Terms & Conditions
These Standard Conditions apply to all suppliers of Goods and/or Services by the Contractor to any entity within the Hickinbotham Group of Companies (Hickinbotham) unless specifically excluded or varied by Hickinbotham in writing. These Standard Conditions operate to the exclusion of all other terms and conditions proposed or notified by the Contractor, irrespective of whether the Contractor terms and conditions were proposed or notified prior to or after the relevant Goods and/or Services were supplied.
1. Authority and acceptance: Hickinbotham will not be bound by any Order unless it is issued by or on behalf of Hickinbotham. The supply of the Goods and/or Services by the Contractor constitutes acceptance by the Contractor of the Order and these Standard Conditions. If the Contractor supplies Goods and/or Services to Hickinbotham, it is agreeing to do so in accordance with and subject to the Order and these Standard Conditions.
2. Supply of Goods and Services: The Contractor must ensure that:
2.1 all Goods are new, of merchantable quality, made of good materials and workmanship, and are free from defects;
2.2 all Goods are fit for the purpose, compliant with industry standards for which goods of the same kind are commonly supplied and any purpose which Hickinbotham makes known to the Contractor, and are accompanied by any necessary instructions, technical documents, operating and service manuals and applicable warranties;
2.3 Services are performed in a timely manner with all necessary skill, care and diligence to the reasonable satisfaction of Hickinbotham;
2.4 obligations are performed in accordance with this Agreement, the scope of the Order, all applicable laws, rules, regulations, approved Codes of Practice, and all relevant policies and procedures of Hickinbotham brought to the Contractor attention from time to time, including but not limited to safety, health and environment policies and any site specific policies and procedures (including completing and filing a Job Safety Analysis or similar for work the subject of each Order);
2.5 all necessary permits and approvals are obtained to undertake all duties and obligations under this Agreement;
2.6 all necessary equipment is provided, including personal protective equipment that is fit for and appropriate to the work performed by the Contractor, materials and labour that may be required to supply the Goods and/or Services;
2.7 the Goods are delivered in the quantity, at the time and to the site or delivery point specified by Hickinbotham in the Order or in accordance with any delivery instructions notified by Hickinbotham. The Contractor must take steps to ensure that the Goods are protected against all damage and deterioration during transportation;
3. Subject to clause 6 of these Standard Conditions, title to and risk in the Goods passes to Hickinbotham when Hickinbotham has taken delivery of the Goods at the site or delivery point specified or notified by Hickinbotham.
4. The Contractor's Personnel: The Contractor must ensure that:
4.1 its personnel engaged in the supply of the Goods and/or Services are trained, instructed, appropriately supervised and competent for the work to be performed by the Contractor and that all work is performed professionally, with appropriate qualifications, care, skill and diligence;
4.2 It complies with any request by Hickinbotham to remove or restrict a member of the Contractor's personnel from site (without Hickinbotham having to provide a reason for that request);
4.3 it is registered as an employer under the Workers Rehabilitation and Compensation Act 1986 ('Act') if required by that law, with any failure to hold or maintain that registration giving Hickinbotham the right to immediately terminate the contact for the supply of goods and/or services;
4.4 If the Contractor does not employ persons to work for it, and operates its business as a sole trader, then the Contractor must supply materials for the work it is contracted to undertake for Hickinbotham that exceeds 4% of the total amount payable by Hickinbotham under the contract.
4.5 For the purposes of all Work Health and Safety Laws (and the regulations), the Contractor agrees that it is in the position to be able to influence and direct the performance of the work that it is contracted to perform, and is required to meet its duty as the Primary Duty Holder under the legislation, in respect of its workers, those workers it causes to be engaged in the provision of the Goods and/or Services and those workers whose activities in carrying out the Contractor work are influenced or directed by the Contractor (or its personnel).
4.6 The officers of the Contractor meet their own work health safety obligations as concerns due diligence as required which includes knowledge of health and safety matters in the Contractor industry or occupation, and an understanding of the particular hazards and risks in the Contractor operation;
4.7 The Contactor provides such supervision as is necessary to meet its primary duty of care, having regard to the training and expertise of its workers.
5. Reporting: The Contractor must keep accurate records relating to the provision of the Goods and/or Services and it must make such records available for inspection by Hickinbotham upon the reasonable request of Hickinbotham.
6. Inspection and acceptance of Goods: Hickinbotham will not be deemed to have accepted the Goods until it has had a reasonable time to inspect the Goods. If, on inspection, Hickinbotham finds that any Goods are unsafe or defective in design, performance or workmanship or because they do not meet Hickinbotham specifications, Hickinbotham may reject those Goods by returning them to the Contractor at the Contractor's cost. At Hickinbotham's option and request, the Contractor must refund to Hickinbotham any payments made by Hickinbotham in respect of any unsafe or defective Goods that Hickinbotham rejects, or replace free of charge any defective Goods that Hickinbotham rejects.
7. Invoicing and Payment: Hickinbotham will pay the Contractor for the supply of the Goods and/or Services within 30 days of the end of the month in which Hickinbotham receives a tax invoice for the Goods and/or Services, subject to the satisfactory performance of the Contractor's obligations under the Order and these Standard Conditions and acceptance of the Goods and/or Services by Hickinbotham. The Contractor must not invoice Goods and/or Services until they have been supplied to Hickinbotham. The price payable for the Goods and/or Services will be the price notified by Hickinbotham and includes all costs, taxes and duties (including GST) and expenses incurred by the Contractor in complying with all its obligations under these Standard Conditions. The price will not vary except with the prior approval of Hickinbotham. Acceptance of Goods and/or Services by Hickinbotham after the Contractor has notified a proposed price variation is not of itself acceptance or approval by Hickinbotham of the price variation. Where the work comprising the Services that is the subject of a particular tax invoice issued to Hickinbotham has been performed solely by a single natural person, then that tax invoice must include a written declaration by the Contractor to that effect. Where two or more persons have been involved in performing the work on behalf of the Contractor (including, where the Contractor is a sole trader, the Contractor and at least one other person), then no such declaration is required.
8. Sub-contracting: The Contractor must not sub-contract any part of the supply of Goods and/or Services without Hickinbotham written consent, and on the express condition that the subcontracted party accepts these Standard Conditions as if it were the original contracting party to Hickinbotham.
9. Confidentiality: The Contractor must not, and must ensure that its employees, agents and sub-contractors do not, without the prior written approval of Hickinbotham, at any time use, disclose or give to any person any Confidential Information (defined below). This clause does not apply to Confidential Information that the Contractor proves is in the public domain other than as a result of a breach of this clause or is required to be disclosed by any applicable law or the listing rules of any applicable stock exchange.
10. Intellectual Property: The Contractor assigns to Hickinbotham all Intellectual Property Rights that may be created in the course of or in connection with the provision of the Services, effective immediately on the creation of any such Intellectual Property Rights. The Contractor must do all things necessary to ensure that Hickinbotham obtains and protects all Intellectual Property Rights referred to in this clause including, where necessary, obtaining an assignment of rights (including moral rights) from any personnel of the Contractor. The Contractor agrees that in the course of or in connection with providing the Services, it will not do any act or thing which may infringe any Intellectual Property Rights of Hickinbotham or any third party.
11. Insurance: The Contractor must, before commencing supply of the Goods and/or Services, effect and maintain all insurances which would ordinarily be maintained by a prudent supplier of the Goods and/or Services and must note thereon the interest of Hickinbotham.
12. Indemnity: Without limiting Hickinbotham other rights and remedies, the Contractor indemnifies and will keep indemnified Hickinbotham, its agents, sub-contractors and Related Bodies Corporate and any employees of any of them from and against any loss, damage, expense (including lawyer's fees and expenses on an indemnity basis) claim, demand or liability made or incurred as a result of or in connection with:
12.1 the negligent act or omission, or wilful act or omission of the Contractor or its employees, agents or sub-contractors;
12.2 personal injury, death or property loss or damage suffered by any person arising out of or in connection with the Goods or Services provided by the Contractor; and
12.3 any infringement or alleged infringement of Intellectual Property Rights arising out of Hickinbotham use of the Goods and/or Services.
13. Contractor acknowledgement: The Contractor acknowledges and agrees that:
13.1 Hickinbotham does not prepare general purpose financial reports;
13.2 the Contractor does not require any financial reports (including general purpose financial reports) or other financial information of Hickinbotham for any purpose; and
13.2 the Contractor does not rely on any financial reports or other financial information of Hickinbotham for any purpose.
14. Termination: Hickinbotham may terminate an Order at any time by written notice to the Contractor of 14 days. Upon such termination, the Contractor will no longer be required to supply, and Hickinbotham will no longer be required to receive and pay for, the Goods and/or Services the subject of the Order.
15. Notices: Any notice, approval, consent or other communication must be in writing and sent by pre-paid post, facsimile or email to the address, facsimile number or email address notified in writing by the party to whom the notice is addressed.
16.1 Set off: Hickinbotham may deduct from any amounts due to the Contractor any amounts due from the Contractor to Hickinbotham.
16.2 Governing law: The governing law of these Standard Conditions is the law of South Australia and the parties submit to the exclusive jurisdiction of the Courts of South Australia.
16.3 Variation: A variation of any term of these Standard Conditions must be in writing and signed by the parties.
16.4 Severance: Any provision of, or the application of any provision of these Standard Conditions which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
16.5 Entire agreement: These Standard Conditions and the Order constitute the entire agreement between the parties for the Goods and/or Services and supersedes all previous agreements, proposals, representations, correspondence and discussions in connection with the Goods and/or Services.
17. Definitions and Interpretation: In these Standard Conditions
17.1 Confidential Information means whether or not in material form, all information relating to the business dealings, contracts, customers, suppliers, computer operations, house designs and marketing, sales and business plans and financial data of Hickinbotham and any Related Body Corporate of Hickinbotham;
17.2 Contractor means the person or business from whom Hickinbotham has requested the supply of Goods and/or specialist expertise in the provision of Services the subject of the Order;
17.3 Goods means the goods to be provided by the Contractor to Hickinbotham as described in the Order;
17.4 Hickinbotham Group of Companies means Construction Services Australia Pty Ltd (ACN 007 641 787) and its Related Bodies Corporate;
17.5 Intellectual Property Rights means: patents, trade marks, service marks, rights in designs, trade names and copyright (including future copyright), in each case whether registered or not, and any applications for registration of any of them; rights under licences and consents in relation to any of them; and all forms of protection of a similar nature or having equivalent or similar effect to any of them which may subsist anywhere in the world;
17.6 Order means any request for Goods and/or Services (whether in electronic, written or other form) issued by Hickinbotham to the Contractor;
17.7 Related Body Corporate has the meaning given by the Corporations Act 2001 (Cth);
17.8 Services means the services to be performed by the Contractor, as set out in the Order, and any services necessarily incidental to them;
17.9 Standard Conditions means the conditions set out in this document, as amended from time to time; and
17.10 If there is any inconsistency between these Standard Conditions and an Order, the conditions in the Order will prevail to the extent of the inconsistency.