3. Race, colour, descent, national origin or ethnic background;

      4. Age;

      5. Gender, gender identity;

      6. Sexual orientation; Industrial activity;

      7. Religion;

      8. Pregnancy and breastfeeding;

      9. Marital status;

      10. Political opinion;

      11. Social origin;

      12. Medical record;

      13. An association with someone who has, or is assumed to have, one of these characteristics, such as being the parent of a child with a disability.

    2. Discrimination, bullying and sexual harassment are unacceptable at KOOROOL CONSTRUCTIONS PTY LTD and are unlawful under the following legislation:

      1. Sex Discrimination Act 1984 (Cth)

      2. Racial Discrimination Act 1975 (Cth)

      3. Disability Discrimination Act 1992 (Cth)

      4. Age Discrimination Act 2004 (Cth)

      5. Australian Human Rights Commission Act 1986 (Cth).

    3. If someone is being bullied because of a personal characteristic protected by equal opportunity law, it is a form of discrimination. Bullying can take many forms, including jokes, teasing, nicknames, emails, pictures, text messages, social isolation or ignoring people, or unfair work practices. Under Federal law, this behaviour does not have to be repeated to be discrimination – it may be a one-off event. Bullying is unacceptable in KOOROOL CONSTRUCTIONS PTY LTD and may also be against occupational health and safety law. Behaviours that may constitute bullying include:

      1. sarcasm and other forms of demeaning language;

      2. threats, abuse or shouting;

      3. coercion;

      4. isolation;

      5. inappropriate blaming;

      6. ganging up;

      7. constant unconstructive criticism;

      8. deliberately withholding information or equipment that a person needs to do their job or access their entitlements.

  25. MISCELLANEOUS

    1. Waiver of any right arising from a breach of the PO must be in writing and executed by KOOROOL CONSTRUCTIONS PTY LTD. KOOROOL CONSTRUCTIONS PTY LTD not exercising a right, remedy or power at any time does not mean KOOROOL CONSTRUCTIONS PTY LTD cannot exercise it later.

    2. The PO shall be governed by and construed in accordance with the Laws of the State of Victoria and the parties submit to the jurisdiction of the Courts of Victoria.

    3. The PO contains the entire Agreement between the Supplier and KOOROOL CONSTRUCTIONS PTY LTD and no regard shall be had to any prior dealings between the parties, whether oral or in writing. To the extent the Suppliers terms and conditions are supplied with the Goods/Services, those terms and conditions will be of no legal effect and will not constitute part of the PO (even if signed by any representative of KOOROOL CONSTRUCTIONS PTY LTD).

    4. Should any of the PO be invalid, illegal, unenforceable or void, that part shall be severed from the PO. The remaining terms will not be affected, and the PO will be construed as if such invalid, illegal, unenforceable or void term had never been included in the PO.

    5. The Supplier shall not, without the prior written approval of KOOROOL CONSTRUCTIONS PTY LTD, assign, novate or subcontract the PO or any payment or obligation hereunder.

    6. Nothing in the PO constitutes a joint venture, agency, partnership or any other fiduciary relationship between KOOROOL CONSTRUCTIONS PTY LTD and the Supplier. At all times during the performance of the Supplier's obligations under the PO, the Supplier is an independent contractor and not an employee or agent of KOOROOL CONSTRUCTIONS PTY LTD.

    7. Upon completion, termination or cancellation of the PO and prior to the final payment to the Supplier, the Supplier shall fully release KOOROOL CONSTRUCTIONS PTY LTD (and KOOROOL CONSTRUCTIONS PTY LTD Personnel) from any and all liability in relation to the PO. Acceptance of the final payment shall be deemed to constitute such release and discharge.

    8. Without prejudice to any other rights, KOOROOL CONSTRUCTIONS PTY LTD may deduct from any monies which may be, or become, payable to the Supplier any money due from the Supplier to KOOROOL CONSTRUCTIONS PTY LTD. Nothing in this clause shall affect the right of KOOROOL CONSTRUCTIONS PTY LTD to recover from the Supplier the whole of the debt or any balance remaining owing after deduction. If it is subsequently found that KOOROOL CONSTRUCTIONS PTY LTD was not entitled to deduct any monies, then it must immediately repay those monies to the Supplier

    9. Products installed, used, and/or supplied must be as specified. Substitutions can only be made with written consent from KOOROOL CONSTRUCTIONS PTY LTD.

      1. If Supplier/Subcontractor was asked to present Fire Hazard Properties Report for a specific product prior to install, then this product must be used for the project of which this PO relates. Any costs involved in rectifying a product that was not approved for substitution will fall upon the Supplier/Subcontractor.

Koorool Constructions

ABN: 14 004 453 570

1 Buckland St
Clayton, 3168
Australia

©2018 by Koorool Constructions Pty Ltd