In this agreement:
Anti-slavery Laws means all Laws relating to exploitation of a worker, human trafficking, slavery, slavery-like behaviour, servitude, forced labour, child labour, debt bondage or deceptive recruiting for labour or services (or similar) in force from time to time.
Associate means, in respect of a party, an officer, director, employee, agent, contractor, consultant, invitee or supplier of that party (other than the other party).
Authority means any governmental or semi-governmental or local government authority, administrative or judicial body or tribunal, department, commission, public authority, agency, Minister, statutory corporation or instrumentality and any private electricity, telecommunications, gas or other utility company having statutory rights in relation to the Deliverables.
Building Code of Practice means, if the Deliverables are in relation to building work which has received or will receive any direct or indirect funding from the government, the relevant code which applies to that building work.
Business Day means a day on which banks are open for business in the State or Territory in which the Deliverables are delivered or performed, excluding a Saturday, Sunday or public holiday in the capital city of that State or Territory.
Commencement Date means the date the purchase order is issued by the Contractor to the Supplier.
Commercial Arbitration Legislation means the Law relating to arbitration in the State or Territory in which the Deliverables are delivered or performed.
Confidential Information means:
(a) the terms of this agreement; and
(b) all information, know-how, ideas, concepts, technology, industrial, marketing and commercial knowledge of a confidential nature (whether in tangible or intangible form) relating to or developed in connection with or in support of the business of a party or a Related Body Corporate of a party which is disclosed, communicated or delivered to, learnt by, or which otherwise comes to the knowledge of or into the possession of the other party under or in connection with this agreement,
but does not include:
(c) information which is or becomes generally available in the public domain (other than through any breach of confidence);
(d) information rightfully received by the other party from a third person who is under no obligation of confidentiality in relation to the information and who has not obtained that information either directly or indirectly as a result of a breach of any duty of confidence owed to the first party; or
(e) information which has been independently developed by the other party.
Consequential Loss means any loss of revenue, loss of income, loss of business, loss of profits, loss of production, loss of or damage to goodwill or credit, loss of business reputation, future reputation or publicity, loss of use, loss of interest, losses arising from claims by third parties, loss of or damage to credit rating, loss of anticipated savings, loss or denial of opportunity or any other loss, damage, cost or expense incurred by a party or any other person that is indirect or consequential.
Contaminant means a solid, liquid, gas, odour, heat, sound, vibration, radiation or substance which makes or may make the Site or the surrounding Environment:
(a) unsafe or unfit for habitation or occupation by persons or animals;
(b) not comply with any Law relating to the Environment; or
(c) not satisfy the contamination criteria or standards published or adopted by a relevant Authority.
Contractor means the party who is purchasing the Deliverables under this agreement.
Corporations Act means the Corporations Act 2001 (Cth).
Defective Deliverables includes:
(a) any Deliverables which are not in conformity with this agreement;
(b) any Services which are required to be performed pursuant to this agreement which have not been performed;
(c) any Goods which are required to be supplied pursuant to this agreement which have not been supplied; and
(d) any failure to deliver or perform the Deliverables in accordance with this agreement.
Deliverables means the services and/or goods described in the purchase order (or any annexure or attachment to the purchase order).
Environment means the physical factors of the surroundings of human beings including the land, waters, atmosphere, climate, sound, odours, tastes, the biological factors of animals and plants, and the social factor of aesthetics.
Goods means any goods, materials, plant, equipment, items or documents provided or to be provided by the Supplier as part of the Deliverables.
Governing Law State means Western Australia.
GST, GST Law and other terms used in clause 9 have the meaning used in the A New Tax System (Goods and Subcontract Works Tax) Act 1999 (Cth), except that ‘GST Law’ includes any applicable rulings issued by the Commissioner of Taxation.
HSEQ Requirements means the Contractor’s Health, Safety, Environment and Quality requirements as advised to the Supplier from time to time.
Insolvency Event means the occurrence of any of the following events:
(a) where a party is a natural person, the person becomes bankrupt, files or is served with a petition in bankruptcy or is served with a bankruptcy notice, the person is unable to pay his/her debts as and when they become due and payable or a creditor’s meeting in relation to the person is called;
(b) an application is made to a court for an order or an order is made that a body corporate be wound up, and the application is not withdrawn, stayed or dismissed within 21 days of being made;
(c) appointment of a liquidator, provisional liquidator, administrator, receiver, receiver and manager or controller in respect of a body corporate or its assets;
(d) except to reconstruct or amalgamate while solvent, a body corporate enters into, or resolves to enter into, a scheme of arrangement, deed of company arrangement or composition with, or assignment for the benefit of, all or any class of its creditors, or it proposes a reorganisation, moratorium or other administration involving any of them;
(e) a body corporate resolves to wind itself up, or otherwise dissolve itself, or gives notice of intention to do so, except to reconstruct or amalgamate while solvent or is otherwise wound up or dissolved;
(f) a body corporate is or states that it is insolvent as that term is defined in section 95A of the Corporations Act;
(g) as a result of the operation of section 459F(1) of the Corporations Act, a body corporate is taken to have failed to comply with a statutory demand;
(h) a body corporate is or makes a statement from which it may be reasonably deduced that the body corporate is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act;
(i) a body corporate takes any step to obtain protection or is granted protection from its creditors, under any applicable law;
(j) a body corporate ceases to carry on business; or
(k) anything analogous or having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction.
Intellectual Property Rights means any and all intellectual and industrial property rights anywhere in the world (including present and future intellectual property rights) including (but not limited to) rights in respect of or in connection with:
(a) any related confidential information (including but not limited to the Confidential Information), trade secrets, know-how or any right to have information kept confidential;
(b) copyright (including moral rights, future copyright and rights in the nature of or analogous to copyright) throughout the world in all literary works, artistic works, computer software and any other works or subject matter in which copyright subsists and may in the future subsist;
(c) inventions, discoveries and novel designs, whether or not registered or registrable as patents or designs, including developments or improvements of equipment, products, technology, processes, methods or techniques;
(d) trade and service marks (whether registered or unregistered), business names, trade names, domain names, logos and get-up; and
(e) proprietary rights under the Circuit Layouts Act 1989 (Cth),
whether or not existing at the date of this agreement and whether or not registered or registrable and includes any and all variations, modifications or enhancements to each of them together with any application or right to apply for registration of those rights and includes all renewals and extensions.
(a) legislation, ordinances, regulations, by-laws, orders, awards, proclamations, directions and codes of practice or conduct of the Commonwealth, a State or Territory or any Authority;
(b) certificates, licences, consents, permits, approvals, qualifications, registrations, standards or requirements (including the payment of fees and charges) of organisations having jurisdiction in connection with the supply of the Deliverables under this agreement; and
(c) all other laws from which legal rights and obligations may arise.
Loss means any loss, cost, damage, expense (including lawyer’s fees and expenses on a full indemnity basis), claim, demand or liability.
Moral Right means the right of integrity of authorship (that is, not to have a work subjected to derogatory treatment), the right of attribution of authorship of a work, and the right not to have authorship of a work falsely attributed, which rights are created by the Copyright Act 1968 (Cth), and if any work is used in any jurisdiction other than in Australia, any similar right capable of protection under the laws of that jurisdiction.
Personal Property means property that is personal property (as defined in the PPSA) and to which the PPSA applies.
(a) any policies or procedures adopted by the Contractor or the owner or controller of the Site from time to time, copies of which will be provided to the Supplier by the Contractor on request; and
(b) any other policies or procedures as notified by the Contractor to the Supplier from time to time.
PPS Law means:
(a) the PPSA and any regulations made under the PPSA as amended from time to time; and
(b) any amendment made to any other Law as a consequence of the PPSA or any regulations made under the PPSA including amendments to the Corporations Act.
PPSA means the Personal Property Securities Act 2009 (Cth).
Price means the price for the Deliverables payable by the Contractor to the Supplier as set out in the purchase order, or as calculated for actual quantities supplied using the rates on the purchase order.
Proportionate Liability Law means the Law which provides (whether on a voluntary or mandatory basis) for the apportionment of liability for a legal wrong between different persons, including concurrent wrongdoers, in the State or Territory in which the Deliverables are delivered or performed.
Related Body Corporate has the meaning given to it in section 9 of the Corporations Act.
Security Interest means:
(a) in relation to any Personal Property, has the same meaning as in the PPSA; and
(b) in relation to property other than Personal Property, means any security or the payment of money or performance of obligations including any security or preferential interest or arrangement of any kind, or any other right of or arrangement with any creditor to have its claims satisfied prior to other creditors with, or from proceeds of sale of, any asset including, without limitation, retention of title other than in the ordinary course of business and any deposit of money by way of security.
Services means any services provided or to be provided by the Supplier as part of the Deliverables.
Site means any land, place or site at which the Deliverables are to be delivered or performed.
SOP Legislation means the Law which regulate the resolution of payment disputes under a construction contract, in the State or Territory in which the Deliverables are delivered or.
Specifications means the specifications, drawings and any other documents (if any) annexed or attached to, or incorporated by reference in, the purchase order.
Supplier means the party who is supplying the Deliverables under this agreement.
Supplier Equipment has the meaning given in clause 24(a).
Term means the term of this agreement commencing on the Commencement Date and expiring upon the completion of the Supplier’s obligations under this agreement.
WH&S Legislation means the Law relating to workplace health and safety in the State or Territory in which the Deliverables are delivered or performed.
In this agreement:
(a) headings and italicised, highlighted or bold type do not affect the interpretation of this agreement;
(b) the singular includes the plural and the plural includes the singular and a gender includes all other genders;
(c) other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning;
(d) a reference to a ‘person’ includes any individual, firm, company, partnership, joint venture, an unincorporated body or association, trust, corporation or other body corporate and any Authority (whether or not having a separate legal identity);
(e) a reference to a clause, party, annexure, exhibit or schedule is a reference to a clause of, and a party, annexure, exhibit and schedule to, this agreement and a reference to this agreement includes any clause, annexure, exhibit and schedule;
(f) a reference to a document (including this agreement) includes all amendments or supplements to, or replacements or novations of, that document;
(g) a reference to a party to any document includes that party’s successors and permitted assigns;
(h) a reference to time is to time in the State or Territory in which the Deliverables are delivered or performed;
(i) a reference to any legislation or Building Code of Practice includes all delegated legislation made under it and includes all amendments, consolidations, replacements or re‑enactments of any of them, from time to time;
(j) a promise, agreement, representation or warranty by two or more persons binds them jointly and severally;
(k) the Supplier’s obligations to rectify any Defective Deliverables are paramount and are not affected, relieved or diminished by any limitation or exclusion of liability or Loss;
(l) a provision of this agreement may not be construed adversely against a party solely on the ground that the party (or that party’s Associate) was responsible for the preparation of this agreement or the preparation or proposal of that provision;
(m) a reference to a body, other than a party to this agreement (including an institute, association or authority), whether statutory or not, which ceases to exist or whose powers or functions are transferred to another body, is a reference to the body which replaces it or which substantially succeeds to its powers or functions;
(n) the words ‘include’, ‘including’, ‘for example’, ‘such as’ or any form of those words or similar expressions in this agreement do not limit what else is included and must be construed as if they are followed by the words ‘without limitation’, unless there is express wording to the contrary;
(o) a reference to a day is to the period of time commencing at midnight and ending 24 hours later;
(p) if a period of time is specified and dates from a day or the day of an act, event or circumstance, that period is to be determined exclusive of that day;
(q) if an act or event must occur or be performed on or by a specified day and occurs or is performed after 5.00 pm on that day, it is taken to have occurred or been done on the next day; and
(r) a reference to ‘$’, ‘A$’, ‘dollars’ or ‘Dollars’ is a reference to the lawful currency of the Commonwealth of Australia.