In the Agreement, except where the context otherwise requires:
- “Agreement” means an agreement made in accordance with C3.
- “Acceptance” (of Order) means Western Power’s written acceptance of the Customer’s Order for Material, communicated to the Customer.
- “Australian Consumer Law” means the Australian Consumer Law as in force as a law of the Commonwealth under the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law (Western Australia) as in force as a law of Western Australia under the Fair Trading Act 2010b (WA).
- “day” and “days” means a working day when the banks are open to provide a full range of banking services from their banking chambers at Perth unless this Agreement specifies otherwise.
- “business hours” means between 0800 hours to 1600 hours on a day.
- “Credit Agreement” means any agreement between Western Power and the Customer dealing with payment of the Purchase Price under this Agreement or credit terms in relation to this Agreement.
- “GST” means an amount payable in the form of a goods and services tax in accordance with A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- "Location" means the location nominated by Western Power where the Customer can collect the Material. This shall be Western Power’s Jandakot Distribution Centre at Hope Road, Jandakot, unless otherwise specified.
- "Material" means the material, goods or equipment specified in an Order by the Customer to be supplied by Western Power.
- "Order" means an order issued by the Customer to Western Power specifying the Material to be supplied by Western Power.
- “Prescribed Term” means a term, condition or warranty that is implied in relation to the supply of the Material by operation of a written law (including the Australian Consumer Law).
"person" includes a body corporate, incorporated association, or an individual.
- "Purchase Price" means the total price in Australian currency for the Material specified in an Order, exclusive of GST.
- "Customer" means the person contracted to purchase the Material specified in an Order.
- “Tax Invoice” has the same meaning as that defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- “Western Power T&Cs” refers to the terms and conditions set out in this document.
- "Western Power" means Electricity Networks Corporation ABN 18 540 492 861 and includes its successors and assigns.
C2 CONSTRUCTION OF CONTRACT
The Agreement shall be governed by and construed according to the laws of the State of Western Australia and the parties submit to the non-exclusive jurisdiction of the courts of Western Australia.
C3 AGREEMENT TO, AND EVIDENCE OF, AGREEMENT
By completing and submitting an Order to Western Power, the Customer agrees to enter into, and be bound by, an Agreement with Western Power. If Western Power issues an Acceptance to the Customer in response to an Order, then an Agreement is formed between the Customer and the Contractor.
The Agreement will be comprised of, and be evidenced by:
- subject to C9 (Customer’s Order), the terms of the Customer's Order;
- Western Power's Acceptance; and
- the Western Power T&Cs; and
- any amendment agreed between the parties and recorded in writing by Western Power in accordance with these Western Power T&Cs.
C4 SALE AND PURCHASE
In consideration of payment of the Purchase Price plus GST, Western Power agrees to sell to the Customer, and Customer agrees to buy from Western Power, the Material in accordance with this Agreement.
C5 STATUTORY REQUIREMENTS
The Customer must, at its own expense, comply with all applicable statutory requirements including, without limitation, all legislation, regulations, by-laws, orders and lawful directions for the, transport, storage, use and disposal of the Materials.
The Customer must not assign the benefit of the Agreement, or any part of it, without the prior written approval of Western Power. For the purposes of this clause, an "assignment" includes any change in the majority ownership of the Customer.
Western Power will not unreasonably withhold consent to an assignment provided that:
- the assignor satisfies Western Power that the proposed assignee is financially and technically capable of performing all the obligations of the assignor under the Agreement; and
- the assignee signs a deed of assumption and covenant in terms required by Western Power to be bound by the terms of the Agreement in place of the assignor.
Western Power's consent to an assignment will not relieve the Customer from liability or obligation under the Agreement and will not operate as a release.
C7 RISK AND PROPERTY
C7.1 When risk in the Material passes to the Customer
The Material will be made available for collection by the Customer following the issue of the Tax Invoice. Risk in the Material (including, without limitation, risk of loss, theft or damage) will pass to the Customer upon the loading of the Materials onto any transport vehicle being used for or on behalf of the Customer even though the Materials may remain at the Location.
The Customer agrees that it releases Western Power from all liability with respect to the Material while it is in Western Power's possession.
C7.2 When title in the Material passes to the Customer
Property in the Material will not pass to the Customer until the Customer pays Western Power the Purchase Price in full, plus GST (if applicable).
From the time that the Material is collected by or on behalf of the Customer until payment, the Customer:
- holds the Material (in a fiduciary relationship with Western Power) as bailee only;
- must keep the Material separate from other items it holds; and
- must not consume, resell or transfer possession of the Material.
C7.3 Western Power's rights in relation to Material collected by the Purchaser
If the Customer:
- fails to pay the Purchase Price in full plus GST (if applicable) when due;
- pays for the goods by cheque (in whole or in part) and that cheque is not met on presentation;
- before the Customer pays for the Material, commits any act of bankruptcy, becomes bankrupt, or is insolvent under administration, as defined in section 9 of the Corporations Act;
- before the Customer pays for the Material, is or becomes insolvent within the meaning as given by any of section 9 and subsection 95A (2) of the Corporations Act or regulation 7.5.02 of the Corporations Regulations; or
- before the Customer pays for the Material, has a controller appointed, as defined in section 9 of the Corporations Act, in respect of any of the Customer’s property, then Western Power may (personally or through a representative):
- enter onto the premises where the goods are situated; an
- repossess the goods, notwithstanding that the goods may have been affixed to any structure by Western Power or the Customer and if necessary for that purpose, may sever the goods from any structure to which they may have been affixed. For the avoidance of doubt, once Western Power repossesses the goods, the Customer will no longer have any right or claim in relation to them.
C7.4 Customer indemnifies Western Power
The Customer must indemnify and keep Western Power indemnified against, and pay to Western Power on demand, all expenses, losses and damages incurred or sustained by Western Power as a result of or in relation to Western Power exercising its rights under:
- clause C7.3; or
- any other term, express or implied, of this Agreement as a result of the Customer's breach of C7.3;
and any bank or other costs, charges or expenses incurred by Western Power resulting from any Customer’s cheque not being met on presentation.
C8 GENERAL INDEMNITY
The Customer must indemnify and release Western Power against all claims, loss, costs or expenses arising from personal injury, death or damage to property caused to any person whosoever including Western Power to the extent caused directly or indirectly by any negligent act or omission of the Customer or its subcontractors resulting from the:
- loading of the Material at the Location;
- transportation or storing of the Material; or
- use or disposal of the Material.
C9 CUSTOMER’S ORDER
The Customer's Order will remain valid for acceptance by Western Power for 30 days from the date of the Order.
Any condition in the Customer's Order which has the effect of, or purports to have the effect of, limiting or excluding liability of the Customer, or which otherwise varies, or purports to vary, these Western Power T&Cs will be of no contractual force or effect unless the condition or departure is set out fully on the face of the Order and is expressly accepted by Western Power in its Acceptance.
C10 PRICING AND PAYMENT
The Purchase Price is fixed and firm.
The Customer agrees to pay the Purchase Price for the Materials, and pay any other charge, fee or other amount imposed or payable under these Western Power T&Cs.
Unless the Customer has entered into a written Credit Agreement with Western Power, the Purchase Price must be paid in full (by cleared funds) before the Materials are removed from the Location. If the Customer has entered into a written Credit Agreement with Western Power then payment of the Purchase Price will be in accordance with the Credit Agreement.
C10.3 Credit check
Western Power reserves the right to inquire as to the credit worthiness of the Customer. If, in its reasonable opinion, Western Power does not receive an acceptable credit reference, then Western Power may refuse to make the Material available for collection until the Customer pays all or some of Purchase Price.
C11 ACCESS TO LOCATION
Western Power will permit the Customer access to the Location to collect the Material from the Location during business hours.
Western Power will load the Material, unless the Customer is given express permission to do so by Western Power. The Purchase must comply with any reasonable direction from Western Power in connection with the loading of the Material.
If the Customer does not remove the Material within 30 calendar days of being notified that the Material is ready for collection then Western Power may impose, in its absolute discretion, a one off storage and restocking charge of $500 plus GST. The parties acknowledge that the amount of $500 represents a reasonable estimate of Western Power's costs in relation to storing and restocking the Material.
C12 INSPECTION OF MATERIAL
Western Power must allow the Customer to inspect the Material on reasonable notice prior to collection.
The Customer may inspect, and is deemed to have inspected, the Material prior to collection. The Customer is be deemed to have knowledge of and to accept all defects and omissions to the Materials subsequently collected that would reasonably have been apparent on inspection. If the Customer identifies a defect in the Material, it must promptly notify Western Power. If Western Power is reasonably satisfied that there is a defect in the Material, Western Power must either replace or repair the Material.
To the extent permitted by law, the Customer has no claim against Western Power for loss or damage for defects and omissions to the Materials that would reasonably have been apparent on inspection.
Within 2 days of collection the Customer must give Western Power written notice of all defects and omissions to the Materials that were not reasonably apparent on inspection prior to collection. To the extent permitted by law, Western Power’s sole obligation to the Customer for those defects and omissions will be to, in Western Power's absolute discretion:
- replace the Material;
- repair the Material; or
- pay for the Material to be repaired.
The Customer is not entitled to revoke an Order or to compensation if Western Power elects to make part of the Material available for collection.
If Western Power makes part of the Material available for collection, then it may issue a separate Tax Invoice in respect of each load which shall be payable in full by the Customer within 30 days of the date of the Tax Invoice unless the Tax Invoice specifies otherwise.
To the extent permitted by law, if Western Power elects to replace or repair Materials in accordance with clause C12, then the Customer must first return all the affected Materials to the Location, at its expense within 28 days of notifying Western Power of the defect.
C14 Dimensions, performance data and other descriptive details
The Customer acknowledges and agrees that, to the extent permitted by law:
- photographs, drawings, illustrations, weights, dimensions and any other particulars provided by Western Power to the Customer approximate the Material but may be subject to alteration without notice;
- any performance data provided by Western Power or a manufacturer to the Customer is an estimate only and should be construed accordingly; and
- unless agreed to the contrary in writing, Western Power reserves the right to supply an alternative brand or substitute product if the Material that is ordered is not reasonably available.
C15 Intended purpose
To the extent permitted by law, the Customer warrants that, before it ordered the Material, has satisfied itself that the Material is fit for its intended purpose and for the Customer’s own purposes.
C16 Warranty and disclaimers
To the extent permitted by law: -
- without limiting C12, the liability of Western Power in respect of a breach of a Prescribed Term relating to the Material or any part is limited at the option of Western Power to the replacement or repair of the Material or any part or payment of the cost of repairing or replacing the Material or any part;
- the Customer will not under any circumstances have any cause of action against or right to claim or recover from Western Power for, or in respect of, any loss or damage of any kind whatsoever caused directly or indirectly by any defect in material or workmanship of, or any other defect whatsoever in, or unsuitability for, any purpose of the Material or any part, or by default or negligence on the part of Western Power or of any servant, contractor or agent of Western Power relating to the supply of, or otherwise concerning products or any part; and
- Western Power’s liability for any breach of any warranty or of any term, express or implied and including any Prescribed Term, of in relation to the Material, will not extend in any circumstances to loss of profits, or other economic loss, or to loss arising from negligence or any other tort, in any case, whether direct, indirect, special, consequential or otherwise.
C17 Default of Customer
If the Customer defaults in payment of the Purchase Price or any of the Customer’s other obligations under the Agreement then, in addition to any other claim, right or entitlement that accrues to Western Power under the Agreement or otherwise (including under C7.3), Western Power may in its sole discretion refuse to supply or further supply any Material under the Agreement or any other contract, until the Customer has remedied its default.
C18 Customer’s cancellation
Unless otherwise agreed in writing, the Customer has no right to cancel or terminate the Agreement. If the Agreement expressly reserves a right of cancellation or termination, the Customer must exercise that right by notice in writing to Western Power within 7 days of the date on which the Agreement was made. On cancellation, any deposit paid by the Customer to Western Power, is forfeited to Western Power, in full.
C19 Safety and Health
Prior to entry onto the Location for collection of the Material, the Customer must read and comply with
- the latest edition of Western Power's "Safety Manual " available from www.westernpower.com.au
- the latest edition of Western Power’s “Jandakot Distribution Centre Site Regulations” available from www.westernpower.com.au; and
- with any site specific directions which may be issued by Western Power or its representative relating to the safety of persons or property.
C20 Environmental policy
Prior to entry onto the Location for collection of the Material, the Customer must read and in the performance of the Agreement, not act inconsistently with the principles set out in the latest edition of Western Power’s “Environmental Policy” (available from the following internet address: www.westernpower.com.au and comply with any specific directions which may be issued by Western Power relating to the policy.
C21.1 Insurances to be effected
(a) Before entering Western Power’s site to collect Material (or for any other reason), the Customer must ensure that both it and its transport contractors, subcontractors and agents
effect the following insurance policies in the following manner:
(i) Insurance of Employees – Workers’ Compensation
(A) The Customer must obtain insurance, in the name of the Customer, against any claim in respect of any personal injury to or death of any person employed or engaged by the Customer:
- at common law and for breach of any statutory duty or legislative requirements; and
- for any compulsory statutory workers’ compensation benefits or other liability under the Workers’ Compensation and Injury Management Act 1981 (WA) or any other applicable legislation.
(B) The Customer must ensure that the insurances obtained in accordance with clause C21.1(a)(i)(A)(1.) provide cover to such amount as prescribed from time to time by the Workers’ Compensation and Injury Management Act 1981 (WA) or any other applicable legislation
(ii) Motor Vehicles and Equipment – Transport of Material
(A) The Customer must obtain insurance against all loss and /or damage to all items of the Customer’s plant and equipment (whether owned, hired or leased) used in the transport of purchased or supplied Material.
(B) The Customer must insure all vehicles or items which are licensed as motor vehicles or are required to be so licensed (whether owned, hired or leased) used in the transport of Material under:
- compulsory motor vehicle third party insurance; and
- a comprehensive motor vehicle and third party liability policy.
(C) The Customer must ensure that the limit of liability for the insurances obtained in accordance with clause C21.1(a)(ii)(A) and C21.1(a)(ii)(B) have a limit of liability of not less than $20 million for any one occurrence and unlimited as to the number of occurrences.
(b) The insurances contemplated by this clause C21 are primary and not secondary to the indemnities referred to in any Order or under the Agreement.
C22 Waiver and election
- Western Power’s waiver of any default or extension of time for the Customer to perform an obligation under the Agreement will not operate as a waiver of any other default or extension of time, or as a general waiver or extension of time.
- No conduct of Western Power (including a failure to exercise, or delay in exercising, the right) operates as an election not to exercise the right or otherwise prevents the exercise of the
- An election not to exercise a right on one or more occasions does not operate as an election not to exercise that right or as an estoppel precluding enforcement of that right if it arises
- The exercise of a right does not prevent any further exercise of that right or of any other right.
All notices required for the purpose of the Agreement must be in writing, addressed to the recipient at the address stipulated in the Order or Acceptance as the case requires. In the absence of evidence to the contrary, the notice will be taken to be served:
- if served at the address of the recipient during business hours, on that day;
- if served by email, on the date that it is sent if it is sent during business hours and otherwise the next day;
- if served by ordinary pre paid mail, 3 days after the date of posting; or
- if served by facsimile, on completion of a successful transmission recorded by the senders machine, if that occurred in business hours and otherwise on the next day.
C24 Cable drums
The Customer acknowledges that any cable drum supplied with the Material is the property of Western Power and title to it remains with Western Power at all times.
The Customer agrees that:
- the Customer holds any cable drum supplied with the Material as a bailee of Western Power;
- risk in the cable drum (including, without limitation, risk of loss, theft or damage) passes to the Customer on the issue of a Tax Invoice to the Customer, and remains with the Customer until the cable drum is returned to Western Power;
- once the Material has been removed from the cable drum, it will return the cable drum to the Location as soon as possible at its own expense (or to such other place as reasonably directed by Western Power); and
- if the cable drum is not returned to Western Power in accordance with this clause, then Western Power may, by written demand, require the Customer to pay Western Power an amount equal to the replacement cost of the cable drum. The Customer must pay the amount to Western Power within 30 days of receiving the notice. The replacement cost is to be the replacement cost to Western Power prevailing at the time the written notice is given to the Customer.