model 103 terms and conditions for electronic orders

Australia International

These terms and conditions (“Terms”) govern the provision of products and/or services (“Work”) described in a request made in Company’s electronic procurement system (“Order”). The Terms and the Order comprise the “Contract.” “Company Group” means Company, its Affiliates, its joint interest owners, and each of their respective directors, officers, and employees, and does not include Company’s contractors and subcontractors. “Contractor Group” means Contractor, its Affiliates, their subcontractors, and each of their respective directors, officers, and employees, and any person acting on their behalf. “Affiliate” means any legal entity which, directly or indirectly, controls, is controlled by, or is under common control with, another legal entity. Any existing master agreement in force between the parties (whether identified in the Order or otherwise) governing the subject matter of the Order will apply and take precedence over these Terms.
  1. ACCEPTANCE AND COMPLETE AGREEMENT. Contractor’s acceptance of the Contract is deemed to occur on the earlier of: (A) Contractor’s commencement of the Work; or (B) when Contractor clicks ‘acknowledge’ in the electronic procurement system, by which Contractor is acknowledging, agreeing, and accepting the obligations set forth in the Order. The parties agree that the Contract is deemed executed and enforceable without signatures of the parties. The Contract is a complete and exclusive statement of the terms and conditions of the agreement between Company and Contractor.

  2. TERM AND TERMINATION. The Contract is effective on the date the Order is issued and terminates on the completion date of the Work specified in the Order. Company may terminate the Contract or reduce the Work by giving 15 days’ notice. Upon receipt of such notice, Contractor shall discontinue performance and take all measures to mitigate the costs of termination. All provisions in the Contract will survive completion or termination, other than Contractor’s obligation to perform Work that is not remedial performance of the Work.

  3. PERFORMANCE. Contractor shall perform the Work in a good and workmanlike manner, in accordance with generally accepted industry practices, and in compliance with the Contract, applicable laws, and Company’s standards that Company notifies to Contractor. Timing of Contractor’s performance is a material element of the Contract, and Contractor shall perform the Work in a timely manner as set out in the Contract. Contractor shall immediately notify Company if it has reason to believe that it will be unable to meet the date specified in the Order. Contractor shall comply with Company’s Australian Industry Participation Requirements (ABU180501114) referenced on Company’s website (australia.chevron.com). If any part of the Work does not comply with the Contract, then at Company’s request and without prejudice to Company’s other rights and remedies, Contractor shall promptly re-perform the non-conforming Work to comply with the Contract.

  4. PRODUCTS.
    1. All products must be: (A) fit for the purpose; (B) of merchantable quality and new (unless otherwise specified in the Contract); and (C) free from defects in design, workmanship, and performance. All products and components of products are listed without restriction on the national chemical inventories of the country in which the products are delivered to Company and the country where, to Contractor’s knowledge, Company will use the relevant products.
    2. Subject to this Section, products will be delivered CFR, DAP, DPU, DDP, Ex Works, FCA, or FOB delivery point (as specified in the Order) per Incoterms 2020. Title to each product must be delivered free of any liens or other Claims. For DAP, DPU, DDP, and Ex Works deliveries, title will pass to Company at the delivery point specified in the Order. Ex Works deliveries are permitted only if the shipping point and the delivery point are in the same jurisdiction where products will be used by Company. For CFR, FCA, and FOB deliveries: (A) delivery will only occur after completion of all manufacture, modification, and testing by Contractor Group; (B) for cross-border sales, title will pass to Company immediately after the products have departed the territorial land, seas, or overlying airspace of the country of export; (C) for sales other than cross-border, title will pass to Company at the title transfer point specified in the Order; and (D) if shipping country is the United States (“U.S.”) (whether cross-border or within the U.S.), delivery must be made to a common carrier or freight forwarder with instructions to deliver the products to a specific location outside of the state of shipment. All products must be delivered to Company on or before the date specified in the Order. Contractor must appropriately package any products for shipment (including in accordance with standards or requirements that Company notifies to Contractor) and shall promptly notify Company of any recalls or safety alerts.

  5. WARRANTY.
    1. Contractor warrants to Company that all Work will meet the requirements of Sections 3 and 4. If Contractor fails to provide any Work as warranted, Company shall notify Contractor no later than 30 days after expiration of the Warranty Period. “Warranty Period” means 12 months after the Work is first put into operational use. At Company’s option, Contractor shall (A) repair or replace a non-conforming product (including the removal of non-conforming product from Company’s premises upon replacement) or re-perform services at Contractor’s sole cost and expense, to Company’s satisfaction, using the fastest means available to minimize Company’s loss of use of the products or services, or (B) refund or credit Company that portion of the compensation that is attributable to the non-conforming product or service.
    2. Contractor shall pay all reasonable costs incurred in retrieving and removing from Company’s property any non-conforming product and reinstalling a conforming product. The Warranty Period will be extended by 12 months for all repaired or replaced products or re-performed services. If Contractor fails to perform the remedial action in a timely manner, Company may perform or have others perform corrective work at Contractor’s expense. Contractor shall assign to Company all warranties for the products and components. The warranties set out in this Section do not apply to the extent Contractor demonstrates to Company’s satisfaction that the non-conformity resulted from improper use or storage by Company or others acting on Company’s behalf (other than Contractor Group).

  6. INVOICES. Contractor shall submit an invoice for Work performed. Contractor’s invoice must include the amount due, description of the Work, separately state the amount due for the products (including description, unit price, and quantity) and the amount due for services (including description and calculation), and any other information required in the Order or the Contract. The invoice must include Contractor’s tax registration number and any sales, value added, or other taxes Contractor proposes to collect or for which it will seek reimbursement from Company. Company shall pay undisputed invoice amounts within 30 days after receiving an invoice. Contractor waives all Claims for payment of Work under the Contract if Contractor fails to provide an invoice to Company that is in compliance with the terms of the Contract within 180 days of the completion of the services or the delivery of the products. If Contractor fails to comply with any obligation of this Order, Company may withhold payment of any outstanding invoice until Contractor is in full compliance. Company shall give Contractor notice of the withholding and the basis for withholding within a reasonable timeframe. Additionally, Company may withhold, offset, recoup, or recover against undisputed amounts due under this Order any financial obligation that Contractor Group members owe to Company or a Company Affiliate under any agreement.

  7. TAXES.
    1. Contractor’s Taxes. Contractor is solely responsible (and shall not seek reimbursement from Company) for all Claims for taxes assessed or levied against Contractor Group relating to the Contract, including income, withholding, franchise, margins, personnel/employment, property, gross receipts, license, occupation, and similar taxes, together with any duties, fees, charges, or similar amounts required to be paid to operate or to do business within any jurisdiction, and including any interest and penalties related to any of the foregoing. Contractor is solely responsible (and shall not seek reimbursement from Company) for all Claims for taxes (including withholding and Transaction Taxes) of any subcontractor of any tier in relation to the Contract.
    2. Transaction Taxes. All amounts in the Contract are inclusive of Transaction Taxes (other than GST, unless otherwise stated in the Order). Contractor must separately identify any Transaction Taxes on its invoices and must pay Transaction Taxes as required by applicable law, unless Company advises Contractor that Company is exempted from these taxes. Contractor shall cooperate fully with Company to provide any requested documentation, provide reasonable opportunity to protest an assessment, and reduce the amount of applicable taxes due.
    3. Reports and Withholding. Contractor shall provide Company with certifications or written representations for Company to report, withhold, and pay to the tax authorities any tax due and for which Company is liable on account of the Contract as required by applicable law. Company will provide Contractor with tax receipts (or other proof of payment if receipts are unavailable) for any withheld taxes but will not reimburse Contractor for withheld taxes. Where applicable for any services performed within the United States (“U.S.”) by non-U.S. Contractor Group members, Contractor shall identify the amount (value) on each invoice issued to non-U.S. Company Group members under this Contract.
    4. Australian Goods and Services Tax. All amounts are exclusive of GST unless otherwise stated in the Contract. If a supply under the Contract is subject to GST, the party which made the taxable supply may charge the recipient party an amount of GST in addition to the GST exclusive value payable for the taxable supply provided a tax invoice is issued to the recipient party before the GST amount is paid. If either party is entitled under the Contract to be reimbursed by the other party for a cost or expense incurred in connection with the Contract, the reimbursement must not include any GST component of the cost or expense for which an input tax credit may be claimed by the party entitled to be reimbursed. If GST is expressed in a currency other than Australian dollars, the party which made the taxable supply must display on the tax invoice the amount of GST payable in Australian dollars or the conversion rate used by the party to calculate the GST amount. Contractor’s invoices issued under the Contract must include: (A) information required to comply with GST in accordance with this Section; (B) Contractor’s Australian business number (A.B.N.), or if Contractor is not entitled to an A.B.N., a “Statement of Supplier” (in the form issued by the Australian Taxation Office) must accompany the invoice if requested by Company. All terms used in this Section that are defined in the GST Act have the same meaning in this Section.
    5. Fuel Tax Credits. Contractor shall apply for any fuel tax credits for which it is, or may become, entitled to claim from the relevant authorities. If any fuel taxes were charged to or passed onto Company by Contractor, upon receipt of a refund or credit, Contractor shall immediately reimburse Company for the full amount of such refund or credit. All costs, fees, charges, and expenses resulting from obtaining refunds or credits shall be borne by Contractor.
    6. Definitions. “Transaction Taxes” mean any value added tax, goods and services tax, sales tax, or other excise taxes, but excludes GST. “GST” means goods or services tax or similar tax levied or imposed in Australia pursuant to the GST Act. “GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth) enacted under Australian Law.

     

  8. INSURANCE. Contractor shall maintain all insurances required by applicable laws, and any third-party liability insurance maintained by Contractor must include Company Group as an additional insured. The insurance coverages and limits maintained by Contractor will not limit Contractor’s indemnity obligations under the Contract. Contractor shall not insure products or shipment of products at Company’s expense except as otherwise specified in the Order.

  9. COMPLIANCE, RECORDS, AND INSPECTIONS.
    1. No Contractor Group member will in connection with the Contract: (A) enter into any business arrangement with any representative of Company or any of its Affiliates without Company’s prior written consent, or (B) give to or receive from any representative of Company or any of its Affiliates anything that is more than a nominal cost or value.
    2. No Contractor Group member may offer, promise, give anything of value, or otherwise inappropriately influence an act or decision in connection with, the Contract. Contractor shall comply with all applicable laws and regulations when performing Work under the Contract, including trade sanctions regulations and data protection laws. Contractor represents and warrants that neither it nor any Contractor Group member performing Work are subject to economic sanctions or any trade restrictions imposed by the U.S. government or any other applicable jurisdiction (“Restricted Parties”). Upon learning that Contractor or a Contractor Group member is a Restricted Party, Contractor shall promptly, and in no event later than 90 days, notify Company. Company may terminate this Order with immediate effect upon giving notice to Contractor if Contractor or a Contractor Group member is or becomes a Restricted Party. During the term of the Contract and for 24 months from the end of the calendar year in which the Contract is completed or terminates, Contractor shall ensure that Contractor Group members retain all records related to the Contract (or until expiry of the statute of limitations for taxes or import or export charges) and Company may inspect, at no cost to Company and at any time, all records to confirm compliance with the Contract.

  10. ORIGIN AND IMPORT AND EXPORT MATTERS. Contractor shall provide documentation evidencing the country of origin of products. Contractor shall not supply any product that is subject to United Nations, Australian, United States (“U.S.”) or European Union (“E.U.”) trade sanctions. Contractor is responsible for all import and export formalities in accordance with the designated Incoterm in the Order, including procuring applicable government authorizations. Contractor is responsible for all import and export charges and any other lawfully payable charge related to the import and export of products in accordance with the designated Incoterm. Contractor shall take all actions necessary to ensure that import and export exemptions for products are obtained, and Contractor must comply with such exemptions. If products are eligible for preferential duty treatment, Contractor shall provide free trade agreement certificates of origin to Company within 7 days of shipment. If any product is ineligible for preferential duty treatment, Contractor shall notify Company within 30 days of this determination. Upon or prior to delivery, Contractor shall provide Company with export control classification information for the products and shall further identify any restrictions, prohibitions, or export licensing requirements for the export destination(s) identified in the Contract or Order. Contractor is responsible for importing and exporting all Contractor equipment and products that Contractor requires to perform the Work, including exporting any Contractor equipment when no longer needed to perform the Work. Contractor shall obtain all necessary permits, licenses, authorizations, and clearances for the import and export of Contractor equipment and products. All import and export costs (including any temporary import bonds) shall be provided and paid at Contractor’s sole cost.

  11. CLAIMS, LIABILITIES, INDEMNITIES, AND LIMITATIONS.
    1. PROPERTY AND PERSONNEL. Contractor indemnifies and releases Company Group against Claims, regardless of cause, arising out of the Contract related to personal injury, illness, disease, or death, and damage or loss of property of Contractor Group. Except for Company Group’s portion of negligence, Contractor indemnifies and releases Company Group against Claims arising out of the Contract related to personal injury, illness, disease, or death, and damage or loss of property of Company Group or any third party. “Claim” means any claim, liability, loss, demand, damage, cost, lien, encumbrance, proceeding, cause of action, obligation, requirement, penalty, fine, interest and award, whether arising by law, contract, tort (including negligence), voluntary settlement, or in any other manner.
    2. OTHER INDEMNITIES. Contractor indemnifies and releases Company Group against Claims, regardless of cause, arising out of the Contract for: (A) infringement of intellectual property rights relating to the Work; (B) violation of Section 9; (C) breach of applicable law; (D) Contractor Group’s taxes or tax or import and export obligations; (E) pollution or environmental hazards originating from Contractor Group’s property, and (F) employment-related Claims brought by any Contractor Group member.
    3. LIMITATION ON CLASSES OF DAMAGES. Company and Contractor mutually waive and release, to the fullest extent permitted by applicable law, Claims for indirect or consequential damages, lost profits (whether direct or indirect), punitive damages and exemplary damages. The limitations in this Section only apply to damages or losses suffered by a member of Company Group or Contractor Group. The limitations in this Section do not apply to Contractor’s breach of its confidentiality obligations.
    4. INDEMNITIES REGARDLESS OF CAUSE; EXCLUSION FOR SOLE NEGLIGENCE OR WILLFUL MISCONDUCT. The waiver, release, indemnity, defense, and hold harmless obligations in the Contract apply to Claims arising out of the Contract and apply regardless of cause, i.e., regardless of the active, passive, contributory, or concurrent negligence, or breach of duty (whether statutory or otherwise) fault, or strict liability of any person released or indemnified, and applies regardless of any claim in tort, under contract, or otherwise at law, except for a Claim (other than Claims covered by Section 11.3) resulting from the sole negligence or willful misconduct of the indemnified party. Company and Contractor mutually exclude any application of Part 1F of the Civil Liability Act 2002 (WA) from all Claims arising out of the Contract.
    5. DEFENSE OF CLAIMS. When Contractor indemnifies Company Group against Claims, Contractor shall defend and hold Company Group harmless against those Claims and against all reasonable costs, expenses, and fees (including attorneys’ fees) incurred by Company Group in defending those Claims, and any tax imposed on Company Group as a consequence of receiving payment under Section 11.

  12. COMPANY INFORMATION. “Company Information” includes all information disclosed to Contractor Group by Company, including derivatives and analyses created by Contractor Group, and any deliverables specified in an Order. All rights in Company Information are the exclusive property of Company. Contractor Group shall treat Company Information as confidential and shall not disclose it to any other person without the prior written consent of Company. Contractor shall use Company Information solely for the purpose intended by the Contract and will destroy or return such information as reasonably requested by Company. Contractor will comply with all laws and reasonable requests of Company pertaining to personal data disclosed by Company. Company owns all intellectual property rights and all other property or rights in relation to Company Information. Contractor grants Company and its Affiliates an irrevocable, royalty-free, worldwide right, and license, with the right to sublicense, to use Contractor’s background technology to allow Company Group to use results and deliverables provided as part of the Work.

  13. NO PROCESSING OF PERSONAL DATA. Company and Contractor agree that it is anticipated that no personal data will be processed by Contractor on behalf of Company under or as a result of the Contract (other than as contained within the terms of the Contract). If Contractor begins to process personal data on behalf of Company, Contractor will immediately notify Company and the parties will incorporate appropriate data protection provisions into the Contract.

  14. GOVERNING LAW AND RESOLUTION OF DISPUTES. The Contract is governed and interpreted under the laws in force in the State of Western Australia, without regard to its choice of law rules. If a dispute arising out of or in connection with this Contract, including any question regarding its existence, validity, or termination, is not resolved by direct negotiations within 30 days after a party gives written notice of the dispute, it may be referred by either party to arbitration proceedings and finally resolved by one arbitrator, in English, in accordance with the United Nations Commission on International Trade Law (“UNCITRAL”) Arbitration Rules which are deemed to be incorporated by reference into this Section. The appointing authority is the Australian Centre for International Commercial Arbitration. The seat of arbitration will be Perth, Western Australia. Proceedings to preserve property or seek injunctive relief or enforce an award may be brought in any court of competent jurisdiction.

  15. GENERAL PROVISIONS. Subject to the introductory paragraph of these Terms, the Contract supersedes all prior and contemporaneous representations, agreements, understandings, and commitments between the parties concerning the subject matter of the Contract. No Contractor quote, invoice, price list, change order request, or any other document prepared by Contractor and submitted to Company shall amend or supplement the Terms of the Contract. All notices must be in writing and delivered by mail, email, or by a recognized courier service to the appropriate party’s address set out in the Order. Email notices must clearly state that it is notice given under the Contract. Notices are effective when received by the recipient during the recipient’s regular business hours. Contractor may not assign its rights or obligations under the Contract without the prior written consent of Company. The parties expressly agree that any “click through” or other similar terms that a user may be required to agree to in order to access Work or Contractor’s applications, websites, or software and any terms which Contractor purports to apply to any Order, confirmation of order, specification, invoice, or other document, are void and of no effect. Each provision of the Contract is severable, and any determination of invalidity does not affect any other provision. Contractor may not issue any public announcement or use Company Group names or trademarks without obtaining Company’s prior written consent. If there are any joint interest owners, Company is entering into the Contract on behalf of the joint interest owners severally and not jointly. Contractor agrees to look only to Company for the performance of the Contract, and nothing contained in the Contract imposes any liability upon, or entitles Contractor to commence any proceedings against, any individual joint interest owner other than Company. Company may enforce the Contract on behalf of the joint interest owners, and may recover, on behalf of the joint interest owners, any losses, damages, injuries, or expenses arising under the Contract, subject to the Terms of the Contract. Only Company may enforce the Contract against Contractor on behalf of the joint interest owners.