Vinidex Pty Ltd: Standard Terms and Conditions of Purchase
PURCHASE ORDER TERMS AND CONDITIONS
The following definitions apply in these terms;
Buyer means any or all of the following entities in Australia, as applicable:
Vinidex Pty Ltd; ABN 42 000 664 942
Vinidex Pty Ltd (Trading as Rodney Industries); ABN 42 000 664 942
Yatala Plastics Pty Ltd; ABN 84 010 720 886
Zezt Pty Ltd; ABN 30 609 589 808
Philmac Pty Limited; ABN 17 007 873 047
Goods means the products specified in the Order, except in a context where “Goods” means products specified in any quotation of the Seller. The supply of Goods under the Order may include both the purchase of Goods and/or the hire of Goods, as specified in the purchase order.
Government Agency means a government or government department or a court, port, transport or local authority or a person (whether autonomous or not) responsible for the administration of an applicable law, within Australia.
GST means the goods and services tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth.
Insolvency Event means, for a person, being in liquidation or provisional liquidation or under administration, having a controller (as defined in the Corporations Act 2001 (Cth)) or analogous person appointed to it or any of its property, being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand, being unable to pay its debts or otherwise insolvent, dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing its own affairs for any reason, taking any step that could result in the person becoming an insolvent under administration (as defined in section 9 of the Corporations Act), entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors, or any analogous event.
Order means the written purchase order issued by the Buyer to the Seller and expressly includes these terms and conditions, any specification issued by the Buyer and any other documents identified by the Buyer and referred to in the purchase order itself, including the Buyer’s Supplier’s Code of Conduct.
Seller means the person supplying the Goods and/or Services to the Buyer.
Services means the services specified in the Order, except in a context where “Services” means services that are specified in any quotation of the Seller.
“Supplier’s Code of Conduct” means the Aliaxis Supplier Code of Conduct, a copy of which can be found at; https://www.vinidex.com.au/ in the website footer under “Code of Conduct”.
Except as expressly stated in the Order, these terms apply to any agreement for the sale of Goods and/or provision of Services by the Seller to the Buyer.
The terms and conditions of the Order embodies the entire understanding of the parties and constitutes the entire agreement by the parties. The Order superseders any prior written or other agreement between the parties for the sale of Goods and/or provision of Services by the Seller to the Buyer.
No terms and conditions of sale of the Seller form part of the terms and conditions on which any Goods and/or Services are purchased. No terms stated by the Seller when accepting or acknowledging an Order are binding upon the Buyer unless accepted with consent in writing by a Director, Manager or Senior Officer of The Buyer.
Both parties acknowledge that the Seller is not the Buyer’s agent, employee, partner or joint venturer.
If an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing.
OFFICIAL PURCHASE ORDERS
The Buyer will not be bound by any Order unless it is issued by the Buyer on its official Order form.
The Seller accepts the Buyer’s Order, including these terms, by supplying the Goods or Services.
The Buyer may return, at the Seller’s expense and risk, any goods delivered that are not covered by an Order or by any written variation, including any quantity of goods greater than the quantity specified in the Order.
VARIATION OF PURCHASE ORDERS
The Buyer may vary an Order in writing at any time.
The Seller may claim any reasonable losses or additional costs incurred as a result of the Buyer’s variation, or claim any reasonable variation to the date for the delivery of the Goods or the completion of the Services needed as a result of the Buyer’s variation, but any claim must be made in writing within 7 days of the Buyer requiring the variation, and any claim outside that time limit is absolutely barred.
STATUTORY REQUIREMENTS AND SPECIFICATION
The Seller must ensure that the Goods and/or Services and their design, performance, fabrication, testing, packaging, loading on transport, delivery (and installation and commissioning when specified) are in accordance with the Buyer’s specification and with all applicable laws and all applicable requirements of any Government Agency.
PRICE AND PAYMENT
The price shown in the Order is the amount that the Buyer will pay to the Seller for the Goods or Services.
All prices are in Australian dollars, unless stated and agreed otherwise.
All prices are inclusive of GST (unless the Order states that the price is exclusive of GST).
The Seller must address invoices as shown on the Order. The Seller must state in the invoice the Order number and any details the Order requires to be stated in the invoice. The Seller must provide the Buyer with satisfactory evidence to enable the Buyer to verify the amount of the invoice.
The Seller may only submit an invoice to the Buyer upon the latter to occur, of the following:
upon confirming dispatch of the Goods in accordance with the Order, with a supporting signed dispatch docket forthcoming; or
prior to the dispatch of the Goods, if progress payment or payment in advance is agreed to by the Buyer in writing as stated on the Order; or
the completion of the Services; or
where progress payments are to be made for the provision of Services, on the last Business Day of each calendar month for Services performed by the Seller in that month.
If the Goods and/or Services provided by the Seller comply with the Order and an invoice has been prepared and submitted in accordance with the Order, the Buyer must pay each invoice within 60 days after the end of the month in which the invoice is received by The Buyer, except where the Buyer disputes the invoice in which case Buyer will pay the undisputed part of the relevant invoice (if any) and dispute the balance in accordance with clause 27. If the resolution of the dispute determines that the Buyer is to pay an amount to the Seller, the Buyer will pay that amount to the Seller within 30 days of the date of the determination.
Unless otherwise specified, the price includes one set of standard instructions. The Seller must on request by the Buyer supply further copies of instructions and certified outline drawings for the Goods and/or Services on payment of the Seller’s reasonable copying charges.
The price is inclusive of all costs as per the terms of the Order. This may include costs in supplying the Goods and/or Services such as packing, packaging, insurance, delivery, and the cost of any items used or supplied in conjunction with the Services.
INSPECTION DURING MANUFACTURE
The Seller must supply manufacturing schedules and progress reports to the Buyer as requested by the Buyer.
The Buyer may itself or through an agent:
inspect all or part of work specified in an Order (including any work sub-contracted by the Seller) prior to and during manufacture of Goods until final acceptance of Goods by the Buyer; and
reject any work which does not comply with the terms applying to the sale.
PACKAGING AND LABELLING
The Seller must ensure that, and is liable for any loss or damage caused if it does not ensure that:
Goods are suitably packed to avoid damage during loading, transit, delivery, unloading or storage; and
Goods are packed and transported in accordance with any applicable regulations and industry codes and any reasonable safety or environmental requirement of the Buyer.
The Seller must pay any increase in freight charges arising from the Seller’s failure to follow any transport instruction in the Order or to properly describe the goods being transported.
The Seller must assist the Buyer in obtaining documents or information required for the resolution of any transport dispute.
Packages and loose pieces must be clearly marked as shown on the face of the Order and must indicate gross weight.
The Seller must label all packages in accordance with the requirements of all relevant laws.
All Goods which are dangerous or hazardous Goods must be clearly marked with or accompanied by all information required by any relevant legislation such as the UN Number, Class Number and the Packing Group and must be accompanied by the appropriate manifest and emergency procedure guide.
The Seller must clearly mark all delivery documents with the Purchase Order number and must ensure those documents accompany the Goods to the place of delivery specified in the Order. A delivery docket and/or service docket should accompany each delivery to the Buyer, or subsequently the Buyer reserves the right to reject the delivery at no extra expense to the Buyer.
DELIVERY AND PERFORMANCE
Unless otherwise agreed by the Buyer and the Seller in writing, the Seller must deliver all Goods:
- free of carriage and handling charges to the place of delivery specified in the Order; and
- on the delivery date specified in the Order.
Unless otherwise agreed by the Buyer and the Seller in writing, the Seller must perform the Services by the date specified in the Order.
Delivery must be acknowledged by a delivery docket and/or service docket being signed off by an employee of the Buyer or other such person(s) as agreed to between both parties, however this does not constitute acceptance of the goods or services which remain subject to subsequent inspection by the Buyer.
RISK AND TITLE
The Goods remain at the Seller’s risk until they are delivered to, unloaded and (if applicable) installed at the place for delivery, at the date and time for delivery (if applicable), specified in the Order.
The Seller must insure the Goods for full replacement value up until delivery or, if the Seller is also installing the Goods, until they are installed at the place of delivery specified in the Order.
Title to the Goods passes to the Buyer on delivery.
The Seller must not claim any lien or security interest (as defined under the Personal Property Securities Act 2009 (Cth) (PPSA)) over the Goods and must defend and indemnify the Buyer against any lien, security interest, attachment or third party claim upon the Goods.
The Seller must do all things (including executing all documents at any time) and provide all information reasonably required by the Buyer to enable the Buyer to lawfully register any charge or other interest in the Goods (including registration on the Personal Property Securities Register (PPSR)) so as to ensure The Buyer’s rights under the Order are not adversely affected.
PROPERTY IN GOODS PART PAID FOR
If prior to delivery the Buyer pays to purchase Goods or makes a part payment for the Goods, property in the Goods (or if the Goods are incomplete, property in the partly completed Goods and any materials and parts to be used in their manufacture or assembly and then on hand) passes to The Buyer and the Seller must clearly mark them with the Buyer’s name and the Order number.
If the Buyer considers that the Seller has failed, or indicated that it may be unable, to fulfil any obligation under the terms applying to the Order (including delivery of the Goods by the delivery date and performance of the Services by the date specified in the Order), the Buyer or its agent may at any time enter the Seller’s land or premises and remove the Goods and any materials or parts to which the Buyer has title.
Where the Seller is in the possession of Goods that have been paid, or partly paid for by The Buyer the Seller agrees that these terms create a security interest in favour of the Buyer which the Buyer may register on the Personal Property Securities Register. the Buyer contracts out of all provisions of the PPSA that can be contracted out of.
Time is of the essence for the performance of the Order by the Seller.
The Seller must advise the Buyer in writing, immediately the Seller foresees any delay in performance of the Order.
If the Seller does not perform its obligations in a timely fashion, the Buyer may, in addition to any other right, require the Seller to do, at the Seller’s expense, whatever is needed to ensure delivery of the Goods and/or performance of the Services on or as close to the specified date as possible, for example, by paying premium freight charges or undertaking work outside of ordinary operating hours.
INSPECTION AND REJECTION OF GOODS AND/OR SERVICES
If the Buyer pays for the Goods before they arrive at the place of delivery specified in the Order, the Goods are ordered subject to inspection by the Buyer upon arrival.
The Buyer must have a reasonable time to inspect the Goods after delivery and/or the Services after their performance. The signing of delivery receipts or payment of invoices before inspection does not constitute acceptance of the Goods or the Services.
If upon inspection the Goods and/or the Services do not comply in every way with the Order and the terms applying to the Order, the Buyer may at its option either:
reject the Goods; or
require the Seller at no cost to the Buyer to make good within 5 Business Days any loss, damage or defect in the Goods and/or the Services to the satisfaction of the Buyer.
No inspection by the Buyer during the manufacture of the Goods or prior to their dispatch will affect the Seller’s warranties.
Even after it has paid for any Goods and/or Services, the Buyer may claim against the Seller for unsatisfactory, defective or damaged Goods and/or Services.
The Buyer is not taken to have accepted any Goods and/or Services merely because the Buyer has inspected or examined them or taken possession of them.
If there is a shortfall in the quantity of Goods delivered, the Buyer may either:
require the Seller to credit the Buyer for the shortfall; or
within 5 Business Days of delivery require the Seller to deliver the outstanding Goods, which the Seller must promptly do at its own cost.
The Seller represents and warrants that:
the Seller has good title to the Goods and that they are free of encumbrances, security interests, liens and reservation of title;
the Goods correspond to their description and to any sample;
the Goods and/or Services conform in every way with any relevant specification including (without limitation) any performance requirement for the Goods or Services identified in the specification;
the Goods and/or Services comply with any applicable laws and any industry standards and all applicable requirements of any Government Agency;
the Goods are of good and acceptable quality;
the Goods are new (unless otherwise specified in the Order);
the Goods and/or Services are free from defects in materials, workmanship and design;
the Services and the results of the Services will be rendered with due care and skill and be of high quality and workmanship and otherwise satisfactory to the Buyer; and
the Goods and/or Services are fit for the Buyer’s purpose or if the Buyer’s purpose is not known, for the purposes for which the goods and Services are commonly used.
The Seller must, within a reasonable period after notification by the Buyer, remedy any defect, error, omission or default in the Goods or the Services.
If the Seller fails to remedy any defect, error, omission or default in the Goods or the Services to the Buyer’s reasonable satisfaction, the Buyer may remedy that defect, error, omission or default and any costs incurred by the Buyer in doing so shall be a debt due and owing by the Seller to the Buyer.
The Order does not exclude or in any way limit other warranties in the terms applying to the Order or implied by law.
The Seller must provide or procure for the Goods and/or Services, all usual warranties and all trade warranties, and any warranties, which the Buyer specifically requests.
PERFORMANCE OF THE SERVICES
The Seller must, in providing the Services or performing works in connection with the installation, fitting, delivery, hire or commissioning of the Goods:
ensure the Services or works are performed diligently, competently, with due care and skill and in a proper and professional manner;
supply all labour, tools, equipment and materials needed to complete the Services or works;
co-operate, liaise and co-ordinate the Services with the Buyer’s operations and any other parties providing Goods and Services to the Buyer so as to not interfere with, impede or delay any other work in progress on the Buyer’s premises or site;
indemnify the Buyer against any loss, damage, claim or liability in connection with the performance of the Services or works or the presence of the Seller’s employees or agents on the Buyer’s premises;
obtain and comply with every permit, licence and approval, and give every notice, required to comply with applicable law and with any requirement of a Government Agency;
comply with, and ensure that the Seller’s employees, agents and subcontractors comply with, the Buyer’s site procedures including its work health and safety requirements, all applicable industrial awards and agreements and the reasonable directions of the Buyer and its authorised officers; and
comply with all applicable laws and standard or codes which apply to the Services or the works.
The Seller must indemnify the Buyer, its employees, agents and contractors for any loss, damage, expense, claim or liability suffered or incurred by the Buyer, its employees, agents and contractors in connection with:
a breach by the Seller of any warranty or condition contained in these terms;
a breach by the Seller of any provision of any Order;
the supply of defective Goods or Services; and
personal injury or death or loss of or damage to any property (including loss of or damage to the Buyer’s property) arising out of or as a consequence of the Seller’s supply of Goods or performance of the Services under the Order.
This clause 18 shall survive the termination or completion of the Order.
CANCELLATION OF ORDERS
If the Seller breaches any provision of the Order, or if an Insolvency Event occurs in relation to the Seller, the Buyer may at its option and without prejudice to any of its other rights, cancel the Order to the extent that the Order relates to Goods which have not yet been delivered to the Buyer, any Goods on hire to the Buyer and/or Services which have not been provided. The Seller has no claim for the price of those Goods, remaining period of hire on hired Goods and/or Services or for any compensation for that cancellation.
Even if clause 19.1 does not apply, the Buyer may at any time cancel any Order for Goods and/or Services, but:
the Buyer must pay for any part of the Goods delivered, hire period that has elapsed for Goods hired and/or Services provided prior to the cancellation and accepted by the Buyer;
if the Seller has prior to the cancellation shipped any Goods which have not been delivered to the Buyer at the time of cancellation, the Buyer may either accept delivery of those Goods, or return them to the Seller at the Buyer’s expense (and the Seller has no claim for the price of those Goods or for any compensation for that cancellation); and
if the Goods are unshipped at the time of cancellation, the Seller has no claim for the price of those Goods or for any compensation for that cancellation, except to the extent that the Goods are manufactured or fabricated to the Buyer’s specification or to a specification prepared by the Seller for the Buyer, and for those Goods:
on receiving the notice of cancellation, the Seller must cease manufacture in accordance with and to the extent specified in the notice and immediately do everything possible to mitigate any costs incurred;
the Buyer must pay to the Seller any expenditure reasonably incurred by the Seller prior to the date of the cancellation which is directly attributable to the Buyer’s Order and which the Seller is not able to recoup in some other way; and
title to and property in materials or incomplete Goods passes to the Buyer upon payment and the Seller must upon the Buyer’s demand and at the Seller’s cost deliver to the Buyer any such property and/or incomplete Goods.
If the Buyer terminates the Order, the termination is without prejudice to any rights or liabilities of the parties under the Order or at law which have accrued on or before the date of termination.
If the Seller does not deliver the Goods and/or perform the Services by the specified date, or supplies any Goods and/or Services, which in the opinion of the Buyer do not comply with every requirement of the terms applying to the Order, the Buyer may purchase or hire replacement goods from a third party or engage another contractor to perform the Services and the difference (if any) between the cost of the replacement goods or services and the price of the Goods or Services (as applicable) will be a debt due and owing from the Seller to the Buyer.
The Seller must maintain the confidentiality of every enquiry, quotation and tender concerning the supply of Goods and/or Services by the Seller to the Buyer, and of any Order.
The Seller must obtain the Buyer’s prior written consent before disclosing to any third party anything which relates to the supply of Goods and/or Services and drawings and/or specifications related to the Buyer.
The Seller must not without the prior written consent of the Buyer disclose to any third party the terms of any Order or the fact that it supplies Goods and/or Services to, or has any relationship with, the Buyer.
This clause 20 shall survive the termination of these terms or completion of any Order.
INTELLECTUAL PROPERTY RIGHTS
The Seller warrants that the sale or use of any Goods and/or Services by the Buyer will not infringe or contribute to the infringement of any intellectual property rights (including rights to patents, designs, copyright, trademarks, trade names, circuit layouts or other protected right) conferred under statute, common law or equity in any country.
The Seller grants the Buyer an irrevocable, royalty free, non-exclusive, fully-assignable, perpetual license to use all intellectual property rights associated with the Goods and/or the Services and any documentation provided pursuant to the Order for the installation, use, support, repair, maintenance and alteration of the Goods or other works.
The Seller must indemnify the Buyer against any loss, claim, damage or expense arising out of or in connection with any claim by a third party that its intellectual property rights have been, or will be, infringed by the Buyer’s use of the Goods and/or Services.
If Goods are to display any trade names, trademarks, specifications, artwork or other material supplied by the Buyer (“Buyer Materials”) , the Seller may use such Buyer Materials solely for the purpose of packaging and labelling the Goods, or as otherwise permitted in writing by the Buyer in writing. The form, design, colour, text and manner and use of the Buyer materials will be subject to prior written approval of the Buyer. When the Buyer Materials are used;
a statement or symbol will also be provided which legibly shows unqualified ownership of the Buyer Materials by the Buyer;
the Seller will not affix its name or logo or any other brand, name, mark or logo to the Goods except as agreed to in writing by the buyer;
such Buyer Materials may only be used in a manner required or directed by the Buyer in writing from time to time and;
the Supplier will cease use of the Buyer Materials upon termination of these terms and conditions or otherwise upon notice from the Buyer.
The Seller must pay all Australian import duties and charges (including GST), as applicable, payable on the Goods or components and materials imported by it into Australia as applicable, for use in manufacturing the Goods, and all special duties, such as anti-dumping duties or countervailing duties unless otherwise specified in the incoterms agreed to between the Buyer and Seller in the Order.
The Seller must maintain adequate insurance including public liability, workers’ compensation (including common law liability), automotive, freight liability, product damage insurance and other insurances required by law or reasonably expected or required by the Buyer. Unless otherwise agreed, insurance coverage will be for no less than $10,000,000 in respect of each claim. If specified in the Order, the Seller must also affect a professional indemnity insurance policy on terms and for amounts specified by the Buyer.
At the Buyer’s request, the Seller must produce evidence that the Seller is maintaining the insurances required by clause 23.1.
The Buyer may take out and maintain any policy of insurance required by clause 23.1 if the Seller fails to do so. Any cost or expense incurred by the Buyer in taking out and maintaining any policy of insurance under this clause shall be a debt due and owing by the Seller to the Buyer.
LIABILITY OF BUYER
The Buyer is not liable for any injury, damage or loss sustained by the Seller or by any employee or agent on the Buyer’s premises or at any place of delivery, performance or elsewhere.
The Seller must indemnify the Buyer against, and releases the Buyer from, any claim, cost or demand in connection with any such injury, damage or loss or any injury, damage or loss in connection with the Order or the transaction contemplated by the Order.
The Seller must not assign its rights or obligations in relation to the Order without the prior written consent of the Buyer.
The Seller must not subcontract the whole or any part of the Services or the production, manufacture or supply of the whole or any part of the Goods without the prior written consent of the Buyer.
The Buyer’s consent to the Seller subcontracting its rights or obligations does not relieve the Seller of any of its obligations under the Order.
The Buyer may dispose of, declare a trust over or otherwise create an interest in its rights under this document without the consent of any other party, and may disclose to any potential holder of the right or interest any information relating to this document or any party to it.
This document can only be amended, supplemented, replaced or novated by another document signed by the Seller and the Buyer.
If any dispute arises in connection with the Order which cannot be settled amicably between the Buyer and the Seller, either party may give written notice of the dispute to the other party.
Within 14 days after service of a notice of dispute, the Buyer and the Seller shall confer at least once to attempt to resolve the dispute and failing resolution of the dispute to explore and if possible, agree on methods of resolving the dispute by other means. At any such conference each party shall be represented by a senior manager having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved or if at any time either party considers that the other party is not making reasonable efforts to resolve the dispute, either party may commence litigation proceedings.
In the event of a dispute, the Buyer and the Seller must continue to comply with their obligations under the Order.
GST ON CLAIMS
If the Seller provides a payment for or any satisfaction of a Buyer’s claim or a Buyer’s right to claim under or in connection with this document (for example, for a breach of any warranty or for indemnity or for reimbursement of any expense) that gives rise to a liability for GST, the Seller must pay, and indemnify the Buyer on demand against the amount of that GST.
If the Buyer has a claim under or in connection with this document for a cost on which the Buyer must pay an amount for GST, the claim is for the cost plus the amount for GST (except any amount for GST for which the Buyer is entitled to an input tax credit).
If the Buyer has a claim under or in connection with any Order whose amount depends on actual or estimated revenue or which is for a loss of revenue, revenue must be calculated without including any amount received or receivable as reimbursement for GST (whether that amount is separate or included as part of a larger amount).
These terms will be governed by and construed in accordance with the laws of the Buyer, New South Wales. The Seller irrevocably submits to the exclusive jurisdiction of a competent court of that state.
A right of Buyer may only be waived in writing, as signed by the Buyer.
No other conduct of the Buyer (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right.
A waiver of a right by the Buyer on one or more occasions does not operate as a waiver of that right if it arises again.
The exercise of a right by the Buyer does not prevent any further exercise of that right or of any other right.
The Order contains the entire agreement between the parties about the supply of the Goods and/or Services. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by the Order and has no further effect.
No terms and conditions of sale of the Seller form part of the terms and conditions on which any Goods and/or Services are provided. No terms stated by the Seller when accepting or acknowledging an Order are binding upon the Buyer unless accepted with consent in writing by a Director, Manager or Senior Office of the Buyer.
Any right that the Buyer may have under the Order is in addition to, and does not replace or limit, any other right that the Buyer may have.
Any provision of the Order which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make the Order enforceable, unless this would materially change the intended effect of the Order.
The Buyer reserves the right to change the terms and conditions as set out in this document at any point in time.
Any notice required to be given under this contract shall, if the party is a Company, be signed by any person being or purporting to be a Director, Manager, or Senior officer of the party giving it, and if not a Company, then by the party himself and shall be deemed to have been given on the second day following posting if sent by prepaid mail in an envelope addressed to the registered office or principle place of business or last known address as the case may be of the party to whom the notice is being sent.
Any amount payable by the Seller to the Buyer or any amount to be borne by the Seller in connection with the Order may be set off by the Buyer against any amount owing by Buyer to the Seller, and the Buyer may recover any net amount as a debt due to the Buyer.
WORKPLACE HEALTH AND SAFETY and ENVIRONMENT
The Seller must comply with all applicable environmental, workplace, health and safety laws and regulations, together with all applicable industry standards in Australia, support a precautionary approach in this respect, adopt initiatives to promote environmental responsibility, and encourage environmentally friendly technologies.
The Seller must be committed to the improvement of the health and safety of its employees and operations and take all reasonable and necessary actions to prevent accidents and injuries, analyse and minimise health and safety risk exposures.
SUPPLIER’S TERMS OF SALE DO NOT APPLY
Any right that the Buyer may have under the Order is in addition to, and does not replace or limit, any other right that the Buyer may have.
Any provision of the Order which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make the Order enforceable, unless this would materially change the intended effect of the Order.
The Order contains the entire agreement between the parties about the supply of the Goods and/or Services. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by the Order has no further effect.
No terms and conditions of sale of the Seller form part of the terms and conditions on which any Goods and/or Services are purchased. No terms stated by the Seller when accepting or acknowledging an Order are binding upon Buyer unless accepted with consent in writing by a Director, Manager or Senior Officer of the Buyer.
TOOLING, FITTINGS, JIGS & RELATED PLANT AND EQUIPMENT
All tooling, fittings, jigs and related plant and equipment owned, purchased or acquired at the expense of the Buyer and supplied to the Seller for use in production of Goods (“Tooling”) are and will remain the property of the Buyer.
The Seller acknowledges that in supplying the Tooling, the Buyer makes no representation as to its fitness for purpose nor that it is free from defects.
The Seller will not use the Tooling for any purpose other than for the supply of Goods under the terms and conditions and the Seller will not sell agree to sell lease, mortgage, pledge, assign, convey or parley with possession, allow any mortgage, charge or lien to exist, alter, scrap or otherwise dispose or deal with the Tooling, without first obtaining the Buyer’s express written consent.
The Seller will ensure that the Tooling is only operated and maintained by properly trained personnel and that it is operated with all safeguards and warnings in place at all times. The Seller will operate tooling at its own risk, without liability to the Buyer.
The Buyer reserves the right, upon notice, to enter the Seller’s premises to inspect the Tooling, which, unless otherwise agreed, is to be kept by the Seller in good order and repair, and to take possession of, or remove, any of the tooling on demand, at any time. On receipt of a request for the return of the tooling, the Seller will prepare it for shipment and have it delivered to the Buyer at the Buyer’s expense, in the same condition as originally received by the Seller, reasonable wear and tear excepted.
If, during retention of the Tooling, it is identified that an abnormal refurbishment is required, agreement with the Buyer must precede any commitment of expense.
The Seller will safeguard and insure all Tooling on its premises against loss, damage and fire, and against any other hazards for which the Seller would normally insure its own tooling. The Seller must replace the Tooling, in value or in kind, if it is lost, damaged or destroyed on its premises. The Certificate of Currency in respect of any insurance shall be produced to the Buyer upon demand.
SURPLUS AND SCRAP
Where raw materials are supplied by the Seller at its expense, all surplus or scrap will remain the Seller’s property and is to be returned to the Seller at its expense upon Order fulfillment, unless agreed otherwise.
Where raw materials are supplied by the Seller at the Buyer’s expense, or supplied by the Buyer at its expense, all surplus or scrap will be held and retained by the Seller at its expense upon Order fulfillment, unless otherwise agreed in writing.
HUMAN RIGHTS AND MODERN SLAVERY
The Seller must:
comply with all applicable human rights related laws and regulations in force in Australia, including the Commonwealth Modern Slavery Act 2018;
have and maintain throughout the term of the Order its own policies and/or procedures to ensure its compliance with applicable human rights related regulations, including due diligence and remediation processes;
not engage in any activity, practice or conduct that would constitute an offence under human rights related regulations if such activity, practice or conduct were carried out in Australia;
comply with any requests that are required to enable the Buyer to meet its obligations under human rights related regulations and/or align practices with human rights related international norms of behaviour including permitting the Buyer to conduct audits and/or reviews of the Seller’s operations and supply chains, subject to providing the Seller with prior written notice; and
notify the Buyer as soon as it becomes aware of any actual or suspected occurrence of human rights violation in any of its operations and supply chains.
“Human rights violations” for the purposes of this clause 38, includes the following:
any Modern Slavery practice described in the Commonwealth Modern Slavery Act 2018 and Appendix 1 of the Guidance for Reporting Entities. This includes forced labour, servitude, slavery, debt bondage, human trafficking, deceptive recruiting for labour or services, forced marriage and the worst forms of child labour.
any breach of labour standards applicable within Australia and included in Australian Labour legislation. This includes correct payment of rates, entitlements, fair roster and shifts, penalty rates, superannuation, holiday pay.
any other breach of labour rights as per the International Labour Organisation’s eight fundamental conventions. This includes freedom of association and the effective recognition of the right to collective bargaining; the elimination of all forms of forced or compulsory labour; the effective abolition of child labour; and the elimination of discrimination in respect of employment and occupation.
Non-compliance with Human Rights obligations
The Buyer reserves the right to terminate the Order if the Seller fails to perform or observe any of its obligations under the Order relating to Human Rights, provided that before terminating the Order, the Buyer takes the following steps:
Gives the Seller written notification of the breach/s with a direction to rectify the breach together with a written warning that a failure to rectify the breach/s within a specified period of time, acting reasonably, or any subsequent breach, will lead to more serious disciplinary action, which may include termination of the Order; and
If there is a further breach of the Order, with a prior written warning having been given or if the previous breach/s remains unrectified, the Buyer may immediately terminate the Order.
Where either the Seller or Buyer is unable to carry out its obligations either wholly or in part by reason of a Force Majeure Event and that party;
gives the other party immediate notice of the nature, expected duration and obligation affected; and
uses all reasonable endeavours to mitigate the effects on that party’s obligations; and
performs that party’s obligations under these terms despite the Force Majeure Event, then that obligation is suspended so far as it is affected by the Force Majeure Event during its continuance.
If the Force Majeure Event continues for more than an aggregate of 20 days in any 12-month period than the party not affected by the Force Majeure Event may terminate Order(s) on written notice with immediate effect.
The Supplier confirms having procedures and controls in place to ensure compliance with customs, export control laws and sanctions laws and agrees to provide the Company with any information necessary to comply with such regulations.
In addition, the Supplier undertakes that it will not (directly or indirectly) sell, provide, ship or otherwise procure to the Company any products manufactured by / in, purchased or obtained from;
Individuals and/or entities targeted by financial sanctions administered by the European Union, the United States and/or any other relevant state;
Countries or regions subject to such sanctions, including but not limited to Belarus, Crimea and Sevastopol, Cuba, Iran, Libya, North Korea, Russia, South Sudan, Sudan, Syria, Venezuela or Yemen, or the so-called Donetsk People’s Republic and Luhansk People’s Republic, without having obtained prior written consent of the Company.