Hawaiian Purchase Order Terms and Conditions

HAWAIIAN PURCHASE ORDER TERMS AND CONDITIONS
(Supply of Goods and/or Services)

1. Interpretation
1.1 Definitions
“Authority” means any government department, local government council, government or statutory authority or other body which has a right to impose a requirement or whose consent is required with respect to any matter the subject of these Terms and Conditions.

“CCA” means the Construction Contracts Act 2004 (WA) as amended and includes all regulations to the CCA.

“Claim” means any claim, action, suit, demand, proceeding, notice, litigation, investigation, or judgment whether based in contract, tort, under statute or otherwise.

“Confidential Information” means all information which is not in the public domain and is reasonably regarded by Hawaiian as confidential relating in any way to Hawaiian which the Supplier is or becomes aware of in the course of providing the Goods and/or Services, regardless of whether acquired or developed by Hawaiian, the Supplier or a third party.

“Date of Delivery” means the date for delivery of the Goods and/or performance of the Services stated in the Purchase Order.

“Defect” means any part of the Goods or Services that do not conform with clause 10.

“Defect Liability Period” means 12 months from the Delivery Date.

“Delivery Date” means the date, dates or period specified in the Purchase Order but if a change of the Delivery Date is directed by Hawaiian, it means the date resulting therefrom.

“Delivery Point” means the address to which the Goods and Services are to be delivered as specified in the Purchase Order.

“Encumbrances” means any restrictions, conditions, covenants, liens, charges, mortgages, security interests, claims or encumbrances of any nature.

“Goods” means the goods described in the Purchase Order.

“Hawaiian” means all Hawaiian managed Properties and entities:

• Parmelia House (Australian City Properties Pty Ltd (ABN 77 008 697 961));
• Hawaiian’s Bassendean (Hawaiian Investments Pty Ltd as trustee for Hawaiian Trust (ABN 79 686 335 180));
• Hawaiian’s Melville (Hyde Park Management Ltd (ABN 63 008 698 708));
• Duncraig Shopping Centre (Duncraig SC Holdings Pty Ltd (ABN 12 661 496 957));
• Hawaiian’s Noranda (Hawaiian Investments Pty Ltd as trustee for Hawaiian Trust (ABN 79 686 335 180));
• Hawaiian’s Park Centre (Oahu Property Management Pty Ltd as trustee for Oahu Property Trust (ABN 53 933 137 322));
• Hawaiian’s Mezz (Hyde Park Management Ltd (ABN 63 008 698 708));
• Claremont Quarter (SPB (Australia) Pty Ltd (ABN 95 071 334 435) as bare trustee of the Seashy Trust for the benefit of Friendly Target Sdn Bhd (ABN 75 735 936 467) and Australian City Properties Pty Ltd (ABN 77 008 697 961));
• The Mantle (Oahu Property Management Pty Ltd as trustee for Oahu Property Trust (ABN 53 933 137 322));
• Sunshine Harvester (The Sunshine Harvester Works Pty Ltd (ABN 55 161 944 565));
• Hawaiian’s Forrestfield (Hyde Park Management Ltd (ABN 63 008 698 708));
• Newpark Shopping Centre (Hawaiian Investments Pty Ltd as trustee for Hawaiian Trust (ABN 79 686 335 180));
• Coles Express Girrawheen (Hawaiian Investments Pty Ltd as trustee for Hawaiian Trust (ABN 79 686 335 180))
• Darling Ridge Shopping Centre (DRSC Holdings Pty Ltd (ABN14 661 496 966));
• Hillarys by Hawaiian (Hillarys SC Holdings Pty (ABN 40 661 496 699));
• Balcatta Warehouse (Hyde Park Management Ltd (ABN 63 008 698 708));
• The Healing Tree (Oahu Property Management Pty Ltd as trustee for Oahu Property Trust (ABN 53 933 137 322));
• 235 St Georges Terrace (235 St Georges Landowner Pty Ltd as trustee for 235 St Georges Landowning Trust (ABN 88 700 947 706) and Australian City Properties Pty Ltd (ABN 77 008 697 961));
• Lot 401 Miles Road (Bowman Investment Trust (ABN 51 531 837 862));
• 237 St Georges Terrace (Brookfield Bishops See St Georges House Landowner Pty Ltd as trustee for Brookfield Bishops See St Georges House Landowning Trust (ABN 75 597 390 806) and Australian City Properties Pty Ltd (ABN 77 008 697 961));
• Bishops House (Brookfield Bishops See Bishops House Landowner Pty Ltd as trustee for Brookfield Bishops See Bishops House Landowning Trust (ABN 30 584 991 707) and Australian City Properties Pty Ltd (ABN 77 008 697 961)
• 21 Bayview Terrace (SPB (Australia) Pty Ltd (ABN 95 071 334 435) as bare trustee of the Seashy Trust for the benefit of Friendly Target Sdn Bhd (ABN 75 735 936 467) and Australian City Properties Pty Ltd (ABN 77 008 697 961));
• 7 Bayview Terrace (SPB (Australia) Pty Ltd (ABN 95 071 334 435) as bare trustee of the Seashy Trust for the benefit of Friendly Target Sdn Bhd (ABN 75 735 936 467) and Australian City Properties Pty Ltd (ABN 77 008 697 961));
• Cable Beach Club Resort and Spa (Hyde Park Management Ltd (ABN 63 008 698 708));
• Town Beach Club (Hyde Park Management Ltd (ABN 63 008 698 708)); and
• 104 Forrest Street (Oahu Property Management Pty Ltd as trustee for Oahu Property Trust (ABN 53 933 137 322).

“Hawaiian’s Representative” means the person or party specified as such in the Purchase Order or the representative of Hawaiian appointed as its agent to carry out duties and functions pursuant to these Terms and Conditions.

“Indemnified Parties” are Hawaiian and its directors, officers, employees, contractors (other than the Supplier) and agents and related entities (as defined in the Corporations Act 2001 (Cth)).

“Intellectual Property” means any intellectual or industrial property whether protected by statute, at common law or in equity, including without limitation any patent, invention, copyright, design (whether or not registrable), trade secret, moral right, circuit layout, design or right in relation to circuit layouts, right to Confidential Information, technical information, processes, techniques and know-how.

“Legislation” means any act, ordinance, regulation, by-law, order, award or proclamation governing or affecting the purchase of the Goods and/or the provision of the Services.

“Modern Slavery” means slavery, servitude, forced labour, trafficking in persons (including orphanage trafficking of children), forced marriage, child labour, debt bondage and other slavery-like practices as defined in the Modern Slavery Laws.

“Modern Slavery Laws” means the Modern Slavery Act 2018 (Cth), the Modern Slavery Act 2018 (NSW), Divisions 270 and 271 of the Criminal Code 1995 (Cth), and any other anti-Modern Slavery laws or regulations in force in Australia.

“Modern Slavery Offence” means any offence set out in the Modern Slavery Laws, any conduct which would constitute Modern Slavery under the Modern Slavery Laws, and any other conduct or practices which amount to an offence under any of the Modern Slavery Laws.

“Price” means the amount specified in the Purchase Order for the provision of any Goods and/or Services.

“Purchase Order” means the document issued by Hawaiian to the Supplier in respect of the supply and delivery of the Goods and/or Services.

“Rate” means the rate for the provision of any Goods and/or Services specified in the Purchase Order.

“Remuneration” means the Price specified in the Purchase Order or, if the Goods and/or Services are being supplied at Rates, the total of the quantity of Goods and/or Services provided, multiplied by the Rate.

“Scope of Services” means the activities described in the Purchase Order.

“Services” means the services described in the Purchase Order.

“Services Term” means the period set out in the Purchase Order for providing the Services.

“Site” means the site or premises specified in the Purchase Order.

“Special Conditions” means any terms and conditions (if any) set out in the Purchase Order which are incorporated into and form part of these Terms and Conditions pursuant to clause 24.

“Specification” means the specification set out in the Purchase Order.

“Supplier” means the person or party supplying the Goods and/or Services to Hawaiian as specified in the Purchase Order.

“Supplier Personnel” means the employees, contractors, consultants and agents of the Supplier who are to provide the Goods and/or Services in accordance with these Terms and Conditions.

“Supplier’s Representative” means the person or party specified as such in the Purchase Order.

“Taxes” means all taxes, fees, levies, duties and charges imposed or assessed in respect of the Goods and/or Services under these Terms and Conditions by all local, state or national government Authorities including income tax (including withholding for prescribed payments or group tax), payroll tax, statutory superannuation contributions and workers’ compensation payments and contributions, sales tax, customs duty, excise tax, and stamp duty, but does not include GST.

“Tax Invoice” has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

“Third Party Warranties” means the warranties in respect of the Goods obtained by the Supplier from third party manufacturers or suppliers for the benefit of Hawaiian as described in clause 11.

“Warranties” means the warranties in respect of the Goods and Services as described in clause 10 of the Purchase Order.

1.2 Interpretation
(a) Reference to:

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

(ii) a person includes a body corporate; and

(iii) a party includes the party’s executives, administrators, successors and permitted assigns.

(b) If a party consists of more than one person these Terms and Conditions bind them jointly and each of them.
(c) Headings are for convenience only and do not affect the interpretation, or form part of these Terms and Conditions.
(d) The word “including” and similar expressions are not words of limitation.
(e) If an act must be done on a specified day which is not a business day, the act must be done on the next business day instead.
(f) A reference to $, AUD or dollar is to Australian currency.

2. Supply
The Supplier shall supply the Goods and/or Services to Hawaiian in accordance with these Terms and/or Conditions and further:
(a) shall only be authorised to supply Goods and/or Services to Hawaiian upon receipt of a Purchase Order;
(b) are encouraged to identify means to value add in relation to the supply of Goods and/or Services;
(c) these Terms and Conditions shall apply to the exclusion of any terms and conditions proposed by the Supplier, except to the extent that the Supplier’s proposed terms and conditions are accepted in writing by Hawaiian’s Representative;

(d) acknowledges that Hawaiian makes no warranties or representations as to the minimum quantities of, or requirements for Goods and/or Services by the issue of a Purchase Order;
(e) acknowledges that it shall provide the Services for the duration of the Services Term; and
(f) acknowledges that the supply of Goods and/or Services is non-exclusive and Hawaiian may engage other suppliers or contractors to supply the same.

3. Supply and Delivery of Goods
3.1 In consideration of payment by Hawaiian of the Remuneration, the Supplier shall:
(a) supply to Hawaiian at the Delivery Point the Goods free from any Encumbrances whatsoever;
(b) at its expense, deliver the Goods and all parts or components of the Goods and all operating and maintenance manuals (if any) to the Delivery Point on the Delivery Date. Time shall be of the essence; and
(c) ensure that the Goods delivered are accompanied by a cart note, delivery docket, packing slip, consignment note or like document which clearly describes the Goods (including quantity) and specifies the Purchase Order number, the Site, the name of Hawaiian’s Representative and any other information directed by Hawaiian’s Representative, in accordance with the Specification and these Terms and Conditions.
3.2 On the Date of Delivery the Supplier shall promptly unload the Goods as well as all parts or components of the Goods and provide all operating and maintenance manuals (if any) at the Delivery Point or such location as directed by Hawaiian’s Representative, or other person nominated by Hawaiian. Hawaiian will only take delivery of the Goods once they are fully unloaded.
3.3 Hawaiian may direct the Supplier to change the Delivery Date.
3.4 If the Supplier:
(a) is delayed in supplying the Goods by the Delivery Date by a cause beyond the reasonable control of the Supplier; and
(b) has given a written notice to Hawaiian within three Business Days of the start of the delay setting out details of the delay, its causes and the number of days extension claimed, the Delivery Date will be extended by a reasonable period as determined by Hawaiian (acting reasonably).
3.5 If compliance with any direction under clause 3.3, except those directions arising pursuant to the Supplier’s default, causes the Supplier to incur more or less costs than otherwise would have been incurred had the Supplier not been given the direction, the difference shall be assessed by Hawaiian (acting reasonably) and added to or deducted from the Remuneration.
3.6 If, for any reason not attributable to Hawaiian, the Supplier fails to deliver the Goods to the Delivery Point on the Delivery Date, the Supplier shall pay Hawaiian its actual damages from the day following the Delivery Date until the Date of Delivery (inclusive).
3.7 Unless otherwise specified in the Purchase Order, all deliveries must occur between 8.00 a.m. and 4.00 p.m. or as determined by Hawaiian (acting reasonably),
3.8 Hawaiian will not be obliged to pay for the Goods until the Goods have been accepted in accordance with clause 7.3.
4. Packaging and documentation
4.1 The Goods must be suitably packaged consistent with all applicable Legislation and with good industry practice and weather sealed:
(a) (as the case may be) for long distance sea, road or rail transport to the Delivery Point;
(b) to provide maximum protection to the Goods in handling and storage; and
(c) so as to ensure they are within Specification when delivered to the Delivery Point.
4.2 Any Goods containing oil, fuel or other flammable additives shall be drained of those additives (and tagged accordingly) prior to delivery to the Delivery Point and shall be made safe for transporting.
5. Inspection and audit of Goods and records
5.1 Hawaiian may:
(a) require the Supplier to send all certificates of analysis, documents relating to the identity and quality of Goods to an authorised purchasing representative of Hawaiian prior to arrival of the Goods at the Delivery Point; and
(b) audit the quality system of the Supplier and inspect the production of Goods at Supplier’s works using recognised auditing procedures (in which case the Supplier will provide such information and access necessary for Hawaiian’s inspection).

5.2 No inspection of the Goods by Hawaiian or action by Hawaiian under clause 5.1 in any way alters the Supplier’s responsibility to comply with its obligations under these Terms and Conditions.
5.3 When requested by Hawaiian’s Representative (acting reasonably), the Supplier will issue to Hawaiian regular reports on the progress of the manufacture or procurement for supply of the Goods in the form approved by Hawaiian.
5.4 The Supplier will maintain its records relating to the Purchase Order and the supply of the Goods and/or Services for a period that is consistent with good industry practice and will make these available for inspection by Hawaiian when and where reasonably required by Hawaiian.
6. Ownership and risk
6.1 Ownership and title in the Goods will pass from the Supplier to Hawaiian free of any Encumbrances on:
(a) delivery of the Goods in accordance with clause 3; or
(b) full payment for the Goods by Hawaiian, whichever occurs earlier.
6.2 The Supplier bears the risk of:
(a) any loss or damage to the Goods until they are delivered and accepted by Hawaiian in accordance with clause 7; and
(b) where the Services involve refurbishment or repair of any goods owned by Hawaiian, any loss or damage to such equipment or goods while in the control of the Supplier.
7. Acceptance and Rejection of Goods
7.1 Without prejudice and in addition to any rights that Hawaiian has under clause 15 hereof, Hawaiian may, within 7 days from the Delivery Date, reject all or any of the Goods delivered to Hawaiian where Hawaiian determines, acting reasonably, in its absolute discretion that the:
(a) Goods contain a Defect;
(b) Goods are unfit for use;
(c) Goods do not comply with the requirements of the Terms and Conditions; or
(d) packaging of the Goods is damaged or defective to an extent that damage to the Goods is possible.
7.2 To the extent that Hawaiian rejects all or any Goods under clause 7.1:
(a) the Supplier’s obligation to deliver those Goods will be treated as having not been satisfied;
(b) ownership, title and risk in the rejected Goods will remain with, or revert to, the Supplier as the case may be;
(c) the Supplier must not replace the rejected Goods unless it receives instructions from Hawaiian to do so;
(d) any monies paid by Hawaiian to the Supplier in respect of rejected Goods prior to their being rejected must be repaid immediately; and
(e) the Supplier must collect the Goods at its own cost and at a time convenient to Hawaiian (acting reasonably).
Without prejudice to the general application of clause 8.7, all monies paid by Hawaiian to the Supplier prior to inspection and acceptance of the Goods will be deemed to have been paid on account and be conditional upon, and subject to, the Goods being free of any defects and acceptance of the Goods.
7.3 Hawaiian will have accepted the Goods when:
(a) Hawaiian has had a reasonable opportunity to examine the Goods after delivery and has not rejected the Goods pursuant to clause 7.1; and
(b) Hawaiian:
(i) indicates to the Supplier in writing that it has accepted the Goods; or
(ii) when Hawaiian pays the total Remuneration for the Goods pursuant to clause 8.
Unless otherwise agreed by Hawaiian, a reasonable opportunity to examine the Goods after delivery will include a period of not less than 10 business days.
8. Payment
8.1 In consideration of the Supplier providing the Goods and/or Services, and subject to clauses 8.4, 8.7 and 26 hereof, Hawaiian shall pay the Remuneration to the Supplier.
8.2 Payments made by Hawaiian in respect of the Remuneration shall be made by cheque to be delivered to the Supplier at the address nominated in the Purchase Order or to the Supplier’s nominated bank account.
8.3 Subject to clause 9 hereof, the Supplier acknowledges that the Remuneration represents the total amount payable by Hawaiian to it in respect of the Goods and/or Services and acknowledges that if it incurs additional costs, it will not be entitled to any increase in the said amount or otherwise to reimbursement or payment of any additional costs.
8.4 The Supplier shall by the 10th day of the month following the month in which the Goods and/or Services were provided and accepted in accordance with clause 7, deliver to Hawaiian a Tax Invoice for Goods and/or Services provided. If the Purchase order provides for payment of the Remuneration by way of instalments or milestones, the Supplier may submit a Tax Invoice for the relevant instalment or milestone payment at the times set out in the Purchase Order.
Each Tax Invoice must set out:
(a) the description of the Goods and/or Services provided to Hawaiian;
(b) the Remuneration claimed and appropriate GST;
(c) the Purchase Order number issued by Hawaiian in respect of the Goods and/or Services;
(d) the name of the Site;
(e) the name of Hawaiian’s Representative in respect of the relevant Purchase Order; and
(f) include any other information directed by Hawaiian’s Representative,
and be addressed and forwarded to Hawaiian’s Accounts Payable department.
8.5 If Hawaiian disputes any amount claimed in a Tax Invoice, Hawaiian must within 14 days of receipt of the Tax Invoice advise the Supplier in writing of the amount that Hawaiian disputes is payable and the reasons why the amount is
disputed. Hawaiian will not be required to pay the disputed amount until the dispute is resolved but will act reasonably in resolving the dispute as soon as practicable.
8.6 Subject to clauses 8.5, 8.8 and 26, Hawaiian shall within 30 days from the date on which a Tax Invoice is submitted in accordance with clause 8.4 pay to the Supplier the amount of that Tax Invoice.
8.7 The payment by Hawaiian of any amount will not be considered as an acceptance of Hawaiian’s liability to pay the Supplier and all payments by Hawaiian are on account only.
8.8 If the Purchase Order specifies retention then Hawaiian will be entitled to deduct from the amount payable to the Supplier the retention specified in the Purchase Order. Hawaiian will pay any retention at the time specified in the Purchase Order.
8.9 In the alternative to retention in accordance with clause 8.8, Hawaiian may accept or the Purchase Order may require the Supplier to provide security which must be in the form of an unconditional banker’s undertaking acceptable to Hawaiian (acting reasonably).
8.10 Any retention under clause 8.8 or security under clause 8.9 may be used by Hawaiian if the Supplier fails to comply with its obligations.
8.11 Hawaiian reserves the right to withhold payment until all Goods have been accepted by Hawaiian or where there is any Claim by Hawaiian against the Supplier.
9. Variations
Subject to clause 19, Hawaiian may vary the Goods and/or Services to be supplied under a Purchase Order by issuing a further Purchase Order.
10. Warranties
10.1 The Supplier warrants to Hawaiian that in relation to the Goods and Services and each part of the Goods and Services:
(a) the Goods and all components or parts of the Goods are free from any Encumbrances;
(b) the Goods and all components or parts of the Goods are new and to the quality and standard stipulated by these Terms and Conditions and of merchantable quality and free from defects in materials, workmanship and design and are fit for their intended purpose;
(c) all operating and maintenance manuals supplied with the Goods in accordance with clause 3.1 (if any) are correct, complete and fit for their intended purpose;
(d) the Goods meet all the criteria of the Specification and all applicable Australian standards and laws, if any;
(e) the Services will be performed by appropriately qualified, skilled and experienced personnel;
(f) the Services must be performed and the Goods manufactured to a standard of case, skill and diligence that would normally be expected of a reputable and competent organisation providing goods and services similar to the Goods and Services; and
(g) there will be no Defect or failure or malfunction of the Goods and Services (except to the extent attributable to wrongful use or failure to maintain) during the Defect Liability Period.
10.2 The warranties provided by the Supplier in this clause 10 and any Warranties provided in the Purchase Order are in addition to and do not derogate from any warranty implied by law in respect of the Goods and/or Services.
10.3 Hawaiian is not liable to pay the Supplier for any Goods or Services that contain Defects until the Defects have been adequately remedied.
10.4 At the election of Hawaiian, and at no cost to Hawaiian, the Supplier will at its own cost and expense, as soon as reasonably practicable upon receipt of notice that Goods or Services contain Defects, either re perform, replace or repair and make good the Goods or Services or part thereof found to be defective.

10.5 With respect of any remedial work of Defects performed by the Supplier under this clause 10, the Defects Liability Period will be extended for a period of 12 months from the date the remedial work is completed.
10.6 Hawaiian’s right to require remedial work of Defects is in addition to and not in lieu of any other remedies it may have at law or in equity.
10.7 The Supplier must ensure any warranty offered by the manufacturer of the Goods or part of them is enforceable by Hawaiian.
11. Third Party Warranties
Where the Goods or any materials, parts or components of the Goods supplied pursuant to these Terms and Conditions are manufactured or supplied by a party or parties other than the Supplier, the Supplier must procure from the parties the best reasonably obtainable warranties in respect of the Goods or such materials, parts or components of the Goods that are manufactured by third parties and shall ensure that Hawaiian will have the benefit of those Third Party Warranties.
12. Supplier Obligations
12.1 The Supplier shall:
(a) supply, deliver and unload the Goods and all parts or components of the Goods and all operating and maintenance manuals, if any, in accordance with the Specification and these Terms and Conditions;
(b) carry out the Services in accordance with these Terms and Conditions;
(c) carry out the Services so as not to prejudice the Warranties or the Third Party Warranties;
(d) without prejudice to any other obligation under these Terms and Conditions, immediately notify Hawaiian if it is not going to be able to provide the Services strictly in accordance with these Terms and Conditions;
(e) indemnify Hawaiian against any cost incurred by Hawaiian by reason of the Supplier’s failure to advise in accordance with clause 12.1(d) (except to the extent that such failure is caused by the negligence or deliberate act of Hawaiian);
(f) comply at all times with any of Hawaiian’s Health, Safety, Environment System, including but not limited to:
(i) completing any checklists required by Hawaiian’s Representative; and
(ii) attending meetings as reasonably required by Hawaiian’s Representative;
(g) ensure that the Services are:
(i) executed and completed in a proper and workmanlike manner with due skill, care and diligence, having regard to the nature of the Services;
(ii) carried out by personnel who are suitably qualified, skilled and experienced and, where required, have the accreditation under the legislative requirements of any Legislation to carry out the Services; and
(iii) executed in a timely manner consistent with Hawaiian’s operating and other requirements;
(h) if required by Hawaiian, provide the Services in accordance with the plans and any other plan or standard reasonably required by Hawaiian;
(i) not, without Hawaiian’s prior written approval, engage in any publicity relating to the provision of Goods and/or Services pursuant to these Terms and Conditions or use Hawaiian’s name, logo, trade name, mark, symbol or insignia in any manner whatsoever;
(j) if required by Hawaiian at its expense:
(i) assign to Hawaiian such rights, if any, that the Supplier has against a third-party manufacturer or supplier; or
(ii) pursue any reasonable claim against that manufacturer or supplier; and
(k) comply with any reasonable direction given by Hawaiian, or Hawaiian’s Representative and ensure that all its employees, contractors and agents comply with any such direction given by the same.
12.2 The Supplier shall ensure that where applicable the Services are performed, at a minimum, in accordance with best industry practice, the plans relevant to Australian or international standards, all relevant Legislation and any code of practice which the Parties agree should have application to the provision of the Services and in accordance with the Warranties.
12.3 The Supplier acknowledges that the Services provided by it to Hawaiian pursuant to the Purchase Order and these Terms and Conditions may be critical to Hawaiian and its operations and agrees that it may not withhold the provision of Services due to any dispute arising from or related to the Purchase Order or these Terms and Conditions unless the Services are terminated and all obligations of the handover by the Supplier have been performed. In addition, the Parties are to continue to perform all other obligations pursuant to these Terms and Conditions except for any obligation which cannot be performed because of the dispute.
12.4 During the Services Term:
(a) the Supplier shall at its cost provide sufficient tools and equipment to enable the Supplier to effectively carry out the Services in accordance with these Terms and Conditions;
(b) the Supplier will be responsible for repairing, maintaining, replacing or upgrading such tools and equipment, as required to enable it to effectively provide the Services in accordance with these Terms and Conditions; and

(c) risk in the tools and equipment shall remain with the Supplier at all times.
12.5 The Supplier will ensure that it has all necessary accreditations (including on an interim basis) to perform its obligations pursuant to these Terms and Conditions, including any accreditation required under Legislation and shall, upon request of Hawaiian, provide copies of such accreditations (including any accreditations referred to in clause 12.1(h)) to Hawaiian.
12.6 The Supplier will:
(a) manage any industrial relations issues which may arise in relation to Supplier Personnel without impacting on the level of Services required pursuant to these Terms and Conditions;
(b) prior to entering into any enterprise bargaining agreement with any Supplier Personnel, provide Hawaiian with an opportunity to review and comment on the enterprise bargaining agreement insofar as it may impact on the provision of the Services;
(c) keep Hawaiian fully and promptly informed of industrial relations problems or issues which affect or are likely to affect the performance of the Services; and
(d) ensure that the following information is available at all times for inspection by Hawaiian in respect of each
individual Supplier Personnel:
(i) roster details;
(ii) medical clearance certificates (including drug clearance); and
(iii) any other information reasonably requested by Hawaiian’s Representative.
12.7 When providing the Services:
(a) The Supplier must:
(i) perform the Services in a manner so as to avoid environmental harm, pollution or contamination of or outside the Site; and
(ii) ensure that each of its Supplier Personnel also complies with the requirements under clause 12.7(a)(i).
(b) The Supplier is responsible for, and must make good, any environmental harm, pollution or contamination caused by the performance of the Services including any environmental harm, pollution or contamination of or outside of the Site.
(c) The Supplier must:
(i) clean up any pollution or contamination caused during the performance of the Services; and
(ii) comply with all directions of Hawaiian and any Authority regarding cleaning up pollution or contamination.
(d) The Supplier must indemnify Hawaiian against:
(i) any liability to or claim by a third party; and
(ii) all costs, penalties, fines, losses and damages suffered or incurred by Hawaiian, arising out of or in connection with any failure by the Supplier to comply with the requirements of this clause 12.7 or environmental harm caused by the performance of the Services.
12.8 The Supplier shall and shall ensure that Supplier Personnel fully cooperate with Hawaiian in any investigation conducted by Hawaiian following any safety incident on a Site.
13. Assignment
13.1 Hawaiian may assign or transfer all or any part of its rights or obligations pursuant to these Terms and Conditions.
13.2 The Supplier shall not assign any part of any purchase order under these Terms and Conditions or any payment or any other right, benefit or interest thereunder without prior written approval from Hawaiian.
14. Sub-Contracting
14.1 The Supplier must not sub-contract the supply, delivery or unloading of the Goods or the whole or any part of the Services without the prior written approval of Hawaiian.
14.2 Hawaiian may grant its approval subject to the condition that the Supplier must submit to Hawaiian for its approval each agreement, arrangement or understanding for the subcontracting of the supply, delivery or unloading of the Goods or the whole or any part of the Services. In giving written approval, Hawaiian may impose such terms and conditions as it thinks fit.
15. Indemnity
15.1 The Supplier shall be liable for and shall indemnify the Indemnified Parties against:
(a) all claims, demands, losses, actions, penalties, fines, damages, costs (including legal costs), liabilities and expenses arising at common law and under statute suffered or incurred by the Indemnified Parties that are in any way connected with any act or omission of the Supplier, Supplier Personnel or its agents or subcontractors, including any breach of these Terms and Conditions or any negligent, wilful, reckless or unlawful act or omission, whether wholly or in part, directly or indirectly related to the Services;
(b) loss of or damage to the property of the Purchaser arising out of, or that is in any way connected with, the Services; and
(c) liability to or a Claim by a third party arising out of, or that is in any way connected with the Services.
15.2 The Supplier’s liability to indemnify the Purchaser under clause 15.1 will be reduced proportionately to the extent that an act or omission of the Purchaser has caused or contributed to the Supplier’s liability.
15.3 The amount of the Supplier’s liability under clause 15.1 is a debt due and payable from the Supplier to the Purchaser.
16. Insurance
16.1 The Supplier will effect and maintain the following insurance policies:
(a) workers’ compensation and employers’ liability insurance covering all claims and liabilities in respect of any statute and at common law for the death of or injury to any person employed by, or who is deemed under statute to be a worker or any sub-contractor of the Supplier in connection with the Services;
(b) general public and products liability insurance covering liability to any person for death, bodily injury, loss of or damage to property and consequential loss with a limit of liability of not less than $20,000,000 for any one occurrence;
(c) motor vehicle insurance as required by Hawaiian (acting reasonably);
(d) if required by Hawaiian, and if the Supplier’s Services involve any professional services (including design), professional indemnity insurance; and
(e) if required by Hawaiian (acting reasonably), insurance of Goods for their replacement value until delivery of the Goods to the Delivery Point.
16.2 The Supplier must ensure that, except where prohibited by law or to the extent that the Indemnified Parties do not have a relevant insurable interest, each insurance policy referred to in clause 16 must:
(a) except for the professional indemnity insurance policy and the motor vehicle insurance policy, cover the Indemnified Parties, other than contractors who are not related entities (as defined in section 9 of the Corporations Act 2001 (Cth)) of Hawaiian; the Supplier and the Supplier’s subcontractors engaged from time to time in connection with the Services;
(b) covers the Supplier and the Supplier’s subcontractors engaged from time to time in connection with the Services;
(c) in relation to the professional indemnity insurance policy and the motor vehicle insurance policy, cover the Supplier in relation to the Services;
(d) where reasonably possible, with a waiver of subrogation clause in which the insurer agrees not to be subrogated to the rights of any insured or person to whom the benefit of the contract of insurance extends, against any other party so named;
(e) with a cross-liabilities clause in which the insurer agrees that the policy applies as if a separate policy was issued to each named insured (with the exception of limits of liability); and
(f) where reasonably possible, with a severability and non-imputation stipulation, so that a breach of any term of the policy or of the duty of disclosure by one insured will not disentitle other named insureds or noted interest beneficiaries to coverage.
16.3 The Supplier must:
(a) observe and perform all terms and conditions of such insurances and pay all deductibles;
(b) ensure Hawaiian is not prejudiced by any breach of the conditions of the insurances by the Supplier;
(c) on request provide details of the insurances and evidence of currency and premium payment to Hawaiian at any time (including prior to the issue of a Purchase Order);
(d) ensure that all insurances arranged by the Supplier are effected with reputable financially secure insurers approved by Hawaiian and that all insurances are on terms acceptable to Hawaiian;
(e) ensure that Hawaiian is named as an insured under any policy taken out pursuant to clause 16.1(b) of these Terms and Conditions; and
(f) the Contractor must notify the Principal as soon as practicable in the event that a claim is made against an insurance policy required to be effected under this Purchase Order.
16.4 If the Supplier fails to take out any of the insurances required under this clause, Hawaiian may (acting reasonably) take out and maintain such insurances and deduct the costs from any moneys due to the Supplier or treat the failure to insure
as a breach under clause 19.1(a).
16.5 Where the Supplier has been permitted to sub- contract under the Purchase Order, the Supplier shall ensure that the subcontractor obtains the insurances specified in and otherwise complies with the provisions of this clause. Such subcontract will not relieve the Supplier of its own obligations to fulfil any provisions of this clause.
16.6 No provision in this clause shall limit the Supplier’s liability under clause 15.
17. Confidential Information
The Supplier covenants that it will hold all Confidential Information in confidence for Hawaiian and will not directly or indirectly at any time during the supply of the Goods or the provision of the Services, or after the termination or expiry of the Purchase Order or these Terms and Conditions use, and will not permit any Supplier Personnel to use, any Confidential Information or disclose, or permit any Supplier Personnel to disclose, any Confidential Information to any third party except if the use or disclosure:
(a) is for the purpose of providing the Goods and/or Services;
(b) relates to information already within the public domain, other than by virtue of a breach of this clause by the Supplier or any Supplier Personnel;
(c) is required by Legislation or by any competent Authority having jurisdiction over a Party; or
(d) is made with the prior written consent of Hawaiian.
18. Intellectual Property
18.1 The Supplier warrants that, unless otherwise provided in these Terms and Conditions, the Goods and/or Services shall not infringe any Intellectual Property rights of any third party. The Supplier shall indemnify and hold Hawaiian harmless
18.2 against all loss, damage, costs, claims and expenses (including without limitation reasonable legal costs) arising out of or in connection with any claim that the Goods and/or Services infringe the Intellectual Property rights of a third party.
18.3 The Supplier grants Hawaiian a royalty-free, non-exclusive, transferable to a subsequent owner only, perpetual licence to use the intellectual property rights associated with the Goods and any documentation provided pursuant to these Terms and Conditions for the installation, use, support, repair, maintenance or alteration of the Goods by or on behalf of Hawaiian.
19. Termination
19.1 If any of the following occur (each of which will be a fundamental breach of these Terms and Conditions) then, without prejudice to any other right or remedy which Hawaiian may have against the Supplier for breach or non-observance of these Terms and Conditions, Hawaiian may terminate the supply of the Goods and/or Services in whole or in part immediately by notice in writing where the Supplier:
(a) breaches or fails to observe or perform any of the Terms and Conditions and such breach, non- observance or non- performance is not remedied within 14 days after Hawaiian gives written notice to remedy the same;
(b) goes into liquidation or becomes bankrupt or enters into any composition or arrangements with or assignment for the benefit of creditors;
(c) refuses or neglects to comply with any reasonable lawful order or direction given by Hawaiian relating to the supply of the Goods or the provision of the Services and such refusal or neglect is not remedied within 14 days after Hawaiian gives written notice of the same; or
(d) the Supplier, or any of its directors, is convicted of a criminal offence.
19.2 Notwithstanding any other provision in these Terms and Conditions, Hawaiian may, subject to clause 19.3 terminate in whole or in part the supply of Goods and/or Services at its absolute discretion on giving the Supplier one month’s written notice. If the supply of Goods and/or Services are terminated under this clause 19.2 the Supplier will be entitled to payment up to the effective date of termination, and any amount payable under clause 19.3, but will not be entitled to any other payment.
19.3 If the Supplier has incurred costs and entered into binding legal commitments in anticipation of the continued supply of Goods and/or Services and the provision of the Goods and/or Services is terminated under clause 19.2, in addition to any amount payable under clause 19.2, the Supplier will also be entitled to reimbursement of any unavoidable costs for labour and/or material incurred by the Supplier in anticipation of continuation of supply of Goods and/or Services. If payment is made by Hawaiian under this clause 19.2 for any goods, materials, components, consumables or parts, such items shall (at Hawaiian’s option) become the property of Hawaiian and the Supplier must forthwith deliver up such items to Hawaiian.
20. Notices
Any notice, demand, request or other communication to be given pursuant to the Purchase Order or these Terms and Conditions shall be in writing signed by the party giving the notice or its agent and may be served by facsimile, by being delivered or by being sent by prepaid post to the other party’s address as specified in the Purchase Order.
21. Waiver
Hawaiian’s failure to require remedy of any default or breach of these Terms and Conditions to be observed by the Supplier or to require compliance by the Supplier with any provision of these Terms and Conditions shall not be a waiver of that term or condition. Provisions of these Terms and Conditions and Purchase Order can only be varied in writing signed by the Parties.
22. Provision of Services after Term

Subject to clause 23, if after the expiration of the Services Term, the Supplier continues to provide the Services, the Supplier agrees that the Services shall be provided on and subject to these Terms and Conditions.
23. Further Services Term
23.1 The Supplier must extend these Terms and Conditions to provide the Services for the further term stated in the Purchase Order if Hawaiian serves a notice to that effect during the Services Term.
23.2 Any extension of these Terms and Conditions in accordance with clause 23.1 starts on the date immediately after the expiry of the Services Term and is on the same terms and conditions as contained in these Terms and Conditions, as far as they apply to the supply of Services.
23.3 If these Terms and Conditions are extended under clause 23.1, the Remuneration will be adjusted by the increase in CPI from the commencement of the Services Term (or where the Remuneration has been adjusted during the Services Term,from the date of such adjustment) to the date of commencement of the further term.
24. Special Conditions
All (if any) of the Special Conditions in the Purchase Order shall be deemed to be incorporated in these Terms and Conditions. The Special Conditions shall prevail to the extent of any inconsistency between any provision in these Terms and Conditions and the Special Conditions.
25. Governing Law
The laws applying in the State of Western Australia shall apply to these Terms and Conditions and the Parties are subject to the non-exclusive jurisdiction of the Courts of Western Australia and Courts having jurisdiction to hear appeals therefrom.
26. Set Off
Hawaiian may deduct from monies otherwise due to the Supplier any debt or other monies due from the Supplier or claim to money which Hawaiian may have against the Supplier, whether for damages or otherwise relating to the Goods and/or Services.
27. Dispute Resolution
27.1 Any dispute which arises between Hawaiian and the Supplier out of or in connection with these Terms and Conditions must be dealt with in accordance with this clause 27.
27.2 A Party may refer a dispute to the other Party for resolution, by serving notice in writing upon the person named in the Purchase Order as that Party’s Representative on behalf of the other Party. The notice must specify:
(a) the dispute;
(b) particulars of the Party’s reasons for being dissatisfied; and
(c) the position which the Party believes is correct, including the facts and provisions of these Terms and Conditions supporting its position.
27.3 Within 10 business days of a party receiving a notice of dispute, the parties shall confer at least once to resolve the dispute or to agree on methods of doing so. At every such conference each party shall be represented by a person having authority to agree to such resolution or methods. All aspects of every such conference except the fact of occurrence shall be privileged.
27.4 If the Parties are unable to resolve the dispute referred to in clause 27.2 within 20 business days of its referral, either Party may commence litigation to resolve that dispute.
27.5 Notwithstanding the existence of a dispute between the Parties and subject to section 42 of the CCA:
(a) the Supplier must continue to supply the Goods and/or Services without delay pursuant to these Terms and Conditions; and
(b) both Parties must perform their other obligations under these Terms and Conditions.
27.6 This clause survives termination of these Terms and Conditions.
28. Costs and Taxes
28.1 The Supplier will meet the cost of any duty, fines or penalties assessed as payable with respect to the Purchase Order and these Terms and Conditions.
28.2 The Supplier is and remains liable for payment of any Taxes. If any Tax is imposed, the Supplier must pay the full amount to the relevant Authority and indemnifies Hawaiian against any failure to do so. If any exemptions, reductions, allowances, rebates or other privileges in relation to Taxes may be available to the Supplier or Hawaiian, the Supplier shall adjust any payments due to reflect any such savings or refunds (including interest awarded) to the maximum allowable extent.
28.3 Hawaiian may deduct from the whole or part of payments due to the Supplier any Taxes which Hawaiian is required to withhold or deduct by any taxing Authority.
29. GST
29.1 Words or expressions used in this clause which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or, if not so defined, then which are defined in the Competition and Consumer Act 2010 (Cth), have the same
meaning in this clause.
29.2 Any consideration to be paid or provided for a supply made under or in connection with these Terms and Conditions, unless specifically described in these Terms and Conditions as “GST inclusive”, does not include an amount on account
of GST.
29.3 Despite any other provision in these Terms and Conditions, if a Supplier makes a supply under or in connection with these Terms and Conditions which GST is imposed (not being a supply which has been described as “GST inclusive”):
(a) the consideration payable or to be provided for that supply under these Terms and Conditions but for the application of this clause (“GST exclusive consideration”) is increased by, and the recipient of the supply (“Recipient”) must also pay to the Supplier, an amount equal to the GST payable by the Supplier on that supply; and
(b) the amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided, provided that the Supplier has provided the Recipient with a Tax Invoice.
29.4 If a payment to a party under these Terms and Conditions is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be equal to the net amount incurred by the Party being reimbursed or indemnified, namely the total amount paid in relation to the loss, cost or expense less any input tax credit entitlements, plus any GST payable.
30. Entire Agreement
These Terms and Conditions supersede all prior agreements, arrangements and undertakings between the Parties and constitute the entire agreement between the Parties in relation to the supply of the Goods and/or Services.
31. Amendment or Variation
No amendment or variation to these Terms and Conditions nor any additional rights or obligations created in relation to the subject matter of these Terms and Conditions shall be of any force or effect unless made expressly in writing and signed by a duly authorised officer of Hawaiian and a duly authorised representative of the Supplier.
32. Relationship of Parties
These Terms and Conditions do not create a partnership, joint venture or fiduciary relationship between Hawaiian and the Supplier.
33. Civil Liability Act
All of the provisions comprising Part 1F of the Civil Liability Act 2002 (WA) are hereby expressly excluded from application to these Terms and Conditions.
34. Corporate Social Responsibility
34.1 The Supplier acknowledges that Hawaiian has obligations to comply with Modern Slavery Laws, and represents and warrants to Hawaiian that, at the date of entering into the Agreement, the Supplier:
(a) has no knowledge of any Modern Slavery or Modern Slavery Offences currently occurring within its organisation or supply chain; and
(b) takes and will continue to take reasonable steps to identify the risk of, and prevent the occurrence of, Modern Slavery or Modern Slavery Offences within its organisation or supply chains.
34.2 Without limiting clause 34.1 above, the Supplier represents and warrants to Hawaiian that, in relation to the supply of the Goods and/or Services procured from or subcontracted or outsourced to third parties for the provision of the Goods and/or Services under the Agreement, the Supplier has taken, or will, prior to procuring, sub-contracting or outsourcing any such Goods and/or Services from or to a third party, take, and will continue through the Term of the Agreement to take all reasonable steps to confirm that such third party is not engaging in Modern Slavery or any Modern Slavery Offences.
34.3 The Supplier shall notify Hawaiian in writing as soon as practicable and no later than 10 business days upon becoming aware of, or has any suspicions of, any Modern Slavery or Modern Slavery Offences (or of any charges laid or orders made in relation to any Modern Slavery Offences) within its organisation or supply chain.
34.4 If requested by Hawaiian, the Supplier will, subject to any existing confidentiality requirements and any relevant law, take all reasonable steps to provide Hawaiian with any information, reports or documents in relation to any Modern Slavery, Modern Slavery Offences or any risk of Modern Slavery Offences within the Supplier’s organisation or supply chain, including the completion of a self-assessment questionnaire if required.
34.5 The Supplier warrants that it and its subcontractors:
(a) will comply with applicable Work Health and Safety legislation and Worksafe WA Codes of Practice;
(b) Worksafe WA Codes of Practice; and
(c) will not discriminate based on race, sex, marital or maternity status, class or caste status, religious or political beliefs, age or sexual orientation.
34.6 The Supplier shall provide to Hawaiian a copy of its diversity policy and warrants that it will comply with this policy for the duration of the Services Term.
35. Anti-bribery and Corruption
35.1 The Supplier warrants that and shall comply with all national and international anti-bribery regulations as well as applicable anti-corruption laws, regulations and standards. The Supplier shall not (either directly or indirectly) offer or promise to provide anything of value to improperly influence an official act or to secure an improper advantage in order to obtain or retain business.
35.2 The Supplier shall notify Hawaiian in writing as soon as practicable and no later than 10 business days upon becoming aware of, or has any specific suspicions of, a breach of this clause 35.
36. Hawaiian’s Contractor Management System
Induction and Access Requirements
The Supplier shall ensure that:
(a) The Supplier organises for their company to be registered on Hawaiian’s Contractor Management System, Rapid Global.
(b) The Supplier assigns administration within their company to maintain document compliance and personnel information on Hawaiian’s Rapid Global, this includes updating the system with the following:
(c) The Supplier completes the pre-qualification questionnaire in Hawaiian’s Rapid Global and uploads all required compliance documentation for approval by Hawaiian, including:
(i) Worker’s Compensation Insurance;
(ii) Public Liability Insurance;
(iii) Professional Indemnity Insurance (Consultants / Professional services);
(iv) Personal Injury Insurance (Sole Traders);
(v) company trade licenses (as applicable);
(vi) Safe Work Method Statements (SWMS); and
(vii) Safety Management Plan (Construction Project Principal Contractors)
(d) The Supplier does not commence any works on site prior to:
(i) Receiving email approval from Hawaiian’s Rapid Global that the supplier’s company has successfully registered as a contractor; and
(ii) The supplier’s worker(s) have completed Hawaiian’s Contractor Induction and worker registration in Rapid Global.
(e) The Supplier’s workers complete re-Induction at 12 month interval to maintain compliance in Hawaiian’s Rapid Global;
(f) The Supplier’s workers sign in prior to commencing work on site via the Rapid GO QR Code at the site management office / tenancy / Project work site, and complete the High-risk Work Questionnaire; and
(i) during the sign-in process or at any other time when the requirement for a high-risk work permit is identified, the Supplier’s Responsible Worker is to complete the Permit application,
(ii) the high-risk work must not commence until the permit has been approved by the Facility Manager according to the Rapid Global Permit process;
(g) Site access keys are only obtained according to the Traka Key-Safe access requirements and with approval from the Hawaiian site Operations Manager;
(i) all workers issued with a site access key are to always remain in control of the key,
(ii) prevent unauthorised access and use of the key, and
(iii) return the key to the key-safe before leaving site.
(h) any incident or accident involving injury to a person on site is to be reported to Hawaiian’s Representative/ Facility Manager on site;
(i) when working at a construction site, including tenancy fitout/defit, all Supplier workers carry a valid Construction Industry Safety Induction White/Blue card;
(j) when on site all Supplier Personnel wear effective Personal Protective Equipment for the risks they are exposed to, including steel toe-capped shoes and high-vis clothing;
(k) a register is available for hazardous substances brought to site, and
(i) The register is provided to Hawaiian’s representative upon request;
(ii) Workers have access to applicable Material Safety Data Sheets.
(l) all electrical equipment to be brought to site is in date for Testing and Tagging, Calibration, RCD and Emergency Stop requirements, as per the applicable Worksafe WA requirement.
(m) The Supplier shall make available to Hawaiian on request all tagging and calibration records in respect of any such electrical equipment.