Terms & Conditions – Purchasing

SUPPLY, INSTALLATION AND SITE SERVICES

Subcontract Terms

Kinder Australia Pty Ltd

Purpose

These Terms set out the basis on which Kinder Australia Pty Ltd (Kinder) engages suppliers and subcontractors to supply goods, materials, equipment or spare parts, and/or to perform installation or other site services, for Kinder’s customers. They set out the quality, safety, insurance and delivery expectations that apply to all Goods and Services supplied to Kinder, so that Kinder and its subcontractors can work together effectively on every job.

  1. Application and Acceptance

These Supply, Installation & Site Services Subcontract Terms (Terms) apply whenever Kinder Australia Pty Ltd (Kinder) engages a supplier or subcontractor (Subcontractor) to:

  • supply goods, materials, equipment, spare parts or components (Goods); and/or
  • perform installation, maintenance, commissioning, inspection, modification, repair or other services (Services),

in each case as specified in a Purchase Order issued by Kinder. Goods and Services are together referred to as the Supply.

These Terms form part of each Purchase Order issued by Kinder for Goods and/or Services. The Subcontractor is taken to accept them when it acknowledges the Purchase Order, supplies any part of the Goods, commences any part of the Services, mobilises personnel or equipment to site, or submits an invoice relating to the Purchase Order.

1.1 Order of precedence

If there is any inconsistency, the following order of precedence applies unless Kinder expressly agrees otherwise in writing:

  • any project-specific requirements expressly stated in the Purchase Order or Project-Specific Schedule;
  • customer requirements expressly identified by Kinder as applying to the Supply;
  • these Terms;
  • Kinder Standard Purchase Terms and Conditions; and
  • the Subcontractor’s quotation or other document.

Any terms issued by the Subcontractor are excluded unless expressly accepted in writing by an authorised representative of Kinder.

  1. Customer and Head Contract Flow-Down

Where Kinder is supplying goods or services to a customer in connection with the Supply, the Subcontractor must comply with all customer requirements, obligations, standards, procedures and conditions identified by Kinder to the extent they relate to the Goods, the Services, the Subcontractor, its personnel or its acts or omissions, including:

  • site access, conduct, inductions and security;
  • health, safety and environmental requirements;
  • quality, workmanship, testing and commissioning;
  • product specification, compliance and certification requirements;
  • insurance and evidence of insurance;
  • confidentiality and information handling;
  • warranties, defects and rectification;
  • reporting, programme and timing requirements; and
  • liability, back-charges or other consequences arising from the Subcontractor’s breach, act or omission.

Kinder may provide the Subcontractor with copies, extracts or summaries of applicable customer requirements. The Subcontractor must perform the Supply so that no act or omission of the Subcontractor causes Kinder to breach an obligation owed to its customer.

To the extent Kinder incurs a liability, cost, loss, back-charge, rectification cost or claim from its customer arising from the Subcontractor’s breach, act or omission, the Subcontractor is responsible for that amount to the extent caused or contributed to by the Subcontractor.

  1. Scope and Performance

3.1 Supply of Goods

Where the Purchase Order is for Goods, the Subcontractor must:

  • supply Goods that conform to the Purchase Order, approved drawings, specifications, manufacturer standards and applicable Australian Standards;
  • ensure the Goods are new, of merchantable quality and free from defects in material or workmanship, unless the Purchase Order expressly states otherwise;
  • appropriately package and label the Goods for safe transport, and not substitute Goods, materials or components without Kinder’s prior written approval;
  • deliver the Goods on or before the delivery date and to the delivery destination stated in the Purchase Order, accompanied by a delivery note or packing slip stating the date of issue, the Subcontractor’s details, the Goods delivered and the Purchase Order reference; and
  • include in the price all costs of packaging, delivery to the destination stated in the Purchase Order, and any applicable taxes, duties and fees, unless the Purchase Order states otherwise.

If the quantity of Goods delivered exceeds the quantity ordered, Kinder may return the excess at the Subcontractor’s cost, unless Kinder elects to retain the excess on terms agreed with the Subcontractor.

Kinder or its nominee may inspect the Goods before or after delivery. Where any Goods do not conform to the Purchase Order, Kinder may require correction or replacement, or reject and return the Goods at the Subcontractor’s cost. Rejected Goods are held at the Subcontractor’s risk and cost pending the Subcontractor’s instructions.

Risk in the Goods passes to Kinder on delivery in accordance with the Purchase Order. Title to the Goods passes to Kinder on the later of delivery or payment in full for those Goods, provided that risk passes on delivery regardless of when title passes.

3.2 Performance of Services

Where the Purchase Order is for Services, the Subcontractor must perform the Services professionally, safely, competently and in accordance with the Purchase Order, approved drawings and specifications, manufacturer instructions, applicable Australian Standards, applicable laws and all reasonable directions issued by Kinder, and must:

  • review the Purchase Order, drawings, specifications and site requirements before commencing;
  • immediately identify any ambiguity, inconsistency, missing information or site condition that may affect the Services;
  • not proceed with affected work until Kinder provides direction where clarification is required;
  • provide all labour, supervision, tools, equipment, PPE and consumables reasonably necessary unless the Purchase Order expressly states otherwise;
  • protect Kinder goods, customer property and the work area from loss or damage; and
  • keep the work area orderly and leave it clean and safe on completion.

3.3 No unauthorised design or technical changes

The Subcontractor must not alter any design, specification, equipment arrangement, installation detail or installation methodology where the change may affect product performance, safety or compliance, without Kinder’s prior written approval.

  1. Independent Contractor and Authority

The Subcontractor is an independent contractor and is responsible for the direction, supervision and control of its personnel. Nothing in the Purchase Order creates an employment, partnership, agency or joint venture relationship with Kinder.

  • The Subcontractor has no authority to bind Kinder or make commitments on Kinder’s behalf;
  • it must not agree scope changes, prices, credits, compensation or contractual variations with Kinder’s customer on Kinder’s behalf; and
  • commercial or contractual requests from the customer relating to Kinder must be referred to Kinder promptly.
  1. Insurance

Before mobilisation, delivery, or supply (as applicable) and throughout the period in which the Subcontractor may have liability arising from the Supply, the Subcontractor must maintain, at its own cost, the following insurance with reputable insurers reasonably acceptable to Kinder.

Coverage Minimum Requirement When Required
Public Liability AUD 20 million All Goods and/or Services
Product Liability AUD 10 million Where Goods are supplied
Workers Compensation Statutory All personnel as required by law
Employers Liability AUD 1 million Where applicable
Motor Vehicle Liability AUD 20 million Vehicles used in connection with the Supply
Contract Works As required by contract Where required by Kinder, the customer or project
Professional Indemnity AUD 5 million Where design, engineering, certification or professional advice is performed, or where required by the customer contract

Where available under the applicable policy, Kinder and the relevant customer must be noted as an interested party or additional insured in relation to the Supply. The Subcontractor must obtain any waiver of subrogation reasonably required by Kinder or the customer. Insurance maintained by the Subcontractor is to operate as primary insurance to any insurance maintained by Kinder to the extent permitted by the policy.

5.1 Evidence and ongoing compliance

  • Certificates of Currency must be provided before mobilisation, delivery or supply and on renewal;
  • Kinder may require confirmation directly from the Subcontractor’s broker;
  • policy details must correspond to the legal entity named on the Purchase Order;
  • coverage must remain current for the required period;
  • the Subcontractor must immediately notify Kinder of cancellation, non-renewal or material reduction in cover; and
  • Kinder may suspend mobilisation, delivery, supply, stop work or withhold payment while required insurance evidence remains outstanding.

No mobilisation or delivery without approval

The Subcontractor must not mobilise to site, or deliver Goods, until Kinder confirms that required insurance, competency, induction and safety documentation has been received and accepted.

  1. Work Health and Safety

To the extent the Subcontractor or its personnel attend a Kinder or customer site to deliver Goods or perform Services, the Subcontractor is solely responsible for managing and supervising its personnel and performing the Supply safely. It must comply with all WHS/OHS legislation applicable in the State or Territory, site-specific rules, customer procedures, Kinder requirements and all lawful directions relating to safety, including:

  • permits to work and access controls;
  • isolation and lock-out/tag-out requirements;
  • working at heights and confined space requirements;
  • plant, lifting and mobile equipment requirements;
  • SWMS, JSA or JHA requirements;
  • PPE, competency, licences and inductions; and
  • incident, hazard and emergency reporting requirements.

No work may commence on or adjacent to conveyor equipment unless all required isolation, lock-out/tag-out and permit requirements have been completed and verified.

  1. Personnel, Competency and Licensing

Where the Subcontractor’s personnel attend site, the Subcontractor warrants that every such person is appropriately trained, competent, supervised and legally entitled to perform the relevant work, and holds all required licences, permits, tickets, qualifications and site inductions. Evidence must be provided to Kinder on request.

  1. Subcontracting

The Subcontractor must not subcontract the supply of any Goods or any part of the Services without Kinder’s prior written approval. Approval does not relieve the Subcontractor of any responsibility. The Subcontractor remains fully responsible for every act and omission of its subcontractors and must ensure that each approved subcontractor complies with obligations equivalent to these Terms.

  1. Warranties, Workmanship and Defects

9.1 Goods warranties

Where the Subcontractor supplies Goods, the Subcontractor warrants that:

  • the Goods are of merchantable quality and free from any defect in material or workmanship;
  • the Goods comply with all specifications provided by Kinder;
  • the Goods are fit for the purpose for which goods of the same kind are commonly supplied, and for any other purpose made known to the Subcontractor;
  • where sold by sample, the Goods in bulk correspond with the sample in quality; where sold by description, the Goods correspond with the description;
  • the Goods are free from any lien, charge, encumbrance or security interest;
  • the Goods do not infringe any patent, trademark, trade name, copyright or other third party intellectual property right; and
  • the Goods carry the benefit of any applicable manufacturer’s warranty, which the Subcontractor will assign to Kinder or hold on trust for Kinder and Kinder’s customer.

9.2 Services warranties

Where the Subcontractor performs Services, the Subcontractor warrants that the Services will be performed with due care, skill and diligence, to a professional standard, in accordance with the Purchase Order and applicable requirements, and will be free from defects attributable to the Subcontractor, and that:

  • the Services are fit for the purpose communicated to the Subcontractor;
  • all materials supplied by the Subcontractor in performing the Services are new and suitable unless otherwise approved;
  • all applicable manufacturer installation instructions are followed; and
  • all statutory and industry requirements are satisfied.

These warranties apply in addition to, and do not limit, any condition or warranty implied by law, and survive delivery, inspection, acceptance, completion and payment.

9.3 Defects liability period

Unless a different period is stated in the Project-Specific Schedule, the defects liability period is 12 months from delivery (for Goods) or from completion or commissioning (for Services). If Kinder’s customer requires a longer period and that requirement is identified to the Subcontractor, the longer period applies to the relevant Goods or Services.

9.4 Rectification

If Kinder or the customer identifies defective, non-conforming, unsafe or incomplete Goods or Services, the Subcontractor must promptly repair, replace, re-perform or refund the price for the affected Goods or Services (as Kinder reasonably directs) at its own cost. If the Subcontractor fails to do so within the period reasonably required by Kinder, Kinder may arrange rectification, replacement or re-performance by another party and recover the reasonable cost from the Subcontractor.

  1. Intellectual Property

All specifications, drawings and other intellectual property furnished by Kinder to the Subcontractor, or developed by the Subcontractor for the purpose of a Purchase Order, are confidential, must not be disclosed to any third party without Kinder’s prior written consent, and remain the property of Kinder.

Any equipment or tooling paid for by Kinder for use in fulfilling a Purchase Order remains the property of Kinder, must be clearly marked as such, must be surrendered to Kinder on demand, and must not be used for any purpose other than fulfilling a Purchase Order without Kinder’s prior written consent.

The Subcontractor assigns to Kinder all intellectual property rights the Subcontractor may have in Goods manufactured using Kinder’s property or intellectual property. The Subcontractor must not, without Kinder’s prior written consent, advertise or publish that it has entered into, or is supplying Goods or Services under, a Purchase Order.

  1. Indemnity

The Subcontractor indemnifies Kinder, its officers, employees and agents against claims, losses, damages, liabilities, penalties and reasonable costs arising from or in connection with the matters below, except to the extent the relevant loss was caused or contributed to by Kinder’s negligent act or omission:

  • personal injury, illness or death;
  • loss of or damage to property;
  • defective, non-conforming, unsafe or incomplete Goods or Services;
  • breach of law or site requirements;
  • breach of these Terms or the Purchase Order;
  • infringement of third party intellectual property rights caused by Goods, materials, processes or methods supplied by the Subcontractor;
  • acts or omissions of the Subcontractor or its personnel; and
  • claims made against Kinder by its customer arising from the Subcontractor’s supply of Goods or performance of Services.
  1. Customer Back-Charges and Consequential Project Costs

Where Kinder’s customer validly imposes a back-charge, rectification cost, site cost or other charge on Kinder as a direct result of the Subcontractor’s breach, delay, defective or non-conforming Goods, defective work, or other act or omission, Kinder may recover that amount from the Subcontractor to the extent caused by the Subcontractor.

  1. Programme, Delivery and Delay

Where a delivery date, completion date, mobilisation date or programme requirement is stated in the Purchase Order or Project-Specific Schedule, time is of the essence. The Subcontractor must immediately notify Kinder of any matter likely to cause delay to delivery or performance and take reasonable steps to mitigate the delay.

  • No extension of time applies unless approved by Kinder in writing;
  • customer-caused or Kinder-caused delays must be notified promptly with supporting detail; and
  • the Subcontractor is responsible for reasonable delay costs or customer delay charges incurred by Kinder to the extent directly caused by the Subcontractor’s breach or failure to deliver Goods or perform Services in accordance with the agreed programme.
  1. Variations

No variation, additional Goods, additional work or additional cost is payable unless approved in writing by an authorised Kinder representative before the Goods are supplied or the work is undertaken, except where immediate action is reasonably necessary to prevent imminent injury or property damage. Instructions from the customer do not constitute approval by Kinder.

  1. Incidents, Claims and Notifications

The Subcontractor must immediately notify Kinder of any injury, near miss, property damage, environmental incident, equipment damage, product safety concern or recall, regulatory intervention, customer complaint, potential insurance claim or circumstance reasonably likely to result in a claim against Kinder. A written incident report must be provided within 24 hours unless Kinder agrees otherwise.

  1. Customer Communications and Admissions

The Subcontractor must not admit liability, agree compensation, agree a rectification scope, make contractual representations, settle a customer complaint or otherwise compromise Kinder’s position without Kinder’s prior written approval.

  1. Inspection and Stop-Supply / Stop-Work Rights

Kinder and, where applicable, the customer may inspect the Goods, the Services, relevant records and safety documentation. Kinder may direct the Subcontractor to stop supply or stop work where there is a safety concern, non-conformance, non-compliance, expired insurance, missing licence, defective Goods or work, or material breach.

  • Inspection or approval does not relieve the Subcontractor of responsibility for proper supply or performance;
  • Kinder may require removal of unsuitable personnel from site, or return or replacement of non-conforming Goods; and
  • where a stop-work or stop-supply direction results from the Subcontractor’s breach, the Subcontractor bears its resulting costs.
  1. Completion and Delivery Documentation

Unless otherwise stated, the Goods or Services are not considered complete for payment purposes until all documentation reasonably required by Kinder or the customer has been submitted, which may include:

  • delivery notes or packing slips, and certificates of conformance or compliance;
  • signed service or completion reports;
  • commissioning and testing records;
  • photographs reasonably required as delivery or installation evidence;
  • closed permits and site documentation;
  • incident reports;
  • red-lined drawings or as-built information where applicable;
  • other certificates and compliance records; and
  • customer or site sign-off where required.
  1. Payment, Withholding and Set-Off

Payment terms are as stated in the Purchase Order. Kinder may withhold or set off from amounts otherwise payable any bona fide amount due from the Subcontractor arising from the relevant Purchase Order, including reasonable rectification, replacement or re-performance costs and customer back-charges attributable to the Subcontractor. Exercise of a withholding or set-off right does not limit Kinder’s other rights.

  1. Suspension and Termination

Kinder may suspend the Purchase Order immediately where there is a safety issue, insurance lapse, missing licence, customer direction, defective or non-conforming Goods, defective work, or serious non-compliance. Kinder may terminate the Purchase Order immediately for serious WHS breach, loss of required insurance, fraud or dishonesty, insolvency, unauthorised subcontracting, repeated defective or non-conforming Goods or work, a product recall attributable to the Subcontractor, failure to maintain required licences, or other material breach that is not remedied within a reasonable period after notice.

  1. Confidentiality, Photography and Publicity

The Subcontractor must keep confidential all non-public information concerning Kinder, the customer, site operations, drawings, equipment, pricing and project arrangements, and may use that information only to perform the Purchase Order.

  • No customer site photographs or videos may be published or used for marketing without approval;
  • photographs taken for work or delivery records must be handled securely;
  • customer and Kinder information must not be disclosed to third parties except as necessary to fulfil the Purchase Order; and
  • information must be returned or deleted when reasonably requested by Kinder.
  1. Non-Solicitation of Project Work

During the project, the Subcontractor must not knowingly solicit installation, supply or other work directly from Kinder’s customer arising from the relevant project without Kinder’s prior written consent. This clause is intended to apply only to project-specific opportunities introduced through Kinder and does not prevent the Subcontractor from conducting its ordinary business with an existing customer relationship unrelated to the project.

  1. Records and Audit

The Subcontractor must retain relevant records, including time sheets, personnel competencies, licences, SWMS, insurance evidence, delivery notes, certificates of conformance, service reports, testing records and incident records, for at least 7 years after completion unless a longer period is required by law or the customer contract. Relevant records must be made available to Kinder where reasonably required for a customer claim, insurance matter, product safety investigation, safety investigation or audit.

  1. Survival

Clauses concerning insurance to the extent applicable to completed operations or products, warranties, defects, indemnities, confidentiality, intellectual property, records, payment adjustments and accrued rights survive completion or termination of the Purchase Order.

  1. General

No waiver is effective unless in writing. If any provision is unenforceable, it is severed to the minimum extent necessary without affecting the remaining provisions. These Terms may only be varied by written agreement of an authorised representative of Kinder. The governing law and jurisdiction are those applying under Kinder’s Standard Purchase Terms and Conditions unless the Purchase Order expressly states otherwise.

 

RECOMMENDED PURCHASE ORDER NOTICE
GOODS / INSTALLATION / SITE SERVICES
This Purchase Order is subject to Kinder Australia Pty Ltd Standard Purchase Terms and the Kinder Supply, Installation & Site Services Subcontract Terms. The Subcontractor must not deliver Goods or mobilise to site until all required insurance, competency, induction and safety documentation has been submitted and accepted by Kinder. Where the Goods or Services relate to a Kinder customer contract, applicable customer site, safety, quality, insurance and performance requirements are flowed down to the Subcontractor as specified by Kinder.