Terms and Conditions

PURCHASE ORDER
1. Each accepted PO will create a separate legally binding agreement between OTHRC and the Supplier, being constituted by:
  1. the PO;
  2. these Terms and Conditions; and
  3. any document incorporated by reference into these Terms and Conditions, (together the Contract).
2. A PO shall be deemed to be accepted by the Supplier on the earlier of:
  1. the Supplier providing OTHRC with written acceptance of the PO; and
  2. any act by the Supplier consistent with fulfilling the PO, at which point, and on which date a Contract in respect of that PO shall come into existence.
3. If there is any conflict or inconsistency between the documents constituting the Contract, unless otherwise provided, the documents will rank in the order of precedence in which they are listed in clause 1.1.
4. OTHRC makes no warranty or representation to the Supplier as to minimum purchase or future purchase obligations.
5. The Supplier agrees that the supply of Goods and/or Services under this Contract is non-exclusive, and OTHRC may engage other suppliers for the supply of the same or similar Goods and/or Services.
TERM
1. This Contract will commence upon the Supplier’s acceptance of the PO (in accordance with clause 1.2), and will remain in full force, unless terminated earlier in accordance with these Terms and Conditions, or until the Supplier and OTHRC have completed all of their obligations under this Contract (Term).
SUPPLY OF GOODS (IF APPLICABLE)
1. If Goods are being supplied, the Supplier warrants that it has unencumbered title to the Goods and that the Goods:
  1. will be supplied in the quantity and quality set out in the PO;
  2. will be delivered to the Site/s stated in the PO or advised by OTHRC on/before the delivery date;
  3. conform to any description applied and any sample provided by the Supplier;
  4. are new (unless otherwise specified);
  5. are free from Defects in materials, manufacture, workmanship and installation;
  6. conform to any applicable Australian Standards or other standards stated in the PO;
  7. are of merchantable quality, and are fit for their intended purpose;
  8. if stated in the PO, will be installed correctly on or before the installation date; and
  9. are manufactured and supplied without infringing any third party’s IP Rights.
2. The Supplier must:
  1. comply with OTHRC’s reasonable directions and delivery instructions;
  2. provide material safety data sheets if dangerous goods/hazardous substances are being delivered;
  3. provide test evidence for the Goods if required; and
  4. ensure that OTHRC receives the full benefit of any manufacturer’s warranties in respect of the Goods.
3. If the Supplier cannot comply with any of its obligations under clauses 3.1 and 3.2, the Supplier must notify OTHRC in writing immediately.
4. OTHRC may inspect the Goods to determine whether to accept the Goods. Subject to clause 3.5, the Goods are deemed to be accepted unless OTHRC notifies the Supplier within 7 Calendar Days that it:
  1. does not accept (rejects) the Goods; and
  2. the reason for rejecting the Goods.
5. If the Goods are consumable products and the Goods are found to be Defective when first used, then OTHRC may reject the Goods, and clauses 5.3 to 5.5 may apply.
6. Title in the Goods passes to OTHRC upon the earlier of payment of the Price or OTHRC’s acceptance of the Goods (in accordance with clause 3.4). Risk in the Goods (if any) passes to OTHRC when the Goods are satisfactorily delivered to OTHRC and OTHRC Personnel take possession of the Goods. Risk in the Goods will revert to the Supplier if the Goods are rejected by OTHRC and/or if clause 5.3 applies.
SUPPLY OF SERVICES (IF APPLICABLE)
1. If Services are being supplied, then the Supplier warrants that the Services will:
  1. comply with the description of the Services in the PO;
  2. be provided with due care and skill, and in a timely and efficient manner;
  3. be provided in accordance with the best practices current in the Supplier’s industry;
  4. be supplied without infringing any third party’s IP Rights;
  5. be performed by the Supplier and/or the Supplier’s Personnel; and
  6. be supplied in the most cost-effective manner, with the required level of quality and performance.
2. The Supplier and the Services must comply with these Terms and Conditions.
3. If in OTHRC’s reasonable opinion, the Supplier has failed to reasonably perform the Services, OTHRC may elect to:
  1. have the Supplier provide replacement Services within such reasonable time as OTHRC may determine; or
  2. terminate this Contract.
SUPPLIER OBLIGATIONS
1. The Supplier agrees it (and will ensure all its Personnel) will, at all times:
  1. comply with all Laws;
  2. comply with all OTG policies and procedures, as notified by OTHRC from time to time;
  3. effect & maintain during the Term (and for 12 months afterwards), the following insurance policies with reputable companies:
    1. public and product liability insurance with coverage of at least $10 million per each and every occurrence;
    2. professional indemnity insurance with coverage of at least $5 million;
    3. workers’ compensation insurance as required by Law;
  4. promptly provide evidence as OTHRC reasonably requires confirming compliance with sub-clause (c);
  5. not make enquiries of, or maintain contact with any of OTHRC’s shareholders, residents, employees, contractors or landlords, other than in the ordinary course of delivering the Goods and/or Services; and
  6. provide a minimum of 2 Business Days’ notice prior to attendance at a Site.
2. The Supplier must, in supplying the Goods or performing the Services:
  1. not interfere with any of OTHRC’s activities, or the activities of any other party at the Site/s;
  2. supply and maintain, at its cost, everything the Supplier requires to supply the Goods and/ or perform the Services in accordance with this Contract, including, but not limited to, all tools, equipment, materials, authorisations, licences, certifications, registrations, statutory requirements and insurance required to be effected and maintained in accordance with clause 5.1(c);
  3. leave the Site/s secure, clean, orderly and fit for immediate use having regard to the condition of the Site/s immediately prior to the performance of the Services; and
  4. on written request by OTHRC, provide to OTHRC any information and assistance required to identify, evaluate, implement and report on any matter required by Law in respect of anything used, produced or created in connection with the performance of the Supplier’s obligations under this Contract.
3. During the applicable Defects Liability Period:
  1. OTHRC may direct the Supplier to rectify any Defect in a Good or re-perform a Defective Service; and
  2. the Supplier must, at its own cost, rectify any Defect in that Good or re-perform that Defective Service if OTHRC directs the Supplier to rectify a Defect under clause 5.3(a) – within the time reasonably directed by OTHRC (or, if no time is specified, as soon as reasonably possible after the Supplier receives the direction), and if the Supplier becomes aware of the existence of any Defect in the Goods and/or Services – as soon as possible after the Supplier becomes aware of the Defect.
4. The Supplier must ensure that rectification services performed under clauses 5.3 cause as little inconvenience as is reasonably possible to other persons using the Goods and/or Services.
5. If the Supplier fails to comply with any of its obligations under clauses 5.3 and 5.4, OTHRC may have any of the rectification services carried out by a third party. The cost of any rectification services incurred by OTHRC will be a debt due from the Supplier to OTHRC.
PRICE AND PAYMENT
1. The Price stated on the PO is firm and includes containers, packaging and all costs and charges to the Site/s (unless otherwise stated) and is inclusive of GST.
2. OTHRC is not obliged to pay the Price, unless the Supplier has provided OTHRC with a tax invoice in respect of that payment (which is compliant with the Australian Taxation Office requirements).
3. OTHRC will pay each undisputed tax invoice in full and in cleared funds to the bank account nominated by the Supplier within 30 Calendar Days of OTHRC’s receipt of the relevant tax invoice.
4. Payment of any tax invoice shall not be deemed acceptance of the Goods and/or Services, nor a waiver of OTHRC’s rights under this Contract.
WHS
1. The Supplier acknowledges and agrees that:
  1. the Sites are operational retirement villages, and that OTG has obligations to the residents of those villages whether in respect of access to individual villas, noise and nuisance and safety. The Supplier will comply with all lawful directions of any OTG Personnel and any of OTG’s applicable policies and procedures; and
  2. the Goods and/or Services supplied by the Supplier (and its Personnel) and access to the Sites are undertaken at the Supplier’s own risk. The Supplier will assume responsibility for and comply with all obligations under WHS Law in so far as they apply to persons engaged/employed by the Supplier to deliver the Goods and/or Services, but acknowledges that OTG also has WHS duties at each Site. The Supplier will immediately notify OTHRC in writing if a WHS Incident occurs in the course of, or ancillary to, the provisions of the Goods and/or Services.
2. The Supplier must ensure that all Supplier Personnel (including any subcontractors) performing the Services at the Sites undertake and complete the OTG Online Company Induction process prior to attending the Sites.
IP, DATA AND CONFIDENTIALITY
1. The Supplier irrevocably and unconditionally grants to OTHRC (and OTG) a non-exclusive, perpetual, royalty-free, transferable licence (including the right to sub-license) to use any IP Rights in relation to any Goods and/or Services supplied, to the extent necessary to allow OTHRC the full use and enjoyment of those Goods and/or Services and the Supplier must, upon request by OTHRC, do all things as may be necessary (including executing any documents) to give full effect to this clause.
2. If reports, data or other materials (Data) are to be delivered in the performance of the Services, the rights and title (including copyright) vests in OTHRC immediately upon their creation. The Supplier must only use the Data to the extent necessary to perform its obligations under this Contract.
3. Nothing in this clause affects any assignment of IP Rights in any Goods and/or Services, or other items supplied under this Contract, unless the parties expressly agree in writing to the contrary.
4. The Supplier shall not disclose any Confidential Information to any third party without OTHRC’s prior written consent. The Supplier will not be in breach of this clause in circumstances where it is required by Law to disclose Confidential Information to a regulator.
PRIVACY
1. Where the Supplier processes Personal Information concerning OTHRC Personnel (or any OTG Personnel) in relation to this PO, the Supplier will:
  1. comply with all applicable Data Privacy Laws; and
  2. take all appropriate technical and security measures against any accidental loss, disclosure/destruction of, unauthorised/unlawful processing of, or damage to, such Personal Information.
2. The Supplier acknowledges and agrees that:
  1. OTG collects Personal Information concerning the Supplier (and its Personnel) including names, business titles, business addresses, billing information and other business contact information (Supplier Information);
  2. OTG will only collect, disclose, handle and store Supplier Information for a purpose directly related to OTG’s functions and activities as a retirement village operator – e.g. to establish suppliers in OTG’s Accounts Payable system, process payments to suppliers, and perform related accounting and record keeping functions (OTG Purposes), and will handle this Supplier Information in accordance with OTG’s Privacy Policy;
  3. in order to carry out the OTG Purposes, OTG may disclose the Supplier Information to its relevant third-party suppliers, including (but not limited to) OTG’s financial institution, IT service providers, agents, lawyers, insurance companies, and professional advisers (OTG Intermediaries). These OTG Intermediaries are bound by confidentiality and/or non-disclosure agreements and will be permitted to only use the Supplier Information for the OTG Purposes and/or for the purpose of providing Goods and Services to OTG (and where relevant, these OTG Intermediaries are aware of their obligations under relevant Data Privacy Laws); and
  4. if the Supplier does not provide OTG with adequate information, OTG may not be able to carry out those activities and fulfill the OTG Purposes – e.g., OTG will be unable to pay a tax invoice;
  5. by providing OTG, OTG Personnel, or any of OTG’s Intermediaries with Supplier Information, the Supplier is providing its consent for OTG (and OTG’s Intermediaries) to collect, handle, store (and where required, disclose to other third parties) Supplier Information for the OTG Purposes;
  6. OTG may have to disclose Supplier Information to regulators, law enforcement bodies and/or as required by Law, within Australia and overseas; and
  7. should the Supplier wish to access, make a complaint, or request an amendment to any Supplier Information (which is held by OTG), then this will be done in accordance with OTG’s Privacy Policy.
INDEMNITY
1. The Supplier indemnifies OTHRC (including OTG and all OTG Personnel) against all Losses arising from any:
  1. action or claim for alleged infringement of any copyright, registered design, trademark or any other IP Right;
  2. breach by the Supplier (or any of its Personnel) of clause 8.4; and
  3. negligent, unlawful, wilfully wrong or fraudulent act or omission of the Supplier or its Personnel, but the Supplier’s liability to indemnify OTHRC shall be reduced proportionally to the extent that the Loss was caused by a breach of this Contract by, or a wrongful (including negligent) act or omission of OTHRC or its Personnel.
TERMINATION
1. A party may terminate this Contract immediately upon giving written notice to the other party if:
  1. the other party is in breach of this Contract and has not rectified such breach within 14 Calendar Days of a party giving written notice to the other party requiring the rectification of such breach; or
  2. the Supplier suffers or, in the reasonable opinion of OTHRC, is in jeopardy of becoming subject to any form of insolvency administration or bankruptcy.
2. Any termination of this Contract by either party does not affect any accrued right of either party.
GENERAL
1. This Contract supersedes all other communications and negotiations (whether oral/written) between the Supplier and OTHRC in relation to the Goods and/or Services, and constitutes the entire terms of the Contract, unless otherwise agreed in writing by both parties.
2. To the extent permitted by Law, these Terms and Conditions prevail over and supersede any other terms and conditions purporting to apply to the PO (including any terms and conditions contained or referred to in any quotation, delivery note, invoice, correspondence or other documentation supplied by the Supplier). Such terms and conditions shall be of no legal effect and do not form part of this Contract, even if OTHRC’s Personnel (or any OTG Personnel) signs and/or if the Supplier attaches them to a PO or tax invoice.
3. Time is of the essence as regards to all dates, periods of time and times specified in this Contract.
4. The Supplier must not, without OTHRC’s prior written consent, assign, subcontract, encumber or transfer any of its rights/obligations under this Contract. The Supplier acknowledges and agrees that:
  1. any such consent provided by OTHRC will not relieve the Supplier of its obligations under this Contract; and
  2. even if OTHRC provides the Supplier with written consent to a subcontractor, the Supplier remains responsible to OTHRC for the performance of any and all obligations under this Contract and will be liable for all acts and omissions of the subcontractor (and their Personnel), as if those acts/omissions were the actions of the Supplier.
5. No agreement or understanding varying any part of this Contract will be legally binding upon either party, unless agreed in writing and signed by both parties (by their duly authorised representatives).
6. Failure by OTHRC to insist on strict performance of any term, warranty or condition of this Contract will not be taken as a waiver of it or of any rights OTHRC may have, and no waiver will be taken as a waiver of any subsequent breach of any term, warranty or condition.
7. If any clause or part of a clause is held by a Court to be invalid/unenforceable, that clause or part of that clause will be severed from this Contract, and this Contract will otherwise remain in full force and effect.
8. The Supplier will not without OTHRC’s prior written consent, engage in publicity related to this Contract, or use any OTG name, logo, trade name, trademark, service mark, insignia, symbol, logo, or any other designation or IP Right of OTHRC or OTG in any manner whatsoever.
9. Clauses 5, 8, 9, 10 and 12 shall survive the expiration or termination of this Contract.
10. OTHRC and the Supplier agree that, to the maximum extent permitted by Law:
  1. the provisions of the Proportionate Liability Legislation are excluded, and will not limit or otherwise affect the operation of the express clauses with respect to the parties’ rights, obligations, and liabilities under this Contract;
  2. the United Nations Convention on Contracts for the International Sale of Goods (adopted at Vienna on 10 April 1980) does not apply to this Contract in any respect.
11. This Contract will be governed by the Laws of the State of New South Wales, Australia.
DEFINITIONS
1. Business Day/s means a day that is not a Saturday, Sunday or public holiday in the capital city of the State or Territory where the Site is located.
2. Calendar Day/s means any day in a calendar year, including weekends and public holidays.
3. Confidential Information includes any information of a confidential nature concerning the business, affairs, residents or suppliers of OTG or of any member of OTG, including but not limited to information relating to OTG’s operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities, and resident lists (including the terms and conditions of this Contract), but does not include information which is available to the public (other than as a result of a breach of this Contract).
4. Data Privacy Laws means all laws (including the Privacy Act 1988 (Cth) (Privacy Act)) now or in the future, within Australia and overseas, relating to data protection, privacy and information security, including all applicable international, regional, federal, or national data protection laws, regulations and regulatory guidance.
5. Defect means any defect, fault or omission in the Goods and/or Services or where the Goods and/or Services do not comply with the requirements in this Contract. “Defective” has the corresponding meaning, other than where this is caused by a negligent or wilful act of the Supplier.
6. Defects Liability Period means 12 months from the date the applicable Goods and/or Services are accepted by OTHRC, unless otherwise specified in a PO.
7. Goods and/or Services has the meaning given in the relevant PO.
8. IP Rights means all intellectual property rights at any time recognised by law, including all present and future copyright, all proprietary rights in relation to inventions (including patents), registered and unregistered trademarks, trade secrets and know-how, registered designs, circuit layouts, and all other proprietary rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
9. Law/s means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time anywhere in Australia, whether made by a State, Territory, the Commonwealth, or a local Government, and includes the Common Law, as applicable from time to time.
10. Loss/es means any:
  1. loss, damage (including damages at common law or in equity), liability, debt, cost (including legal costs, deductibles or increased premiums), expense, fee, compensation, charge or other amount; or
  2. fine or penalty (to the extent not prohibited by Law), whether direct, indirect, consequential, present, future, fixed, unascertained, actual or contingent.
11. OTG means the Oak Tree Group, being Oak Tree Holdings Pty Ltd ACN 161 180 23 (OTH), and its Subsidiaries.
12. OTHRC means OTH Resources Central Pty Ltd ABN 83 164 469 461, a Subsidiary of OTH and a member of OTG.
13. Personal Information has the meaning given in the Privacy Act.
14. Personnel includes an officer, employee, agent, contractor or consultant of the relevant party. In respect of the Supplier, Personnel includes any subcontractors and the Personnel of those subcontractors.
15. Price is in Australian Dollars (AUD) unless a different currency is stated in the PO and is the total value of the PO and includes all applicable taxes and freight charges.
16. Proportionate Liability Legislation means Part 4 of the Civil Liability Act 2002 (NSW), and any provision of any other applicable Law that has a substantially similar effect to any provision of Part 4.
17. PO means the purchase order issued by OTHRC to the Supplier requesting the Goods and/or Services.
18. Site/s means the relevant OTG retirement villages (or other delivery point advised by OTHRC in writing), where the Goods and/or Services are required to be supplied.
19. Subsidiary/ies has the meaning given in the Corporations Act 2001 (Cth).
20. Supplier means the person, firm, enterprise, or corporation to whom the PO is addressed.
21. WHS Incident means any unplanned event resulting in, or having a potential for injury, illness, damage/other loss.
22. WHS Law means the relevant work, health and safety legislation applicable or any Law having a similar effect or purpose, in the State or Territory in which the Goods and/or Services are being supplied.

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Terms and Conditions

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