Terms and Conditions

Conditions of Purchase

  1. Definitions and Interpretation
    1. These terms have these meanings when used in these Conditions:
      Agreement means the agreement between the Vendor and RayGen for the supply of the Product and/or Services comprised of the Purchase Order, these Conditions and all documents attached or incorporated by reference;
      Conditions means these conditions of purchase;
      Confidential Information means all documentation, data, drawings, intellectual property and other information of a party (and includes without limitation Personal Information) except to the extent that such information is in the public domain through no breach of this Agreement;
      GST Act means A New Tax (Goods and Services Tax) Act 1999;
      Personal Information has the meaning given in the Privacy Act 1988 (Cth);
      Personnel includes the Vendor’s employees, agents and/or subcontractors;
      Privacy Laws means:

      1. the Privacy Act 1988 (Cth) (“Privacy Act”), the Telecommunications Act 1997 (Cth), Telecommunications (Interception) Act 1979 (Cth), and the privacy protection policy issued by RayGen from time to time; and
      2. any other legislation, principles, industry codes and policies relating to the collection, use, storage or granting of access rights to Personal Information, which RayGen notifies the Vendor is a Privacy Law for the purposes of this Agreement;

      Product means all goods or other materials to be supplied by the Vendor pursuant to the Purchase Order including work product the output of Services;
      Purchase Order shall mean the document entitled “Purchase Order” in which these Conditions are referred to or attached to;
      Services mean services to be provided by the Vendor specified in a Purchase Order;
      RayGen means RayGen Resources Pty Ltd ABN 53 142 807 485.
      Vendor means the company, firm, person or persons named in the Purchase Order and
      Work means the performance of the Services or delivery, supply or manufacture in whole or in part of the Product.

  2. Formation of Contract
    1. Acceptance of the Purchase Order shall be deemed to be an acceptance of these Conditions to the exclusion of any other terms, unless and to the extent that RayGen expressly agrees in writing to the incorporation of such terms or any variation of these Conditions by re-issue of the Purchase Order specifying the amendments as special conditions under clause 14.6.
    2. If the Vendor commences Work the Vendor shall be deemed to have accepted the Purchase Order and these Conditions notwithstanding its failure to provide written acknowledgment.
    3. If the Vendor has accepted the Purchase Order, it will be bound to provide the Product and Services specified in the Purchase Order in accordance with the Agreement including any project or other plan, specification or installation instructions incorporated by reference into the Agreement.
  3. Vendor’s Obligations and Warranties:
      The Vendor:
    1. shall be responsible for any discrepancies, errors or omissions in specifications, drawings or any particulars supplied by it and must carefully check information of any kind provided to it by RayGen;
    2. shall comply with all Privacy Laws in relation to the Personal Information (as that term is defined in the Privacy Act), whether or not the Vendor is an organisation bound by the Privacy Act and if it is a small business under the Privacy Act, then upon reasonable request by RayGen, the Vendor agrees to choose to be treated as an organisation bound by the Privacy Act in accordance with Section 6EA of that Act during the term of the Agreement;
    3. shall and shall ensure that its Personnel do not make public or disclose any Confidential Information of RayGen except to the extent required by law to do so and subject to giving RayGen reasonable notice prior to disclosure;
    4. shall ensure that Product packaging is suitable and environmentally friendly (biodegradable);
    5. shall at its cost comply with all relevant laws, orders, regulations or by-laws and bear any additional costs arising from non- compliance;
    6. acknowledges that, to the extent that the Work comprises “building works” as that term is defined in section 3(1) of the Code for the Tendering and Performance of Building Work 2016 (the Code), the Code may apply to the Agreement; if the Code applies, by agreeing to undertake the Work, the Vendor it is taken to have read and agreed to comply with the Code and declared that it and its subcontractors, as at the date of accepting RayGen’s Purchase Order, and until the last of its obligations in relation to the Work is performed:
      1. comply with the Code;
      2. are not be covered by an enterprise agreement that does not meet the requirements of s11 of the Code;
      3. are not subject to an Exclusion Sanction (as defined in s3(1) of the Code);
      4. have not had an adverse decision, direction or order made by a court or tribunal for a breach of the Fair Work Act, a designated building law, work health and safety law or competition and consumer law and failed to comply with the decision, direction or order;
      5. will only use products in relation to the Work that comply with the relevant Australian standards published by, or on behalf of, Standards Australia;
      6. unless approved otherwise by the Australian Building and Construction Commissioner, are not excluded from performing building work funded by a state or territory government;
      7. will comply with any workplace relations management plan that applies to the Work, as notified to the Vendor by RayGen;
      8. will rectify any non-compliance with this clause;
      9. will provide such reports, information and co-operation as RayGen reasonably requires for RayGen to meet its obligations under the Code.
    7. warrants, without limiting its other warranties under this Agreement or otherwise, that:
      1. all Product will:
        1. be new, of merchantable quality, and fit for its intended purpose;
        2. provide the full functionality and performance claimed for the Product;
        3. operate in accordance with its specifications; and
        4. (in the case of software and hardware) when in operation, calculate dates correctly for the period of the useful life of the Product and
      2. all Services will be provided with due skill and care to the standard reasonably to be expected of a person performing the business of the Vendor.
  4. Defects
    The Vendor shall, at its cost and without prejudice to any of RayGen’s other rights and remedies, rectify all defects occurring in the Work within the greater of either 18 months of the date of receipt of delivery by RayGen or such longer period of warranty usually provided by the Vendor in relation to the Product or Services or specified in the Purchase Order. Such rectification shall be effected as a matter of urgency and, if any defect is not rectified within a reasonable period specified by RayGen (not being less than 14 days), RayGen may engage a third party to rectify the defect and recover its costs of doing so as a debt due and payable by the Vendor.
  5. RayGen Property
    1. Legal title to and property in all material supplied by RayGen in respect of the Purchase Order shall remain with RayGen and shall not pass to the Vendor or its successors or assignees under any circumstances whatsoever. The Vendor may only use such material in performing its obligations under the Agreement and shall bear the risk of damage or loss and indemnify RayGen for all costs and expenses incurred or suffered as a result of such damage or loss including the cost of replacing such material.
    2. All drawings, specifications, information and samples provided by RayGen shall remain RayGen’s sole and exclusive property, shall be deemed to be Confidential Information and shall not be disclosed by the Vendor to a third party except with the prior written consent of RayGen. RayGen makes no warranties regarding the accuracy of, and shall not be liable for, any defects, mistakes or inaccuracies in such documents, information or samples.
  6. Intellectual Property Rights
    1. Copyright, patent, database rights, registered designs, trademarks, eligible layout rights and all other rights of a proprietary nature created or arising as a result of intellectual activity in carrying out the Work, vest in and are transferred by the Vendor to RayGen on creation. This clause does not alter the ownership of any such rights pre-existing the date of the Purchase Order.
    2. The Vendor warrants that RayGen’s use of the Products provided by the Vendor under this Agreement shall not infringe any author’s moral rights under the Copyright Act 1968.
    3. For the purposes of this clause 6, RayGen’s use of the material provided by the Vendor includes RayGen’s right to reproduce, sub-license, publish, copy, adapt, communicate to the public, materially distort, destroy, mutilate or in any way change the materials or part of the Works to which the materials or any other work provided by the Vendor under this Agreement relates:
      1. with or without attribution of authorship;
      2. in any medium; and.
      3. in any context and in any way it sees fit.
    4. The Vendor shall fully indemnify RayGen against any loss, costs (including legal fees) and expenses arising from any claim by a third party in respect of the Works including a claim that the use of the Product or any part of the Product constitutes an infringement of a registered design, trademark, copyright, moral right or patent (other than a part based on a design specified by RayGen). The Vendor shall at its expense either replace such infringing part with a non-infringing part, or modify such part so as to render it to be non- infringing (in either case, to deliver the same functionality and performance as the infringing part), or procure for RayGen the right to use such a part.
  7. Time and Delivery
    1. The times and dates stated in the Purchase Order for delivery or completion including any extension of such time or date granted in writing by RayGen shall be binding and be of the essence of the Purchase Order.
    2. Unless otherwise specified in the Purchase Order, Product is to be delivered without additional charge to RayGen, to the forwarding address stated in the Purchase Order.
  8. Risk, Title and Acceptance
    1. Risk in the Product shall remain with the Vendor until the Product has been accepted by RayGen. Title to Product will pass to RayGen upon delivery.
    2. If the Product does not perform, or is not substantially in accordance with the Agreement (including any specifications), RayGen may reject all or part of the Product. Services (excluding any services which give rise to goods) will be accepted as completed when RayGen confirms in writing that the Services have been completed to its reasonable satisfaction.
    1. Price and Payment
      1. Prices are, unless otherwise specified, fixed and not subject to variation except as permitted under the Agreement.
      2. Subject to clause 9.3 prices in the Purchase Order include all Government taxes and charges.
      3. If GST is payable in relation to a Taxable Supply made by RayGen, under or in relation to the Purchase Order the amount payable for that Taxable Supply will be the amount payable under the Purchase Order plus GST. Terms defined in the GST Act have the same meaning given to those terms when used in the Agreement.
      4. Invoices submitted by the Vendor must be a tax invoice as required by the GST Act and specify the Purchase Order number, Product item number and other relevant details as required by RayGen. Invoices may only be rendered in accordance with the Purchase Order.
      5. Subject to any contrary term of this Agreement, payment will be made on the last day of the month following the month in which the Vendor’s invoice is received.
      6. RayGen may set off any amount due and payable by RayGen to the Vendor against any amount owing by the Vendor, however or whenever incurred.
      7. RayGen has no obligation to make any payment in respect of any Vendor’s invoice unless and until:
        1. if the Product or Services are to be supplied to or from and/or delivered to New South Wales, the Vendor has first supplied to RayGen a completed Subcontractor’s Statement regarding Workers Compensation, Pay-roll Tax and Remuneration in the form prescribed by the New South Wales Government for the month to which the Vendor’s invoice relates;
        2. if Product or Services are to be supplied to or from and/or delivered to any Australian State or Territory other than New South Wales, the Vendor has first supplied a statutory declaration for the month to which the Vendor’s invoice relates declaring that, in respect of the Work that is subject of the Vendor’s invoice and in any applicable form:
          1. all of the Vendor’s Personnel have been paid all monies due and payable to them and all taxes, whether State or Federal, have been paid including any State or Territory pay-roll tax; and
          2. the Vendor provides certificates of currency for all insurances required to be effected and maintained under the Agreement and required by any Workers’ Compensation Statute or Regulation of any State or Territory applicable to the provision of the Product or Services.
      8. If RayGen becomes liable to pay any amount to any third party by reason of the Vendor’s failure to provide the documentary evidence required for payment specified in clause 9.7, clause 9.6 applies and RayGen may have recourse to any security it may be holding from the Vendor to pay any such liabilities.
    2. No Inducement
      If the Vendor either directly or indirectly provides to an employee of RayGen either before or after the placing of the Purchase Order, any benefit of any character whatsoever which might reasonably be construed as an inducement for the employee to show favour to the Vendor in respect of any matter including the placing of the Purchase Order, then RayGen may at its option give notice to the Vendor that the Agreement is void and of no force or effect.
    3. Liability, Indemnity and Insurance
      1. The Vendor indemnifies RayGen, its officers, employees, agents, advisers, contractors (other than the Vendor) (Indemnified Parties) in respect of any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment (including legal expenses on a full indemnity basis) which any of the Indemnified Parties pays, suffers, incurs or is liable for in connection with:
        1. any unlawful act of the Vendor or the Vendor’s Personnel;
        2. personal injury or death of any person or loss of or damage to any property (including the property of RayGen) resulting from a breach of this Agreement by the Vendor or the Vendor’s Personnel or negligence by the Vendor or the Vendor’s Personnel; and
        3. any breach by the Vendor of its obligations under clauses 3.2 and 3.3; The obligation of the Vendor to indemnify under this clause shall be reduced to the extent that a negligent act or omission of RayGen has directly caused the loss, damage or injury.
      2. Except to the extent that liability cannot be legally limited or excluded and whether in contract, tort, negligence, under an indemnity, strict liability or otherwise:
        1. RayGen’s liability arising out of or in connection with the Agreement shall be limited to payment of the prices due and owing in accordance with clause 9.5 and
        2. in no event shall RayGen be liable for economic loss, loss of profit, loss of revenue or loss of contract, indirect or consequential loss or damage.
      3. The Vendor shall at its expense effect and maintain:
        1. a public and products liability policy for an amount not less than $10 million per occurrence;
        2. an insurance policy covering loss of or damage to the Work;
        3. if the Work involves any consulting or design, a professional indemnity policy for an amount of not less than $5 million per occurrence; and
        4. such insurance as is legally required under any Workers’ Compensation legislation applicable in the location where the Work is to be performed.
      4. The policies in clauses 11.3(a), (b) and (c) must be maintained with a reputable insurer licensed to provide insurance in Australia. The Vendor shall provide satisfactory evidence of the currency of such insurance to RayGen upon request.
    4. Site Access
      1. If the Work is to be performed at a specified location (Site), the Vendor will be given access to the Site for a period sufficient to enable it to perform its obligations under the Agreement. Access shall be at a mutually convenient time and the Vendor acknowledges that it may have to co-operate with other contractors on Site at the same time as the Vendor. The Vendor acknowledges that it has, prior to accepting RayGen’s Purchase Order, had the opportunity to inspect the Site and verify it is suitable for the performance of the Work.
      2. Unless otherwise agreed in writing the Vendor shall provide at its own expense all site facilities, constructional plant and other amenities as may be necessary for the performance of the Work.
      3. The Vendor shall comply with all occupational health and safety and security regulations applying on Site and when on RayGen premises, with all RayGen security, sexual harassment, occupational health and safety policies and all other workplace regulations and policies of RayGen.
    5. Termination
      1. If the Vendor defaults in the due observance or performance of any or all of its obligations under the Agreement and does not rectify such default within 14 days of being requested to do so, or if a liquidator, or other like officer is appointed over all or some of the assets of the Vendor or there is a change in ownership of the Vendor, then RayGen may, at its option and without prejudice to any other rights RayGen may have against the Vendor, by notice in writing terminate this Agreement and retain or enforce any security given. Any monetary security so retained or the proceeds of enforcement of any security may be applied by RayGen against any loss and damage incurred by RayGen arising from such termination.
      2. RayGen may at any time without cause, vary, cease or suspend the Work or terminate the Agreement by giving notice in writing to the Vendor. On receipt of a notice from RayGen, the Vendor shall immediately, vary, cease or suspend Work in accordance with and to the extent specified in the notice. If such notice is given, RayGen shall only be liable for the amount of any direct cost and normal overheads falling within the scope of the Purchase Order, as have accrued to the date of receipt of the notice from RayGen up to a maximum of the amounts that would otherwise have been payable under the Purchase Order.
    6. General
      1. For the purpose of service of any document or notice in connection with the Purchase Order it shall be sufficient for either RayGen or the Vendor to forward such document or notice by ordinary mail transmission, telegram or facsimile to the address of the other party shown herein. The parties agree that they will conduct business electronically in relation to the purchase of Product and Services.
      2. If the whole or any part of these Conditions is or becomes or is held to be illegal invalid or unenforceable, then the whole and each part of the clauses of these Conditions shall (to the extent necessary to avoid such illegality invalidity or unenforceability) be interpreted read down or severed without affecting the operation of the remaining clauses.
      3. The Vendor shall not, without the prior written consent of RayGen, assign, transfer or subcontract the performance of any or all of the Vendor’s obligations or benefits under this Agreement to a third party.
      4. This Agreement may only be amended in writing signed by both parties.
      5. This Agreement shall be construed and operate in conformity with the laws of the State of Victoria, Australia and the parties irrevocably submit to the jurisdiction of the courts of that state and the appeal courts from them.
      6. The Purchase Order may include additional or special terms and conditions which are expressed to override, exclude or modify these Conditions. Where such terms are included they will take precedence in the following order:
        1. the terms of the Purchase Order;
        2. these Conditions;
        3. any referenced document, plan or specification whether attached or incorporated by reference.
    7. Security
      1. RayGen grants to the Vendor a Purchase Money Security Interest (PMSI) in all Product supplied by the Vendor (Secured Property) as security for the payment by RayGen of the price for those Products.
      2. RayGen irrevocably gives the Vendor authority to register a financing statement for the PMSI on the Personal Property Securities Register (PPSR).
      3. Sections 95, 118, 121(4), 125, 130, 132 and 135 of the PPSA shall not apply to the extent that they impose obligations on the Vendor or RayGen under this clause 15.
      4. RayGen and the Vendor each irrevocably waive their right to receive from the other party a copy of any financing statement, financing change statement or verification statement that is registered, issued or received at any time in relation to a Security Interest granted under this clause 15.
      5. RayGen and the Vendor agree that neither party may disclose information that:
        1. can be requested under section 275(1) of the PPSA (subject to any exceptions that may apply under section 275(7) of the PPSA); or
        2. is protected against disclosure by a duty of confidence.

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