Graincorp standard purchase terms – Australia
1. APPLICATION OF PURCHASE TERMS
Unless otherwise agreed in writing by GrainCorp (including in any formal contract entered into by GrainCorp and the Supplier):
(a) these Purchase Terms (as varied from time to time) and the relevant Order will govern the carrying out and completion of the Works by the Supplier;
(b) if there is any inconsistency (whether expressly referred to or to be implied from these Purchase Terms or otherwise) between the provisions of these Purchase Terms and those of any document of the Supplier, the provisions of these Purchase Terms prevail to the extent of inconsistency; and
(c) the Supplier has been engaged to undertake the Works on the basis that the Supplier asserts its expertise to undertake all requirements of the Order and has full notice of the purpose for which GrainCorp requires them.
Capitalised words not defined in these Purchase Terms have the meaning given to them in the Order.
“Include” or “including” are not words of limitation.
In these Purchase Terms:
(a) Associates includes the Supplier’s employees, agents, subcontractors, suppliers, and any other party for whom the Supplier is responsible.
(b) Business Day means any day that is not a Saturday, Sunday or gazetted public holiday in the Relevant Jurisdiction.
(c) Chain of Responsibility means those elements of the Heavy Vehicle National Law relating to speed, fatigue, mass, maintenance and load securing as defined under the Heavy Vehicle National Law.
(d) Complete means:
(i) the Works are fully complete in accordance with the requirements of the Order except for minor omissions and defects the existence and rectification of which we consider will not interfere with our use and/or occupation of the Works;
(ii) the Works are fit for their lawful use and the Supplier has provided GrainCorp with all approvals which are required under any law to do so; and
(iii) the Supplier has provided GrainCorp with all as-built documentation and other documents required by the Order,
and Completion means the stage when the Works are Complete.
(e) Date for Completion means the delivery date specified on the Order or as may be adjusted under the Order;
(f) Defects Liability Period means the period which commences on Completion and ends 12 months after Completion or some other period if specified in the Order;
(g) Heavy Vehicle National Law means the Heavy Vehicle National Law administered by the National Heavy Vehicle Regulator.
(h) Laws includes:
(i) acts, ordinances, regulations, by-laws, orders, awards and proclamations of the Commonwealth and the Relevant Jurisdiction;
(ii) certificates, licences, consents, permits, approvals, industry codes of practice, and requirements of organisations having jurisdiction applicable to the Works; and
(iii) fees and charges payable in connection with the above,
(i) National Heavy Vehicle Regulator means the Commonwealth department known as the National Heavy Vehicle Regulator.
(j) No Claim means no claim for money or adjustment to the Price or for an extension of time to the Date for Completion or for costs, expenses, loss or damage or other relief on any basis whatsoever whether under the Order, otherwise at law or in equity.
(k) GrainCorp means the company from the GrainCorp Limited group set out in any Order.
(l) GST means goods and services tax and has the same meaning given in the GST Act and GST Act is a reference to A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended.
(m) Intellectual Property Rights includes, but is not limited to, present and future rights in trademarks, trade names, copyright, patents, designs, business names, brands, logos, inventions, scope Documents, formulations, tools, trade secrets, and know how, whether or not registered or registrable anywhere in the world.
(n) Order means any purchase order from GrainCorp authorising Works to be carried out by the Supplier which Order includes by reference these Purchase Terms even if these Purchase Terms are not attached to the Order.
(o) Price means the amount payable by GrainCorp to the Supplier under the Order of the Works (as adjusted in accordance with the Order.
(p) Purchase Terms means these purchase terms and conditions.
(q) Scope Documents means all specifications, drawings and requirements provided by GrainCorp or agreed to by the Supplier in relation to the Works, including those provided prior to the date of these Purchase Terms and the Order.
(r) Site means the lands and other places which are from time to time made available to the Supplier by GrainCorp for the purposes of the Works and which may be further described in the Order.
(s) Supplier means the person or entity specified as the Supplier on the Order.
(t) Relevant Jurisdiction means the State or Territory in which the Works are located.
(u) Works means the work required to be delivered by the Supplier under the Order and work under the Order means everything the Supplier must do and supply to complete the Works.
3. BASIS OF WORKS
Except as otherwise expressly agreed in writing signed by both the Supplier and GrainCorp, the Order is:
(a) an offer, which is accepted by the Supplier upon the earlier of the Supplier commencing the work under the Order or the Supplier communicating acceptance of the Order to GrainCorp; and
(b) constitutes the sole and exclusive agreement between the parties with respect to the carrying out of the work under the Order.
No terms and conditions stated by the Supplier in accepting or acknowledging the Order form part of or have any effect in relation to the Order. This is the entire agreement between the parties about the Works and supersedes any other agreement or negotiations between the parties.
The Supplier must appoint a representative for the duration of the Works who is acceptable to GrainCorp, to personally superintend the carrying out of the Works. Any directions given by GrainCorp (including by its Representative) to the Supplier’s representative will be deemed within the Supplier’s knowledge.
GrainCorp may direct that any person who in GrainCorp’s reasonable opinion is guilty of misconduct, is incompetent, negligent or otherwise interfering with the orderly progress of the Works or other work at the Site be removed from the Site or the Works.
The Supplier must:
(a) ensure that it and (as applicable) its Associates are appropriately qualified, skilled and if applicable licensed to carry out the Works;
(b) attend meetings as reasonably required by GrainCorp in relation to the Works or the Site;
(c) not subcontract any part of the Works without the prior written approval of GrainCorp; and
(d) cooperate and coordinate with GrainCorp and any other Supplier on the Site.
5. OBLIGATIONS AND WARRANTIES
The Supplier must:
(a) carry out and complete the Works to GrainCorp’s reasonable satisfaction in a competent manner, with due diligence and without delay;
(b) comply with the directions of GrainCorp representatives;
(c) comply with and ensure the Works comply with any design drawings or plans, policy, procedure or quality system notified to the Supplier;
(d) use suitable new materials and proper and tradesman-like workmanship;
(e) provide all labour, materials, tools, plant and everything required to perform the Works;
(f) obtain all permits, approvals and consents necessary to carry out and complete the Works (unless GrainCorp provides notice in writing that GrainCorp will obtain them) and comply with those permits, approvals and consents;
(g) ensure the Works comply with all applicable Laws;
(h) comply with the Heavy Vehicle National Law/Chain of Responsibility provisions; and
(i) perform the Works in such a manner to ensure that the Works comply with the Order,
and the Supplier warrants that:
(j) the Works when Complete will comply the Order and all requirements stipulated by GrainCorp including any design drawings or plans provided by GrainCorp or GrainCorp’s design consultants;
(k) any documents, design or method of working the Supplier provides to GrainCorp in connection with the Works do not infringe any Intellectual Property Rights of a third party;
(l) the Works when Complete are fit for the purpose which the Supplier has been notified GrainCorp intends to use them or which they are commonly used or which can be reasonably inferred;
(m) the Supplier will at all times exercise a high standard of skill, care and diligence in the execution and Completion of the Works; and
(n) goods or materials the Supplier supplies, are free from all encumbrances and all other interests (including any security interest as defined in the Personal Property Security Act 2009 (Cth)).
Where the Works require any design to be provided by the Supplier:
(a) the Supplier warrants that any design carried out under the Order will be fit for its intended purpose and will be in accordance with the requirements set out in the Order and that the Works, when Complete will be fit for their intended purpose;
(b) the Supplier must ensure that its design is submitted to GrainCorp for review in accordance with GrainCorp’s requirements and in any event within sufficient time so as not to delay the carrying out of the Works;
(c) GrainCorp may (but is under no obligation to) review the design and require changes to the design so that it complies with GrainCorp’s requirements. The Supplier must amend the design accordingly unless the Supplier promptly notifies GrainCorp in writing that doing so would result in the Works not complying with the Order or the Supplier being unable to comply with its obligations under the Order; and
(d) the Supplier may not carry out any construction work in relation to its design unless GrainCorp has reviewed the design and advised that it has no comments or advised that it does not wish to review the design.
Where the Supplier is required to perform the Works according to any design drawings or plans provided by GrainCorp or GrainCorp’s design consultants, the Supplier agrees to promptly comply with all directions given by GrainCorp or GrainCorp’s design consultants.
7. WORK AT THE SITE
GrainCorp will make the Site available to the Supplier for the purpose of carrying out the Works although the Supplier may not have exclusive possession.
In carrying out the Works the Supplier must:
(a) keep the Site clean and tidy and free of rubbish;
(b) comply with any Site policies or requirements notified to the Supplier;
(c) not cause any harm or damage to the environment or the work of any other Suppliers; and
(d) prevent nuisance and unreasonable noise or other emissions and disturbance.
The Supplier is responsible for the care of the Works until Completion and the Supplier must take all measures to protect people from injury and property (including the Works) from loss and damage.
If GrainCorp has to carry out urgent works to protect persons or property which should have been done by the Supplier, GrainCorp can recover from the Supplier the cost incurred as a debt due and owing from the Supplier.
The Supplier acknowledges that GrainCorp may continue its normal operations at and in the vicinity of the Site while the Works are undertaken and must:
(e) only carry out the Works during the specified working hours on specified working days;
(f) carry out the Works so as not to disrupt, interrupt or interfere with GrainCorp’s normal operations; and
(g) ensure the continuity of all access and services necessary for GrainCorp to continue normal operations.
The Supplier must carry out the Works in accordance with:
(a) all relevant workplace health and safety Laws and requirements;
(b) GrainCorp’s workplace health and safety plans and requirements;
(c) the directions of any safety officer appointed by GrainCorp; and
(d) if the Supplier is not the ‘principal Supplier’ for the Works, the directions of the ‘principal Supplier’,
The Supplier must and must ensure its Associates:
(e) comply with all Safety Requirements;
(f) cooperate, consult and coordinate activities with GrainCorp and any of GrainCorp’s other Suppliers, so as to enable GrainCorp to comply with its obligations under all relevant Safety Requirements;
(g) maintain appropriate safety precautions and programs so as to prevent injury to persons or damage to property on, about or adjacent to the Site and the work under the Order;
(h) comply with any site specified induction program established for the Works or the Site;
(i) promptly notify, provide information and cooperate with GrainCorp with respect to any incident that is required to be reported to any authority;
(j) provide assistance, access to the Site and to all relevant documentation to enable GrainCorp to undertake any audit, checks or observations deemed appropriate; and
(k) keep records sufficient to evidence compliance with this clause and make those records available for inspection and copying upon written request.
GrainCorp may appoint the Supplier as the ‘principal Supplier’ in which case the Supplier is granted access and control of the Site sufficient to discharge those obligations and the Supplier indemnifies GrainCorp for any loss or damage suffered or incurred as a result of a failure to discharge the obligations of the ‘principal Supplier’ in accordance with all Laws.
9. VARIATION TO WORK
At any time GrainCorp may direct the Supplier to vary the Works including by increasing, decreasing, omitting or changing the Works. If the direction will cause the Supplier to incur more or less cost, the Supplier must notify GrainCorp prior to carrying out the variation, giving details of:
(a) the difference in cost;
(b) any effect on the Date for Completion; and
(c) whether the variation is in conflict with any Laws.
If the Supplier considers that it has been directed to carry out a variation, but GrainCorp has not given a written notice expressly identifying the variation to the Works, the Supplier must give written notice to GrainCorp giving the Supplier’s opinion and the notice above. If the Supplier does give the notice above before commencing work on the variation, the Supplier will have No Claim in relation to the direction or the varied work.
The price of a variation will be determined by agreement between the parties or if not agreed, by GrainCorp using rates and prices stated in the Order or, if not applicable, reasonable rates and prices.
If GrainCorp directs the Supplier to omit Works from the Order, GrainCorp may carry out that work itself or by engaging a third party and the Supplier has No Claim.
10. TIME FOR PROVISION OF THE WORKS
The Supplier must Complete the Works in accordance with any program provided and by the Date for Completion.
If the Supplier is delayed in carrying out the Works for any reason the Supplier must promptly notify GrainCorp in writing. If the Supplier is delayed in carrying out the Works by any act or omission of GrainCorp (Qualifying Delay) the Supplier must notify GrainCorp in writing within 2 days after the delay commences giving details of the delay.
Provided that the Supplier has:
(a) given the notice in accordance with this clause;
(b) actually been delayed in Completion of the Works by the Date for Completion by a Qualifying Delay; and
(c) taken all reasonable steps to mitigate the delay,
GrainCorp will extend the Date for Completion by a period equal to the delay.
The Supplier has No Claim if GrainCorp does not grant an extension because the Supplier failed to comply with the requirements of the clause, and the granting of an extension of time is the Supplier’s sole remedy for delay or disruption caused to the Works. GrainCorp may extend the Date for Completion at any time and from time to time, without any obligation to act for the Supplier’s benefit and for any reason.
If the Works are not Complete by the Date for Completion, GrainCorp may deduct from any payment to the Supplier, set off against any security or otherwise recover from the Supplier as a debt due and owing, liquidated damages at the rate set out in the Order or if no rates is set out in the Order then GrainCorp’s actual loss and damages as a result of the Supplier’s failure.
GrainCorp may suspend the Works or access to the Site at any time considered necessary. The Supplier has No Claim against GrainCorp unless the suspension was due to GrainCorp’s default or GrainCorp’s convenience.
The Supplier must give GrainCorp written notice when it considers that Completion has been achieved and GrainCorp’s representative will inspect the Works. After the inspection GrainCorp will:
(a) issue the Supplier with a certificate of Completion if Completion has been achieved; or
(b) advise the Supplier what further steps need to be taken before Completion is achieved and the provisions of this clause 11 will reapply.
If at any time GrainCorp considers that the Works are not in accordance with the Order, GrainCorp may notify the Supplier and the Supplier must rectify the defective Works within the time directed. Within 10 days after Completion the Supplier must complete the rectification of any defects which existed in the Works at Completion.
Any Defects Liability Period is automatically extended by a further period (of the same duration but commencing on the date the rectification work is complete) in relation to the rectified Works.
If the Supplier does not rectify the defective Works so that they comply with the Order within the time directed, GrainCorp may have the Works rectified and the cost of doing so will be a debt due and owing from the Supplier to GrainCorp.
The Supplier is not entitled to any payment in respect of that part of the Works which is defective until the defective part is rectified.
13. RISK AND TITLE IN GOODS
If the Works involves the supply of goods, property and risk in the goods will pass to GrainCorp free of encumbrances and all other adverse interest (including any security interest as defined in the Personal Property Security Act 2009 (Cth)) on the earlier of payment by GrainCorp or delivery of the goods to the Site.
The Supplier is required to maintain at its own expense the following insurances:
(a) contract works insurance which names GrainCorp as an insured and covers the Works against loss and damage for the full reinstatement value at all times until Completion;
(b) public and products liability insurance for the duration of the Works with coverage of not less than $20 million for any one occurrence;
(c) where the Order includes the carrying out of any design or professional services, professional indemnity insurance with coverage of no less than $5 million (unless otherwise stated on the Order) for any one claim and for a period of 7 years after Completion; and
(d) workers’ compensation insurance as required by applicable legislation.
Within 5 days of a request from GrainCorp, the Supplier must provide GrainCorp with written evidence to GrainCorp’s reasonable satisfaction that the Supplier has complied with its obligations to effect and maintain insurance in accordance with this Order. If the Supplier fails to effect and maintain the insurances in accordance with this Order or comply with the request for written evidence:
(e) the Supplier is not entitled to claim payment from GrainCorp for carrying out the Works;
(f) the Supplier will be in breach of this Order; and
(g) GrainCorp may effect the insurances and recover this cost from the Supplier as a debt due and owing.
The Supplier may make claims for payment of the Price at the times stated in the Order or if not stated on the 25th day of each month until Completion and then within 15 Business Days after Completion. Claims for payment must not claim payment for any goods or materials not incorporated into the Works at the Site.
Claims must be:
(a) based on the value of the Works the Supplier has completed at that time and be supported by appropriate evidence; and
(b) show the GST exclusive Price, the amount of any GST charged shown as a separate item, the GST inclusive Price and comply in all other respects with the GST Act.
If GrainCorp disagrees with any amount claimed for payment, GrainCorp will, within 15 Business Days after receiving the Supplier’s payment claim, provide the Supplier with a payment schedule which states the amount GrainCorp determines is payable and the reasons why the amounts are different.
Provided the Supplier has issued GrainCorp with a valid tax invoice quoting the Order number for the amount to be paid to the Supplier, GrainCorp will pay the Supplier in accordance with the due date for payment of progress claims under the relevant Security for Payment Legislation in force and applicable to the Works being carried out, or where the relevant Security for Payment Legislation does not prescribe statutory due dates for payment, 30 days from the end of the month in which the Supplier’s payment claim was received unless specified otherwise on the Order. Payments made by GrainCorp are payments on account only. In consideration of GrainCorp making the final payment to the Supplier the Supplier releases GrainCorp from all claims and actions and agree that the Supplier has No Claim arising out of or in connection with the Order or the Works.
In this clause, “Security for Payment Legislation” refers to each of the legislation in force at the date of each Order is entered into:
(c) the Building and Construction Industry Security of Payment Act 1999 (NSW);
(d) the Building Industry Fairness (Security of Payment) Act 2017 (Qld);
(e) the Building and Construction Industry Security of Payment Act 2002 (Vic);
(f) the Construction Contracts Act 2004 (WA);
(g) the Building and Construction Industry (Security of Payment) Act 2021 (WA).
Without limiting any other right or remedy of GrainCorp, the Supplier indemnifies GrainCorp and its related bodies corporate, their respective officers, employees and agents (GNC) against any loss, damage, claim, action, expense, fine, penalty (including, without limitation, legal expenses) which GNC suffers or incurs arising out of or in connection with any of the following:
(a) a breach of this Order by the Supplier or its Associates;
(b) any death or injury to a person, or any loss or damage to GrainCorp real or personal property or that of a third party caused by the negligent act or omission of the Supplier or its Associates; and
(c) any negligent act or omission of the Supplier or its Associates.
It is not necessary for GNC to incur or suffer the loss, damage, claim, action, expense, fine, penalty or make payment before enforcing a right of indemnity under this Order and GrainCorp holds the benefit of the indemnity on trust for each other GNC party.
The Supplier remains fully liable for the Works notwithstanding:
(d) that the Supplier subcontracts any part of the Works;
(e) GrainCorp reviews, approves of or comments on the Works or any documents (or fails to review, approve of comment on the Works or any documents); or
(f) any insurances effected by the Supplier.
17. NOTIFICATION OF CLAIMS
The Supplier must give written notice to GrainCorp within 5 days after any right to make any claim against GrainCorp arises in connection with the Order or the Works. The written notice under this clause must include an outline of the basis of the claim and the quantum of the claim.
If the Supplier does not make the claim strictly in accordance with the time prescribed for that type of claim or if no time is prescribed within 10 Business Days of when a competent and experienced Supplier ought reasonably have become aware of the circumstances giving rise to the claim, the Supplier will have No Claim in relation to the subject matter of the claim.
GrainCorp may terminate the Order by written notice:
(a) if the Supplier is in breach of the Order;
(b) if the Supplier indicates or events indicate in any way that the Supplier is financially incapable of Completing the Works in accordance with the Order or paying the Supplier debts when they are due; or
(c) at any time in GrainCorp’s absolute discretion for any reason (whether or not the Supplier has breached the Order),
(d) in the case of termination under (a) or (b), GrainCorp may recover from the Supplier any loss or damage GrainCorp suffers as a result of the termination including in having another party Complete the Works; or
(e) in the case of termination under (c), GrainCorp will pay the Supplier for those parts of the Works completed at the date of the notice but not any amount for Works the Supplier has not carried out at the time of termination,
and the Supplier otherwise has No Claim as a result of the termination and GrainCorp may then complete the Works itself or by others.
Either party may give a notice in writing to the other giving formal notice and details of a dispute between the parties (Notice of Dispute).
Senior representatives of the parties having authority to settle the dispute must meet to attempt to resolve the dispute within 14 days of service of the Notice of Dispute. If the senior representatives cannot do so, either party may commence court proceedings in respect of the dispute.
Nothing in this clause prevents a party from commencing proceedings to enforce payment due under this Order or seek injunctive or urgent declaratory relief. The parties must continue to perform their obligations under this Order despite the existence of a dispute.
The Supplier agree that information or documents of any nature made available to the Supplier by or on GrainCorp’s behalf:
(a) do not constitute a warranty or representation of any kind by GrainCorp; and
(b) have been checked and verified by the Supplier for correctness and completeness and the Supplier is satisfied that they are complete and sufficient for the Supplier to carry out the Works in accordance with the Order.
The Supplier has No Claim on account of any alleged statement, warranty, representation, information or documents made or provided to the Supplier by or on behalf of GrainCorp.
21. SHARED RESPONSIBILITY
GrainCorp and the Supplier have a shared responsibility to comply with the Heavy Vehicle National Law and Chain of Responsibility with which the Supplier acknowledges it is fully aware, is and will remain compliant.
Nothing in these Purchase Terms or any instruction given pursuant to an Order should be understood or construed as directing or requiring that the Supplier breach its obligations under the Heavy Vehicle National Law and Chain of Responsibility.
If the Supplier believes that compliance with the Order or any instruction given pursuant to the Order will or may result in a breach of the Heavy Vehicle National Law and Chain of Responsibility, the Supplier should immediately advise GrainCorp.
If compliance with an Order or any instruction would result in a breach of the Heavy Vehicle National Law and Chain of Responsibility, noncompliance will not be construed as a breach of an Order or these Purchase Terms.
22. INTELLECTUAL PROPERTY
All Intellectual Property Rights owned by GrainCorp remain and will remain the property of GrainCorp. All Intellectual Property Rights in, and relating to, the Works will be GrainCorp’s property. The Supplier warrants that any documents, design or method of working provided by it will not infringe any Intellectual Property Rights of any third party.
The Supplier must treat as confidential, all information which GrainCorp provides to the Supplier or which otherwise originates from GrainCorp which is of a confidential nature (including the Order and all of GrainCorp’s Intellectual Property Rights, Scope Documents, strategies, projects, plans and financial information) and must not, without the prior written consent of GrainCorp, disclose, use or copy (or cause or allow to be disclosed, used or copied) any of that information other than for the performance of its obligations under the Order. The obligations set out in this clause 23 survive termination or expiration of the Order.
The Supplier must comply with all of GrainCorp’s policies and guidelines as may be referenced in the Order or as notified to the Supplier from time to time including, but not limited to, GrainCorp’s anti-bribery and corruption policy and relevant work health and safety procedures at the Site and any relevant Chain of Responsibility policy.
The Supplier is an independent Supplier of GrainCorp and nothing in the Order constitutes any partnership or other fiduciary type of relationship between the parties.
Without prejudice to other rights and remedies, GrainCorp may deduct from any amount which may be or become payable to the Supplier under the Order any other amount due from the Supplier to GrainCorp.
The non-exercise of or delay in exercising any power or right of GrainCorp does not operate as a waiver of that power or right. A power or right of GrainCorp may only be waived in writing, signed by GrainCorp.
Any provision of these Purchase Terms which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make the contract formed by these Purchase Terms and the Order enforceable, unless this would materially change the intended effect of the Order.
The Order is governed by and construed in accordance with the Laws applying from time to time in the Relevant Jurisdiction and the Supplier hereby submits to the jurisdiction of the courts of the Relevant Jurisdiction.
Neither the Purchase Terms nor the Order can be varied except by writing signed by both parties.
The Order nor any provision of the Purchase Terms may be construed to the disadvantage of a party merely because that party was responsible for its preparation or inclusion.
All indemnities, warranties and obligations of confidentiality are continuing in favour of GrainCorp despite any final payment or Completion or the termination of this Order. All express warranties are additional to any warranties or conditions implied by statute or common law.
GrainCorp’s rights, powers and remedies provided in the Purchase Terms and Order are in addition to those provided by law independently of the Purchase Terms and Order and each right, power and remedy (including any right of indemnity) is additional to and not exclusive of every other right, power or remedy provided in the Order.