Terms & Conditions

1 GENERAL

1.1 Every purchase order (Order) Racing and Wagering Western Australia ABN 21 347 055 603 (we, us or our) issues is an offer to acquire goods and / or services from you subject to these terms and conditions (Standard Terms) and any written special conditions that we include with our Order.

1.2 Where you accept our Order, there is a contract between us and you on this basis. Any terms and conditions in your quote, offer document, Order acceptance or any other document you supply are excluded, except where these Standard Terms are replaced by a formal agreement for the provision of the goods and services which is signed by both parties or we otherwise agree in writing.

2 SUPPLY OF GOODS AND SERVICES

2.1 You must supply the goods or services to us in accordance with the Order.

2.2 Where the Order relates to goods or services the subject of a separate contract between us and you, the terms of that separate contract also apply to the extent of any inconsistency with the Contract unless we have clearly stated otherwise on the Order.

3 CANCELLATIONS

We may cancel an Order by written notice to you:

(a) at any time before supply; or

(b) after supply, if goods or services are not in accordance with our Order (including where wrong quantities are delivered) or if you otherwise breach these Standard Terms, and

we will have no liability whatsoever to you for such cancellation.

4 VARIATIONS

4.1 We may at any time issue instructions to make variations to the goods or services (including any addition to or reduction in the scope of services) and you must comply with our instructions as soon as practicable.

4.2 We will value any additional amount that we must pay you as a result of a variation at the appropriate rates and prices included in the Order. If the Order does not include appropriate rates and prices, you and we, each acting reasonably, will endeavour to agree a fair valuation. If we cannot reach such an agreement within a reasonable period of time, we (acting reasonably) will determine any additional amount that we must pay you.

4.3 You must not change the character, nature or quality of the goods or services, including any addition, reduction or omission to any part of the goods or services except as we may direct in writing.

5 DELIVERY

You must supply the goods and/or services as and when specified in our Order to the Delivery Point or as otherwise directed by us (at any time) in writing. You must keep us informed of any delays or other matter which may affect the delivery of the goods or performance of the services. Time is of the essence in this respect.

6 YOUR OBLIGATIONS

When performing your obligations under the Order, you must ensure that you, your employees and agents:

(a) comply with the Order and all applicable Laws, regulations, codes, Australian Standards and any procedures we provide to you, and all reasonable instructions we give you;

(b) do not interfere with our activities or the activities of any other person at the Delivery Point;;

(c) carry out and perform your obligations in a safe manner and in a way which does not prejudice safe working practices, safety and care of property or continuity of work;

(d) unless otherwise set out in the Order, supply all personnel, materials, plant, resources, equipment and all other things necessary to perform the Order;

(e) obtain all authorisations require to perform the Order; and

(f) provide all such information and assistance as we reasonably require.

7 QUALITY

7.1 You must ensure that:

(a) all goods or services strictly conform to the description of the goods or services set out in the Order;

(b) all goods are new, fit for the purpose for which they are acquired, free from damage and defects in workmanship and are of merchantable quality;

(c) services are fit for their intended purpose, are performed in a workmanlike manner to a high degree of professional care and skill by appropriately trained, qualified and skilled personnel. If the services include design services, the works constructed in accordance with the design must be fit for their intended purpose;

(d) where you provided a demonstration of the services or represented that a particular result could be achieved by the services before the date of the Order, the services correspond in nature and quality with the demonstration or the services that achieved that result (as the case may be).

7.2 You must take all steps to ensure that we have the full benefit of any warranty or guarantee given by the manufacturer of any goods the subject of the Order, and if we require you to do so you must at your cost, pursue any manufacturer’s warranties on our behalf.

8 INSPECTION AND TESTING

We, or any agent we appoint, have the right to carry out reasonable inspections and testing to ensure that the goods and services comply with the Order and these Standard Terms. If we ask you to do so, you must provide all reasonable assistance (including providing access to any premises, including your subcontractor’s premises) as we may require to facilitate such inspections and testing.

9 ACCEPTANCE

Acceptance of the goods or services occurs on the earlier of:

(a) our representative notifying you in writing that the goods or services have been accepted; or

(b) 14 days after delivery of the goods or services to the Delivery Point.

10 REJECTION

10.1 We may reject goods or services (including any replacement goods or services) which are defective or otherwise do not comply with our Order or these Standard Terms during the defects period, even if we have previously inspected and / or accepted them.

10.2 Where we reject goods or services, you must, at our option and within 5 days:

(a) replace, repair or re-supply the goods or services at your expense; or

(b) refund to us any amount we paid for the rejected goods or services.

10.3 If you fail to remedy any defective or non-compliant goods or services in accordance with the above timeframe, we may arrange to have the defects or non-compliance remedied by alternative means and may recover the costs of doing so from you.

11 DEFECTS

11.1 At any time before the expiry of the Defects Liability Period (where applicable), if we direct you in writing to do so, you must, at your cost promptly rectify all Defects other than a Defect caused by our negligence.

11.2 If you fail to rectify a Defect within the period specified in clause 10.2, without prejudice to any other rights we may have against you, we may cause the Defect by any alternative method we choose and may recover the costs of doing so from you as a debt due and payable on demand from the Contractor to the Principal.

11.3 Where a Defect has been rectified the rectification work will be the subject of an additional Defects Liability Period commencing on the date the relevant rectification works are completed.

12 INVOICING AND PAYMENT

12.1 The price for goods and services supplied under an Order is the price stated in our Order.

12.2 Unless the Order expressly states otherwise, the price stated in the Order includes:

(a) any applicable GST;

(b) all packaging, freight, delivery and insurance charges; and

(c) all other costs, expenses and liabilities you incur in fulfilling the Order.

12.3 Subject to clause 11.4, you may only invoice us after all goods and services have been delivered or completed to our satisfaction. Your invoice must:

(a) be correctly addressed;

(b) identify our Order number;

(c) accurately describe the goods delivered or services performed;

(d) state the amount claimed;

(e) be a valid invoice for GST purposes; and

(f) where we request it, be accompanied by documentation substantiating to our reasonable satisfaction the amount claimed.

12.4 If we agree in writing that you may do so, you may submit an invoice at the end of each month during which you have provided services in accordance with an Order for the services performed in that month or any previous month for which you have not sent us an invoice.

12.5 If an invoice does not contain the information required in clause 11.3, we may either complete the missing details or return the incomplete invoice to you. Where we return the invoice to you, you must submit a replacement invoice that complies in all respects with clause 11.3.

12.6 We will pay all correctly rendered and undisputed invoices within 20 days of the end of the month in which we receive your invoice.

12.7 All payments we make are on account only and do not evidence of our acceptance of the value, quantity or quality of the goods or services or that they comply with the Order or these Standard Terms.

12.8 If we dispute an invoice:

(a) we are not obliged to pay that invoice until the dispute is resolved; and

(b) you must give us any information or documents that we reasonably request in relation to the invoice or such dispute.

12.9 You agree that in addition to all of our other rights, we may deduct from moneys we owe you in respect of any invoice all amounts that you owe us, including under any indemnity.

13 GOODS AND SERVICES TAX

13.1 If GST is imposed on any supply made by the Contractor in connection with the Contract, the Contractor may recover from the Principal, in addition to the Contract Price, an amount equal to the GST payable in respect of that supply.

13.2 The Contractor must first provide the Principal with an Invoice before the Principal will pay the GST amount to the Contractor.

14 TITLE AND RISK

14.1 Title in the Goods will pass from the Contractor to the Principal upon payment of the Contract Price. The Contractor warrants that title in the Goods will be transferred to the Principal without any encumbrances or liens.

14.2 Risk in the Goods will pass to the Principal on acceptance of the Goods in accordance with clause 3.3

14.3 You warrant that:

(a) you have complete ownership of the goods free of any encumbrances;

(b) we will receive clear and complete title to the goods free from any encumbrances;

15 CONFIDENTIAL INFORMATION

15.1 Subject to clause 15.2, you must keep our Confidential Information confidential and must not directly or indirectly disclose, use, record by any means, reverse engineer or copy it for any purpose other than to fulfil the Order.

15.2 You may use or disclose our Confidential Information:

(a) to any of your personnel who require the information to perform the services or deliver the goods;

(b) to the Contractor’s legal advisers for the purpose of obtaining legal advice; or

(c) where required by Law.

16 INTELLECTUAL PROPERTY

16.1 Subject to clause 16.3, your Intellectual Property remains vested in you and our Intellectual Property vested in us.

16.2 We will own all Intellectual Property that you create in the performance of the services and the supply of the goods.

16.3 You hereby grant us a non-exclusive, perpetual, royalty-free, irrevocable, transferable, sub-licenseable licence (with the right to grant sub-licenses on the same terms) to use your Intellectual Property to the extent necessary to allow us to use the goods and the services.

17 INSURANCE

17.1 Where you supply goods, you must effect and maintain with a reputable insurer insurance covering the goods against all risks to the point of delivery at the Delivery Point. If we reject the goods, they are at your risk from the date of our rejection and you must effect insurance covering the goods against all risks.

17.2 Where you supply services you must effect and maintain with a reputable insurer all insurance policies required by law, including the following:

(a) public and products liability insurance covering liability for damage to property and the death of or injury to any person (other than as covered under a workers compensation policy) in an amount of not less than $10 million in respect of each and every claim, unlimited as to the number of occurrences for public liability;

(b) workers compensation insurance as required by law, including cover for common law liability for an amount of not less than $50 million for any one occurrence;

(c) motor vehicle insurance covering all vehicles, plant and equipment (whether owned, hired or leased) used in connection with the Order for loss or damage of not less than the market value and third party liability of not less than $20 million in respect of each and every claim;

(d) insurance covering property, goods, materials you own, hire, lease or use in connection with the Order, for an amount not less than the market value of those insured items;

(e) any additional insurance we reasonably request; and

(f) where you are providing professional services, professional indemnity insurance of not less than $2 million for each claim and in the aggregate for all claims arising in the same insurance period, covering your liability for any professional services you or your personnel provide in connection with the Order. Where such insurance is effected on a ‘claims made’ basis, you must maintain the policy for a period of at least 7 years after the Completion Date or the earlier termination of the Contract.

17.3 You must provide us with certificates of currency for each of the insurance policies above within 3 business days of our written request.

17.4 If you subcontract any part of your obligations under the Order or these Standard Terms with our consent, you must ensure that every subcontractor effects and maintains all of the insurance policies required under this clause as appropriate for the work being performed by that subcontractor.

18 INDEMNITY AND LIMITS OF LIABILITY

18.1 You indemnify us, our officers, employees, agents and contractors for and against all loss, damage, claim (including third party claims), expense or liability arising from or incurred in connection with:

(a) your performance or breach of the Order or these Standard Terms;

(b) any goods or services you supply;

(c) a claim by a third party that the goods or services infringe its Intellectual Property; and

(d) any negligent or wilfully wrong act or omission by you, your employees, agents and contractors,

except to the extent that the loss, damage, claim, expense or liability is caused by our negligence or the negligence of our officers, employees, agents and contractors.

18.2 Neither party is liable to the other for Consequential Loss.

19 TERMINATION

19.1 In addition to our other rights, we may terminate the Order:

(a) at any time and in our absolute discretion by giving you 7 days’ notice;

(b) immediately if you fail to supply goods or services by the date required in our Order;

(c) if you breach the Order or these Standard Terms and you fail to remedy that breach within 14 days of our notice requiring you to remedy the breach; or

(d) immediately if an Insolvency Event occurs.

19.2 On termination you must promptly return to us any of our Confidential Information and any property and documents in your possession which we own or in which we have an interest.

19.3 If we terminate the Order under clause19.1(a):

(a) you are entitled to payment as set out in the Order for the part of the goods or services provided in accordance with the Order and these Standard Terms up to the date of termination;

(b) you are not entitled to, and we are not liable for, any additional amounts whatsoever.
19.4 Subject to clause 19.3, termination of the Order, however it may occur, does not prejudice any accrued claim that either party may have against the other.

20 NOTICES

Any notice or other communication relating to the Order or these Standard Terms must be in writing, signed by the sender or its agent, and either hand delivered, sent by pre-paid post, faxed or emailed to the other party at the address, fax number or email address set out in the Order.

21 DISPUTES

21.1 Neither party may commence any action, bring any proceedings or seek any relief or remedy in a court, except urgent interlocutory or equitable relief, from a court in respect of a dispute until they have complied with the dispute resolution process in accordance with this clause 21.

21.2 If any dispute arises between the parties in relation to the Order or these Standard Terms, either party may give notice of the dispute to the other party.

21.3 Where a party gives notice in accordance with clause 21.2, a senior representative of each party must promptly meet in person and attempt to resolve the dispute. If the parties are unable to resolve a dispute within 21 days of the notice referred to in clause 21.2, then either party may issue court proceedings.

22 GENERAL

22.1 The Order and these Standard Terms constitute the entire agreement between us and you and they supersede all prior representations, discussions, negotiations, understanding and agreements between us and you.

22.2 The Order and these Standard Terms are governed by the law in force in Western Australia and each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in Western Australia.

22.3 You must not assign or novate the Order or assign any other right, benefit or interest under the Order to any person or entity without our prior written consent.

22.4 You must not, without our prior written consent, which consent must not be unreasonably withheld, subcontract any of your obligations under the Order or these Standard Terms.

22.5 No term or provision of the Order or these Standard Terms will be construed against a party on the basis that the Order or these Standard Terms were drafted by that party.

22.6 The Order is for the non-exclusive supply of goods or services and we may, if we think fit, enter into other contracts for the supply or performance of the same or similar goods or services with other contractors.

22.7 Any provision of the Order or these Standard Terms which is illegal, void or unenforceable will be ineffective to the extent only of that illegality, voidness or unenforceability without invaliding the remaining provisions.

22.8 If we are the subject of a restructure or a disposition required by Law, our rights and obligations under the Order and these Standard Terms are novated to and assumed by our successor after the restructure or disposition or to the appropriate legal entity as we reasonably determine.

22.9 Clauses 12.7, 12.9, 14, 15, 16, 17.2(f0, 18, 19.4 and 22 survive the termination or expiry of the Order.

23 DEFINITIONS

Completion Date means the date on which performance of the services is completed.

Confidential Information means the Order, these Standard Terms and all information (regardless of its form) which we directly or indirectly disclose to you or your officers, employees, agents and subcontractors and their respective employees and agents which we treat or designate as confidential, or which you or your officers, employees, agents and subcontractors and their respective employees and agents ought to know is confidential, but does not include information which is or becomes public knowledge (other than by the Contractor’s disclosure or breach of the Contract).

Consequential Loss means any loss of production, loss or revenue, loss of profit, loss of business reputation, business interruptions, loss of opportunities, loss of anticipated savings or wasted overheads.

Date of Delivery means the date on which the goods are delivered to the Delivery Point.

Day means a business day that is not a Saturday, Sunday, a public holiday in Western Australia or 27, 28, 29, 30 or 31 December.

Defect means any defect, error, damage, deficiency, fault or inadequacy in the design, performance, workmanship, quality or makeup of the Goods or Services.

Defects Liability Period means a period of 12 months commencing:

(a) in respect of the goods, on the Date of Delivery; and

(b) in respect of the services, on the Completion Date, and, where relevant, any additional period of time specified in accordance with clause 9.4.

Delivery Point means the place set out in the Order for delivery of the goods or such other location as we nominate in in writing.

goods means all goods, materials, supplies, equipment or other items set out in the Order.

GST means goods and services tax or similar value added tax levied or imposed in Australia pursuant to A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Insolvency Event means the appointment of an administrator, appointment of a liquidator, appointment of a provisional liquidator, appointment of a controller (including any receiver or receiver and manager), insolvency, bankruptcy, winding up or any event analogous to these events.

Intellectual Property means all intellectual and industrial property rights, including trade marks, copyright (including future copyright), inventions, patents, designs, circuits and other eligible layouts, database rights, including any application or right to apply for registration of any of these rights.

Law means:
(a) legislation, including regulations, determinations, by-laws, declarations, ministerial directions and other subordinate legislation;

(b) common law;

(c) requirements issued by or authorisations required by any government, governmental, semi-governmental, administrative, fiscal or judicial body, department, commission or any person responsible for administering any law in force in Australia;

(d) mandatory codes, standards and guidelines; and

(e) writ, order, injunction or judgment.

services means the services set out in the Order and includes any deliverable resulting from a service;

‘us’, ‘we’ or ‘our’ means Racing and Wagering Western Australia ABN 21 347 055 603;

‘you’ or ‘your’ means the supplier of goods and/or services as set out in the Order.

24 INTERPRETATION

In these Standard Terms:

(a) a reference to “goods or services” is to be read as “goods or services, or both of them, as applicable”;

(b) the singular includes the plural and the plural includes the singular;

(c) a reference to a clause or party is a reference to a clause of, and a party to, the Order;

(d) the words ‘include’, ‘includes’ and ‘including’ and similar expressions are not words of limitation; and

(e) Part 1F of the Civil Liability Act 2002 (WA) does not apply.