These terms and conditions (Conditions), subject to any variations we agree to in writing, apply to the purchase of goods and services by the Company identified in our purchase order (our Company, we or us) from the supplier identified in our purchase order (you). Any terms and conditions notified to us by you will apply only to the extent that we expressly accept them in writing. Your supply of the goods and/or services described in our purchase order (Goods and Services) constitutes acknowledgment and acceptance of these Conditions.
You will be deemed to have accepted our purchase order, giving rise to a contract for the supply of the Goods and/or Services subject to these Conditions unless you reject the purchase order within two business days of its delivery.
You acknowledge and agree that our liability to pay under these Conditions falls solely on the Company that issued our purchase order, but that the obligations you accept and warranties you make under these Conditions are accepted and made for the benefit of all of the Company entities and that the Company entity issuing our purchase order contracts as agent on behalf of each other related Company entity.
1. WARRANTIES AND LIABILITY
1.1 You warrant and agree in relation to the Goods that:
a) you have title, free of all liens, charges, encumbrances, mortgages and other security interests whatsoever, and title will transfer to us in accordance with these Conditions;
b) they are fit for the purpose for which they are ordinarily used or, if we have disclosed it, our purpose, and are of merchantable quality;
c) they conform with any technical specifications and performance specifications specified by us, published by you in relation to them, or implied by our proposed use of them;
d) they conform entirely with their description in our purchase order;
e) if you have provided a sample of the Goods, then this is a contract for sale by sample as well as by description;
f) they comply with all applicable laws; and
g) they will be appropriately packed for transport to us, so that they will not be damaged in transit.
1.2 You warrant and agree in relation to the Services that:
a) they will be provided with due skill and care to a standard expected of an organisation experienced in the delivery of Services of this kind;
b) they will be provided in a prompt and timely manner, and in accordance with all timeframes in these Conditions;
c) you will comply with any of our applicable policies, procedures and directions as they relate to the performance of the Services;
d) you will procure and maintain all licenses, permits and authorisations necessary for you to supply the Services;
e) in supplying the Services, you will comply with, and not do anything which would cause us to contravene, any applicable laws; and
f) you will co-operate with any of our other third party service providers as reasonably necessary in relation to the Services.
1.3 In addition to our other rights, we are entitled to the rights provided under:
(a) in Australia, as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth); and
(b) in New Zealand, as set out in the Fair Trading Act 1986 (NZ) and the Consumer Guarantees Act 1993 (NZ), as if the applicable Act applied to the supply of the Goods and Services.
1.4 You indemnify us for all losses, costs, expenses and damage (Loss) suffered or incurred by us (including through claims made against us by third parties) to the extent arising from your breach of these Conditions or your negligence. We will act reasonably to mitigate the Loss we suffer or incur, and this indemnity will not apply to the extent any Loss was caused or contributed to by us. We will also provide reasonable written substantiation of the indemnified Loss suffered or incurred by us. This clause applies notwithstanding anything in your trading terms which might otherwise exclude or limit such liability.
1.5 In connection with the provision of Goods and Services by you to us under these Conditions, you must:
a) act in an ethical and socially responsible manner and adopt behaviours that are reasonably expected of companies of a similar size and nature to you;
b) ensure that all statements made by you to us, including notices, reports and other communications, accurately reflect the actual activities and transactions between us;
c) review, and comply with, our Supplier Code of Conduct and our Anti-bribery and Corruption policy which are published here (as may be updated from time to time); and
d) to the extent you have not already done so, become a signatory to and adhere to the principles of the United Nations Global Compact.
2. WARRANTY PERIOD
2.1 In addition to our rights under clause 1, you warrant that the Goods will be free from any defects, deficiencies or other faults in their design, workmanship, material and satisfactory mechanical and electrical functioning, from the date of acceptance by us for a period of eighteen months (or such other period we agree in writing) (Warranty Period).
2.2 You will repair any defects, deficiencies or other faults in the Goods which become apparent during the Warranty Period or promptly replace the Goods, if necessary, at no cost to us.
2.3 A fresh warranty for the same period commences in relation to any item repaired or replaced from the date of repair or replacement.
3. PRICE AND PAYMENT
3.1 We will pay you the price specified in our purchase order (Price). The Price is inclusive of all costs, expenses and disbursements associated with supply of the Goods and Services, and all taxes, tariffs and duty (except for GST). Except to the extent expressly provided in our purchase order:
a) we will not pay any charges for packing or carriage of the Goods, or any of your other costs; and
b) you will not be entitled to any adjust the Price due to fluctuations in exchange rates, material costs, taxes, duties or labour costs.
3.2 Unless otherwise specified in our purchase order, you may invoice us after completing delivery of the Goods and Services, and we will pay your invoice within 62 days of the end of the month in which it is received. We may pay you by cheque, credit card, electronic funds transfer or cash.
3.3 Each invoice must contain the level of detail reasonably necessary for us to validate the Prices charged for the Services performed and Goods supplied, and you must provide all other information reasonably requested by us.
4. GST
4.1 If, and to the extent that, the supply of Goods and/or Services is a taxable supply then, subject to our receipt of a valid tax invoice, in addition to and at the same time as we pay the Price, we will pay any GST payable for the taxable supply.
4.2 All rebates, discounts or other reductions in price will be calculated on the GST exclusive price.
4.3 Any costs to be reimbursed or indemnified exclude any amount of GST for which an input tax credit can be claimed.
4.4 Expressions in this clause 4 have the same meaning as given in (a) for supplies in Australia- A New Tax System (Goods and Services Tax) Act 1999 (Cth), and (b) for supplies in New Zealand – The Goods and Services Tax Act 1985.
5. RIGHT OF REJECTION
5.1 We may reject any of the Goods if those Goods fail to comply with these Conditions, in particular the warranties in clauses 1 and 2. Upon any such rejection:
a) we will notify you of the rejection in writing and you must (at your cost) collect the rejected Goods;
b) we have no obligation to pay for the rejected Goods; and
c) you remain liable under clause 1.4 for any Loss suffered in relation to the rejected Goods or our rejection of them.
5.2 Our payment for Goods, signing of a delivery docket or other acknowledgment of delivery does not prejudice our right of rejection.
6. DELIVERY
6.1 The Goods and Services must be delivered at the time and place specified in our purchase order or as otherwise specified by us in writing.
6.2 We have no obligation to accept or pay for Goods or Services not delivered in accordance with clause 6.1 unless:
a) the failure was caused by circumstances beyond your control; or
b) we consent in writing to a change to the time or place of delivery.
6.3 You must advise us immediately in writing if:
a) delivery is unlikely to take place on the due date; or
b) there is a partial loss of, damage to, or defects in any delivery of Goods or Services; and
you must take all necessary steps to avoid or minimise any delay and must immediately replace any lost or damaged Goods or rectify any defect in the Services at your cost, if we so require.
7. PASSING OF TITLE AND RISK
7.1 Title to the Goods passes to us on delivery.
7.2 The Goods remain at your risk until they are (a) safely unloaded at our facility, or (b) once we have collected the Goods from you.
7.3 All tools, dies, patterns, jigs, equipment and drawings created or used in the performance of the Services or manufacture of the Goods and which are paid for by us are our property and must not be used without our authority.
8. INTELLECTUAL PROPERTY
8.1 Each party at all times continues to own its IP Rights that were in existence as at the date of these Conditions (Pre-existing IP). To avoid doubt, as between us and you, you will continue to own the IP Rights in the Goods, except where any Goods have been especially designed and created for us (which will be considered a Deliverable for the purposes of clause 8.2).
8.2 Subject to clause 8.1 and 8.3, you automatically assign to us (on the date of creation) all IP Rights in any Deliverables that you create for us in performing the Services. To avoid doubt, this will not assign any of your Pre-existing IP under clause 8.1.
8.3 To the extent any of your Pre-Existing IP forms part of any Deliverables (eg format of reports), you grant us a perpetual, non-exclusive, non-transferable licence to use and modify that Pre-existing IP as part of the Deliverable.
8.4 You warrant that the Goods and any materials supplied to us in the performance of the Services do not infringe any IP Rights) and that we will be free to use them without infringing any such IP Rights.
8.5 To the extent that use of the Goods requires a licence of rights in IP Rights belonging to a third party you must procure for us a perpetual, royalty-free, transferable licence to use that Intellectual Property in respect of our use of the Goods.
8.6 You acknowledge that we own all IP Rights in all information or data which we or our third parties provide to you to perform your obligations under these Conditions, or which is collected or generated in performance of the Services or supply of the Goods (Our Data). Nothing in these Conditions transfers to you any rights in Our Data. You may only use Our Data for the sole purpose of performing the Services.
8.7 You must not use our trade marks, branding or other IP Rights except as expressly permitted by in writing.
For the purposes of these Conditions IP Rights means all rights (whether created before, on or after the date of these Conditions and whether registered or unregistered) in respect of copyright, trade marks, patents, designs, protection of confidential information, circuit layouts, inventions, know-how, product or business concepts and any other identifiable result of intellectual endeavour, whether arising under statute or otherwise; and Deliverables means any deliverable or output that you create for us in performing the Services or supplying the Goods.
9. FORCE MAJEURE
9.1 Neither party shall be liable for non-performance or delays in relation to its obligations under these Conditions to the extent caused by a Force Majeure Event.
9.2 A party that is seeking to rely on a Force Majeure Event must notify the other party promptly on occurrence of the Force Majeure Event, and must use all reasonable endeavours to promptly overcome the Force Majeure Event.
For the purposes of these Conditions, Force Majeure Event means any event or circumstance which is beyond a party’s reasonable control and which could not have been prevented by prudent business practices (including acts of war, terrorism, epidemic, natural disasters, industry-wide industrial action and international trade embargoes). A party may only rely on Covid-19 as a Force Majeure Event to the extent there is a material worsening of circumstances in existence as at the date these Conditions were signed.
10. RECORDS
10.1 You must maintain accurate and complete records in relation to all relevant matters associated with your performance under these Conditions (including all amounts invoiced and paid), and your compliance with all material obligations of these Conditions (Records). These Records must be maintained during the term of these Conditions and for a minimum of two (2) years after.
10.2 On an annual basis, you must allow us (or our third party auditor) access to such Records (on a confidential basis) and/or observe your performance of the Services to allow us to audit your performance under these Conditions. We will give you at least ten (10) Business Days’ prior written notice, and conduct audits during your normal business hours in such a way as to not unreasonably disrupt your normal business activities. We may also conduct an audit if you are in material breach of these Conditions.
11. NOTICES
11.1 Any notices given under these Conditions will be provided to each party using the contact details provided in the purchase order.
11.2 Notices will be deemed given and received as follows:
a) if it is delivered, when it has been left at the addressee’s address;
b) if it is sent by mail within the same country, seven (7) business days after it is posted, and if sent by mail to or from a place outside the country of the recipient, ten (10) business days after posting; or
c) if it is sent in electronic form, when the email message enters the addressee’s information system (the email message will be deemed to have not entered the addressee’s information system if an error or out of office message is received and if it’s not sent to the correct Personnel.
12. CONFIDENTIALITY
12.1 Each party must:
a) keep all Confidential Information of the other party strictly confidential and not disclose it to any third party without the other party’s prior written consent;
b) only disclose Confidential Information of the other party to its personnel who need to know for the purposes of providing or receiving the Services, and who have expressly agreed to keep that information confidential; and
c) on request by the other party, immediately return to the other party or permanently delete or destroy, as the other party directs, all copies or records of the other party’s Confidential Information in its possession or control.
12.2 The confidentiality obligations in clause 12.1 do not apply to information:
a) that is or becomes legally in the public domain at the time of disclosure without a breach of this clause 12; or
b) required to be disclosed by a party by law, or the rules of a publicly listed stock exchange, provided you must (to the extent permitted by law) give us a reasonable prior opportunity to object to or reduce the obligation of disclosure.
12.3 On termination or expiry of these Conditions, each party must return or destroy all Confidential Information of the other party, and on request confirm that this has been done.
For the purposes of these Conditions, Confidential Information means all information of a party that is by its nature confidential, including information in relation to a party’s business operations, contracts, personnel, customers, marketing, sales, business plans, transactional data, financial data, trade secrets and other sensitive corporate or personal information. To avoid doubt, Our Data (and all reports and other deliverables containing Our Data) will be our Confidential Information.
13. PRIVACY & DATA SECURITY
13.1 To the extent you access or are provided with any Personal Information in performing the Services, you must:
a) comply with all relevant Privacy Laws; and
b) not transfer Personal Information outside Australia without our prior written consent.
For the purposes of these Conditions, Personal Information has the meaning given by the relevant Privacy Laws, and Privacy Laws means the Privacy Act 1988 (Cth) in Australia and the Privacy Act 1993 (NZ) and any other applicable privacy laws, including any determination, code or guideline issued under those laws in Australia or New Zealand.
13.2 Where you reasonably suspect or know of a security breach in relation to our Personal Information, you must promptly notify us in writing (within 48 hours) and provide us with regular updates in relation to your investigation and resolution of the security breach.
13.3 You must maintain, in accordance with good industry practice, appropriate administrative, physical, and technical safeguards:
(a) for protection of the security, confidentiality and integrity of any of our Confidential Information in your possession or control; and
(b) to prevent computer viruses from being introduced into or remaining within our systems.
14. INSURANCE
You must have, and must ensure that any sub-contractors have, public liability and workers’ compensation insurance in amounts reasonably acceptable to us. We may require evidence of that insurance at any time.
15. TERMINATION
15.1 We may, without penalty and without prejudice to any of our other rights, cancel our purchase order immediately by written notice if you:
a) breach these Conditions and fail to remedy the breach within 14 days of our notice of the breach to you;
b) become bankrupt or insolvent, unable to pay your debts as they fall due or enter into or become subject to any form of insolvency administration;
c) do anything which in our reasonable opinion has the potential to prejudice our reputation; or
d) notify us of an anticipated delay in the delivery of Goods or Services and we consider the delay will significantly affect our business.
15.2 We may cancel our purchase order in respect of Services at any time on seven days’ notice, provided that we will pay you for any Services performed prior to termination or a portion of the Price reasonably attributable to Services performed prior to termination.
15.3 Termination will not affect any rights accrued prior to termination.
16. ANTI-SLAVERY
16.1 You must at all times:
a) comply (and ensure your directors, officers, employees, agents, representatives, contractors and suppliers comply) with all relevant Anti-slavery Laws, and ensure that no forced labour, slavery, servitude or similar practices are in any way involved in supply of the Goods;
b) maintain appropriate policies and procedures designed to ensure your compliance with Anti-slavery Laws; and
c) supply all information and evidence reasonably requested by us concerning your compliance with this clause within 30 days of receiving a written request from us.
For the purposes of these Conditions, Anti-slavery Laws means all laws and regulations of the countries in which you do business which prohibit the use of slavery, servitude, forced labour, human trafficking or other similar practices, including without limitation the Modern Slavery Act 2018 (Cth), and Divisions 270 and 271 of the Criminal Code Act 1995 (Cth).
16.2 We (or an independent auditor appointed by us) may on reasonable notice audit you and inspect your premises and records to verify your compliance with this clause 11. You will cooperate in any such audit, including making your personnel available to provide assistance.
16.3 Without limitation to our other rights and remedies, breach of this clause 16 will entitle us to immediately terminate any agreement we have with you and cancel any purchase orders already placed.
17. GENERAL
17.1 Defined expressions bear their defined meaning wherever used in these Conditions, unless the context requires otherwise.
17.2 No failure or delay in exercising any right, power or remedy by a party operates as a waiver and any exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.
17.3 If a party comprises two or more persons, these Conditions apply to those persons jointly and each of them individually.
17.4 If any part of these Conditions is illegal or unenforceable, it will be severed from these Conditions and the remaining terms and conditions will continue in full force and effect.
17.5 We may set-off any amounts owed by us to you against amounts owed by you to us on any account whatsoever.
17.6 The terms and conditions set out in these Conditions apply to the exclusion of all others (other than statutory terms). Any terms which you include in a delivery receipt, invoice, or other ancillary document will not apply.
17.7 To the extent permitted by law, nothing in these Conditions is to be interpreted against a party solely on the ground that the party put forward or drafted that document. In these Conditions: (a) a reference to a statute includes subordinate regulations and any statute passed as a replacement (b) the singular includes the plural and vice versa; and (c) “includes” and “including” are examples only and not words of limitation.
17.8 To avoid doubt, the parties agree that the United Nations Convention on Contracts will not apply to these Conditions.
17.9 These Conditions are governed by:
a) for supplies in Australia – the laws of the State or Territory of Australia where our purchase order originated; and
b) for supplies in New Zealand- the laws of New Zealand where our purchase order originated.
You submit to the jurisdiction of the Courts of that State or Territory, or New Zealand, as applicable.