Terms and Conditions

Suppliers and Sub-Contractors – Standard Terms and Conditions

1.   General
These are the terms and conditions referred to in the Purchase Order.
When terms and conditions apply
These standard terms and conditions (Standard Conditions) apply to any contract entered into by Rubix Future Living Pty Ltd (ABN 81 627 269 443). (Rubix Nicheliving) by issuing a Purchase Order to the nominated Supplier, whether as an offer or acceptance of an offer, where that Purchase Order refers to the Rubix Nicheliving Standard Conditions.
Upon receipt of a Purchase Order, the performance of any Services or manufacture of any Goods by the Supplier shall constitute acceptance of its terms.
The General Scope of the Purchase Order Contract
Supply of Goods and Services as requested by Rubix Nicheliving as to sizes, quantities and types.
Ensure that the Goods and Services supplied comply with the quality, size and nature specified in the Contract or correspondence agreed by Rubix Nicheliving.
Supply the Goods and Services for the Purchase Order Price agreed between the parties.
Comply in all respects with the Contract concerning the sale, supply, delivery and payment for Goods and Services on the Purchase Order.

2.   Interpretation
In these standard conditions:
Confidential Information means any information which is by its nature confidential and is either designated by the disclosing party as confidential or the other party knows or ought to know is confidential;
Contract means the agreement between Rubix Nicheliving and the Supplier comprised of these Standard Conditions and the Purchase Order;
Goods means any material, plant, item or equipment specified in the Purchase Order to be supplied by the Supplier;
Intellectual Property includes all inventions, patents, names, trademarks, designs, copyright, technical know-how and commercially sensitive, confidential or valuable information;
Manufacture includes grow, extract, produce, process and assemble;
Property includes every type of right, interest or thing which is legally capable of being owned and includes, but is not restricted to, physical goods, equipment and real property, as well as intangibles such as Intellectual Property, contract options and goodwill, in relation to the Goods and Services supplied by the Supplier;
Services means any service specified in the Purchase Order to be provided by the Supplier;
Supplier means the supplier identified in the Purchase Order to supply the Goods and Services;
Purchase Order means a document titled “Purchase Order” which shall be subject to these Standard Conditions and issued by Rubix Nicheliving to the Supplier;
Purchase Order Price means the price stated in the Purchase Order (as varied by agreement of the parties in writing in accordance with these Standard Conditions) for the supply of Goods and Services;
Warranty Period means sixty (60) days from the date of delivery.
Headings are not part of these Standard Conditions.
In the event of any inconsistency between these Standard Conditions and any conditions or terms contained or referred to in the Purchase Order or any other document, the terms of the Purchase Order will prevail to the extent of the inconsistency.
Unless otherwise provided, all references to sums of money shall be in terms of the Australian currency, all documents and communications shall be in the English language and all references to measurements, quantities, dimensions and units shall be in terms of commonwealth legal units.

3.   Packing
The Supplier must ensure that the Goods are packed with appropriate packaging material to ensure the safe delivery and transportation, and to prevent damage, deterioration and contamination of the Goods. Environmentally friendly packaging material shall be used where practicable.
The Supplier shall be liable for any expense, loss or damage arising from failure to follow the packaging instructions in clause 1.

4.   Delivery
Subject to clause 9, delivery of the Goods and performance of the Services must be made at the time, place and in the manner specified in the Purchase Order. Failure to comply with the advised transport mode may render a cost variation at the Supplier’s expense.
Nicheliving may, at any time and from time to time, extend the time for delivery of the Goods or completion of the Services by providing a notice to the Supplier.
Upon delivery, the Goods shall be accompanied by a delivery docket quoting the Purchase Order number. A separate invoice shall be sent to Rubix Nicheliving as soon as possible after delivery in accordance with clause 11.
All elements of the Goods and Services delivered by the Supplier shall be at the risk of the Supplier and no liability to pay for them shall arise until that element of the Goods or Service is approved by Rubix Nicheliving and delivery is accepted by Rubix Nicheliving.
Should the Supplier be at fault in the completion of a Service or delivery of Goods as specified, upon return of any such element of the goods which are not acceptable to Rubix Nicheliving, the Supplier shall reimburse Rubix Nicheliving for:
any amounts paid by Rubix Nicheliving on account of the price of the returned elements of the Goods or Services; and
any costs incurred by Rubix Nicheliving in connection with the delivery or return of the relevant element of the returned Goods.
Where Rubix Nicheliving has accepted an element of the Goods or Services that constitute part of the Purchase Order, Rubix Nicheliving will pay the Supplier that part of the Purchase Order Price attributable to the Goods accepted.

5.   Quality and inspection
Rubix Nicheliving can inspect the goods and services at any time and reject those not in accordance with the contract.
Rubix Nicheliving can reject goods after delivery and services after performance if they do not comply with the Purchase Order.
Rubix Nicheliving is not liable to pay for:
rejected goods or services;
goods damaged by inspection; or
costs associated with inspection or rejection.
If upon inspection any goods or services are rejected by Rubix Nicheliving because they are found to be damaged, unsatisfactory, defective, or of inferior quality or workmanship, or fail to meet the specifications or any other requirements of the Contract, the Supplier must, without prejudice to Rubix Nicheliving’s rights:
replace or repair, without cost to Rubix Nicheliving, the rejected goods; or
remove the rejected Goods and refund payment of the rejected goods; or
reperform the Services.
The Supplier must comply, at no cost, with all efforts of Rubix Nicheliving to inspect the goods.
The Supplier will not manufacture Goods in bulk until Rubix Nicheliving has approved the purchase of goods.

6.   Samples
Rubix Nicheliving may require, as a condition of the Purchase Order, a sample of the proposed goods to be supplied. In the event that such a sample is produced and approved then any subsequent delivery is referable to the sample and shall be of the size, nature and quality consistent with that of the approved sample.

7.   Ownership of property
The Supplier warrants that any Property which is supplied in connection with the supply of Goods and Services is free and clear of all liens, charges, taxes and encumbrances and that the Supplier has good title to the Property.
Ownership of, and risk of loss of or damage to the Goods, passes to Rubix Nicheliving upon delivery in accordance with the terms and conditions of the Purchase Order.
Where any part or progress payment for the Goods or Services is made by Rubix Nicheliving, the entire title of the Property shall pass without exclusion or limitation.

8.   Warranties
The Supplier represents and warrants to Rubix Nicheliving that:
the Goods and Services shall be supplied in accordance with the terms of the Purchase Order and with reasonable skill, care and diligence reasonably expected from a qualified, competent and experienced supplier of similar services;
it has and will at all times have the skills, facilities, capacity, staff and other resources necessary to supply the Goods and Services in accordance with the Contract;
the Goods and Services will be free from defects in design, material and workmanship;
all of its relevant personnel are appropriately trained in their role or function in the supply of the Goods and performance of the Services; and
it will adequately monitor and supervise all relevant staff engaged in delivery of the service.
During the Warranty Period, the Supplier shall, at its own expense and in addition to any other warranties offered by the Supplier, repair or replace any Goods or reperform any Services that are defective as to design, materials or workmanship.
The Supplier must meet all costs of, and incidental to, the discharge of warranty obligations, including any packing, freight, disassembly and re-assembly costs.
In the event that the Supplier fails to remedy any defect in accordance with clause 2, Rubix Nicheliving may procure a third party to do so and the direct costs incurred by Rubix Nicheliving may be recovered from the Supplier as a debt due and payable to Rubix Nicheliving.

9.   Indemnity
The Supplier indemnifies and hold harmless Rubix Nicheliving and its officers, employees, agents, customers and subcontractors against all loss, liability, damage, injury, suit, action or expense of whatsoever nature arising from or incurred, whether directly or indirectly, by any breach of this contract, including any action or claim for alleged infringement of any patent, copyright, registered design, trademark or any other intellectual property rights, by reason of Rubix Nicheliving’s receipt or enjoyment of the Goods.
The Supplier shall be solely liable for and shall indemnify and hold harmless Rubix Nicheliving and its officers, employees, agents, customers and subcontractors against any loss, liability, damage, injury, suit, action, expense or proceeding of whatsoever nature and however arising:
under statute or at common law in respect of personal injury (which expression shall include illness) to or death of any or all persons;
out of the negligence, acts or omissions, or wilful misconduct of the Supplier or the Supplier’s employees, officers, consultants, agents and subcontractors; and
in respect of loss, destruction, injury or damage to any and all property arising out of or in connection with the supply of the Goods and Services.
Each indemnity will survive the expiry or any termination (for cause or otherwise) of this Contract and will be deemed to extend to and for the benefit of the directors, agents, customers, representatives, advisers, consultants and employees of the indemnified party, subject to the express terms of the indemnity.

10.   Insurance
The Supplier shall take out and maintain during the term of the Contract and at its cost:
workers compensation insurance in compliance with all applicable laws and in respect of any and all liability to its officers, servants, agents, subcontractors and employees engaged in supplying the Goods and Services for workers compensation;
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) for an amount of not less than $10,000,000 in respect of each and every claim, unlimited as to the number of occurrences for public liability;
any additional insurance required by an applicable law or reasonably required by Rubix Nicheliving.
Where the Supplier is providing professional services, the Supplier must effect and maintain with a reputable insurer professional indemnity insurance of not less than $5,000,000 for each claim and in the aggregate for all claims arising in the same insurance period, covering the liability of the Supplier and the Supplier’s personnel under the Contract.
The Supplier shall, on request, produce copies of certificates of currency for each and any relevant insurance policy required to be maintained under this Contract.
The Supplier shall ensure that every subcontractor it engages in relation to the Contract carries similar policies of insurance or is covered under the Supplier’s own policies.

11. Invoicing and Payment
Unless otherwise stated in the Purchase Order, the Supplier may submit invoices to Rubix Nicheliving for payment of the Purchase Order Price upon delivery of the Goods or Performance of the Services.
Invoices must be submitted electronically to Rubix Nicheliving’s accounts payable department at Invoices@Nicheliving.com.au or by post to P.O Box 51 Northbridge WA 6865
All invoices submitted to Rubix Nicheliving for payment shall:
satisfy the Purchase Order specifications;
be accurate and complete in all material respects;
provide itemised details of the Goods and Services supplied for which payment is being claimed;
separately claim any amounts payable on account of GST, duty or other tax; and
provide reasonable substantiation of the amount claimed.
Unless mutually agreed upon in writing between Rubix Nicheliving and the Supplier, payment of the Purchase Order Price shall be made no less than 60 days after the end of the month in which Rubix Nicheliving receives a tax invoice from the Supplier that complies with the terms of this clause.
Payment of the Purchase Order Price by Rubix Nicheliving or any part thereof does not constitute Rubix Nicheliving’s acceptance of the Goods and Services supplied by the Supplier or evidence that the Goods and Services comply with the terms of the Purchase Order.

12. Execution of this Purchase Order
If the Supplier/Subcontractor receives a copy of the Purchase Order prior to commencing work on site, and subsequently commences work or delivery of Goods on site, the Supplier/Subcontractor by its actions in commencing work or delivery of Goods on site accepts that the terms and conditions of the Purchase Order are binding on it. If the Supplier/Subcontractor is unable or unwilling to accept the Purchase Order, it must notify Rubix Nicheliving promptly. It may propose a variation to the Purchase Order, or offer other Goods and/or Services in substitution, but any such variation or substitution must be approved by Rubix Nicheliving in writing.

13. Subcontracting
The Supplier must not, without Rubix Nicheliving’s consent in writing, subcontract the whole or any part of the work of manufacture or provision of the Goods or Services.
Any approval to subcontract pursuant to clause 1 given by Rubix Nicheliving shall not relieve the Supplier from any of its obligations or liabilities under the Contract.
The Supplier will be liable to Rubix Nicheliving for the acts and omissions of any subcontractor as if those were the acts or omissions of the Supplier.

14. Applicable law
The contract will be governed by and construed in accordance with the laws in force in Western Australia and the parties agree to submit to the jurisdiction of the courts of Western Australia.

15. Statutory Requirements
The Supplier shall, in its dealings with its employees, have due regard to Commonwealth policies on employment, including equal employment opportunity, slavery, access and equity, affirmative action, occupational health and safety and workplace diversity.
The Supplier shall ensure that its supply and delivery of the Goods or Services satisfies all of the requirements of all relevant Acts of Parliament and all ordinances, regulations, by-laws, orders and proclamations made that are relevant to the Purchase Order.

16. Termination
Rubix Nicheliving may terminate all or any part of the Contract for its convenience and at any time effective upon the date that is seven (7) days’ written notice to the Supplier.
If the Supplier:
fails to deliver the Goods or provide the Service by the date required by the Contract;
is in breach of any other material term of the Contract;
being an individual, commits an act of bankruptcy, becomes a bankrupt, executes a deed of assignment or deed of arrangement under Part 10 of the Bankruptcy Act 1966 (Cth) as amended or a creditor accepts a composition under that Act or any analogous overseas law; or
being a corporation (other than for the purpose of a reconstruction or amalgamation):
is the subject of a compromise or arrangement with its creditors;
in respect of property of which a receiver and/ manager is appointed; or
in respect of which a provisional liquidator is appointe
Rubix Nicheliving can, without prejudice to any other rights and remedies it has under the Contract or otherwise, terminate the Contract in whole or part immediately.
If the Contract is terminated, Rubix Nicheliving may in its absolute discretion:
cease payment under the Contract up to and including any work completed;
recover from the supplier all sums paid for undelivered Goods and unperformed Services;
purchase similar Goods from alternative suppliers and claim by way of indemnity from the Supplier any loss it may occur in doing so.
Upon receipt of a written termination notice, the Supplier shall stop performing the Services to the extent specified in the notice and take such other action as may be necessary, or as Rubix Nicheliving may direct, and the Supplier shall use its best endeavours to minimise the costs arising from such termination.
In the event this agreement is terminated through no fault of the Supplier and the Supplier has performed some or all of its obligations under this agreement without breach or default, the Purchase Order Price shall be paid on a pro rata basis according to the portion of Services carried out and portion of the Goods shipped as at the date when notice is given and up until the new termination date.

17. Dispute Resolution
If any difference or dispute shall arise between the parties as to the interpretation of this agreement or concerning any act matter or thing to be performed or observed in this agreement (Dispute) either party may give written notice to the other party specifying the Dispute and requiring its resolution under this clause (Notice of Dispute).
Where a Notice of Dispute is issues, the parties must use their best endeavours to resolve the Dispute within 21 days of the days on which the Notice of Dispute is served (or within such longer periods as the parties may agree).
If the parties are unable to resolve the Dispute within the time specified in clause 2, the Dispute shall be submitted to mediation in accordance with, and subject to the Resolution Institute Mediation Rules, before the parties commence court proceedings.
Each party must continue to perform their agreement despite the Dispute or the commencement of proceedings.

18. Assignment
The supplier shall not assign, transfer or novate this contract in whole or in part without Nicheliving’s prior written approval.
Any approval provided pursuant to clause 1 given by Rubix Nicheliving shall not relieve the supplier from any of its obligations or liabilities under this contract.
Rubix Nicheliving shall have the right to assign all or any of its obligations or rights under this contract to any related body corporate or to any principal or customer of Rubix Nicheliving.
For the purposes of clause 3, related body corporate has the meaning given to that term in the Corporations Act 2001 (Cth).

19. Confidential Information
The Supplier acknowledges that in supplying the Goods and Services, the Supplier will have access to Confidential Information of Rubix Nicheliving.
The Supplier shall use the same degree of care in safeguarding the Confidential Information of Rubix Nicheliving as it uses for its own Confidential Information of like importance, but no less than reasonable care. Upon discovery of any disclosure or misuse of Confidential Information, the Supplier will promptly notify Rubix Nicheliving and will act to prevent any further disclosure or misuse.
The Supplier may disclose or use such Confidential Information as is necessary for the proper performance of the Services or when required by law.
If the Supplier is required to disclose Confidential Information, the Supplier must notify Rubix Nicheliving in writing of the disclosure, or the impending disclosure as soon as is reasonably practicable.
All Confidential Information will remain the property of Rubix Nicheliving, and the Supplier will promptly return or delete all copies and excerpts thereof to Rubix Nicheliving upon request.
The obligations in this clause will survive for a period of twelve (12) months from the date of delivery of the Goods or cessation of the Services.

20. Intellectual Property
The Supplier must not use Rubix Nicheliving’s Intellectual Property without having received Rubix Nicheliving’s prior written consent.
The extent to which the Supplier may need to use Rubix Nicheliving’s Intellectual Property to perform its obligations under the Contract, Rubix Nicheliving grants the Supplier a non-exclusive license to use Rubix Nicheliving’s Intellectual Property for the sole purpose of enabling the Supplier to perform its obligations under the Contract.

21. Material Safety Data Sheets
As per the Occupation Safety and Health Act 1984 (WA), the Supplier shall forward all necessary information in relation to the chemical composition, safety measures and product treatment, via Material Safety Data Sheets before the delivery of goods to Rubix Nicheliving.

22.  Waiver
A party’s failure or delay to exercise a power or right does not operate as a waiver of the power or right. A waiver is not effective unless it is in writing.

23. Variation
Rubix Nicheliving may vary the Purchase Order at any time by giving written notice to the Supplier.
The Supplier must, as soon as receiving the proposed variation, advise Rubix Nicheliving if the variation can be performed.
If the variation affects the Purchase Order Price, Rubix Nicheliving and the Supplier will act reasonably in negotiating an adjustment to the Purchase Order Price.

24. Negation of employment, partnership and agency
This Contract does not create a relationship of employment, agency or partnership between the Supplier and Rubix Nicheliving.

25. Purchase Order Price
The Purchase Order Price for the supply of Goods and Services includes:
all taxes, duties and other imposts for which the contractor is liable;
all insurance costs;
all amounts payable for the use (whether in course of performance of the services or their enjoyment) of patents, copyright, registered designs, trademarks and other intellectual property rights; and
all charges for performances of the Services or the supply of the Goods.
Freight charges are to include all insurance and other charges in or in connection with the forwarding of Goods or Services to Rubix Nicheliving.

26. Time of the Essence
Time shall be of the essence as regard to any date or period prescribed in the Purchase Order and as may be varied in writing during the term of the Contract.