Purchase Order – Standard Terms & Conditions
1.1 Unless the context otherwise indicates:
Buyer means Elenium Automation Pty Ltd (ABN: 65139 270205)
Dollars or $ means Australian dollars (unless expressly stated otherwise).
Intellectual Property means all intellectual property rights, whether registered or unregistered, including without limitation, copyright, trademarks, patents, design rights, data, inventions, trade secrets, know-how, rights in relation to any circuit layout, product, work, discovery, process, word, phrase, symbol, design, application or other thing capable of protection and the right to have confidential information kept confidential.
Latent Defects means any deficiency in design, materials or workmanship which could not readily have been discovered prior to or on delivery and which causes the Supplies to function incorrectly, or to differ from the specification set out or referred to in the Order.
Law means any statue, regulation, by-law, ordinance or subordinate legislation in force from time to time in any jurisdiction applicable to the transactions under these Terms.
Notified Bodies means a conformity assessment body authorized to perform defined conformity assessment activities within the scope of the European Directives.
Order means these Terms and the associated purchase order issued by the Buyer, including any document, plan or specification incorporated by reference in the purchase order.
Pre-existing Intellectual Property means Intellectual Property that already exists on the date of the Order, or subsequently comes to exist otherwise than in connection with the Order.
Price means the price to be paid by the Buyer to the Supplier for the Supplies, as specified in the Order.
Supplier means the person, company, partnership, joint venture, firm, or other ntity specified in the Order as supplying the Supplies.
Supplies means the subject matter of the Order and includes all goods, services, products, materials, parts, components, assemblies, tools, dies, data, designs and information referred to in the Order relating to the Supplies and/or their use, operation, installation, and maintenance) or any other items described in the Order, including (without limitation) raw materials, spares, incomplete items and work-in-progress.
Terms means these Purchase Order – Standard Terms & Conditions.
2. TERMS OF ENGAGEMENT
2.1 These Terms apply to all Orders placed by the Buyer whether relating to a purchase or a series of purchases, the rental of goods or the provision of services.
Subject to clause 2.7, the Order contains the entire agreement of the Buyer and the Supplier in relation to the Supplies and can only be varied in writing signed by both parties. Any terms or conditions proffered by the Supplier shall not form part of the Order unless specifically incorporated by reference into the Order.
2.2 Any provision of Supplies must be the subject of an Order issued by the Buyer.
By accepting the Order, the Supplier acknowledges that it has received all information required to fulfil its obligations.
2.3 By accepting the Order, for Suppliers who are manufacturing parts against Buyer’s drawings or specifications, the Supplier acknowledges and agrees to announced and unannounced audits by the Buyer, Notified Bodies or Competent Authorities as required.
In the event of any conflict, ambiguity or inconsistency between these Terms, the associated purchase order and any agreement signed by the Buyer and the Supplier for the provision of the Supplies (if applicable), the following will prevail in descending order of priority to the extent of the conflict, ambiguity or inconsistency:
a. the attached purchase order (including any document, plan or specification incorporated by reference in it);
any agreement signed by the Buyer and the Supplier for the provision of the Supplies; and
b. these Terms.
2.4 The Buyer may at any time, by written request, propose changes to the specification of the Supplies, quantity or delivery date. The Supplier shall advise the Buyer in writing of any effect on the price or delivery date that such change would occasion and the Buyer shall instruct the Supplier in writing as to whether to proceed with the proposed change. The Order shall not be varied except with the express written agreement of the Buyer.
The Buyer reserves the right to cancel the Order in accordance with clause 11.
3. PACKAGING AND SHIPPING
3.1 Packaging must: (i) conform to any specifications set out or referred to in the Order; (ii) conform to instructions given by the Buyer from time to time; and (iii) comply with usual industry practice, applicable customs, export, import, quarantine and other applicable Laws and requirements, including where relevant, those governing the dispatch and/or transportation of hazardous goods or cargo.
All packaging must prevent damage or deterioration of the Supplies in the course of loading, transit (including storage in transit) and unloading.
3.2 Packing and delivery slips or advice notes shall accompany all deliveries of the Supplies and must include the Buyer’s Order number.
In the event that the Buyer provides a written request for inspection of the Supplies prior to delivery, the Supplies are not to be dispatched from the Supplier’s premises before an approved inspection is carried out. Any such inspection shall not constitute final acceptance of the Supplies by the Buyer until received by the Buyer.
3.3 Supplies shall be shipped in one lot unless the Order provides for delivery in instalments or unless otherwise agreed by the Buyer.
4. DELIVERY, TITLE AND RISK
4.1 Unless otherwise specified in the Order, the Supplier shall deliver all Supplies at its expense undamaged to the delivery address specified in the Order during the Buyer’s normal business hours, unless otherwise notified in writing by the Buyer. The Supplier shall ensure that a description of the goods, their quantity, any applicable part numbers and the Order number are visible upon delivery.
Time is of the essence for the performance of the Supplier’s obligations and the Supplier shall take all necessary steps to avoid or reduce any delay in delivery. The Supplier must inform the Buyer as soon as it becomes aware of any delay or potential delay in the delivery of the Supplies. The Buyer may reject Supplies and cancel the Order or any part of it where the Supplies are not delivered or performed on time. In such an event, the Supplier shall, at its own cost and risk, organise the return to the Supplier of any Supplies rejected by the Buyer.
4.2 Subject to clause 4.4, ownership of and risk in the Supplies shall pass to the Buyer upon completion of delivery to the Buyer. Delivery of the Supplies is completed when the Supplies are in the place nominated by the Buyer on the Order or in writing as the place of delivery and a person authorised by the Buyer has signed a delivery docket acknowledging receipt of the Supplies in satisfactory condition.
Where the Order provides for progress payments prior to delivery, ownership in the Supplies, including unfinished Supplies, shall pass to the Buyer upon the first progress payment being made. Risk in the Supplies shall remain with the Supplier until delivery.
4.3 Delivery of the Supplies is to be in accordance with the Order and at the time nominated by the Buyer in the Order or otherwise stipulated by the Buyer. The Buyer may at any time amend the times and/or manner of delivery of the Supplies.
Supplies delivered subject to a shelf life must have a substantial amount of shelf life remaining upon delivery, sufficient for the purpose for which the Supplies are required.
4.4 The Supplier shall maintain an effective quality assurance system for control of material quality, assembly, testing, packaging and shipping.
The Supplier shall notify the Buyer of any changes in the Supplies prior to any implementation of any changes that affect the ability of the Supplies to meet the specified Order requirements.
5. PRICING AND PAYMENT
5.1 Unless otherwise stated in the Order, the Price is fixed, is not subject to exchange rate fluctuations and includes the cost of packaging and delivery.
The Price includes any applicable Goods and Services Tax, excise, consumption or other applicable tax or duty unless otherwise specified in the Order.
5.2 Invoices are payable within the period stipulated in the Order, or in the absence of such a stipulation, 30 days from end of month after receipt of a correctly rendered invoice. Incomplete invoices will not be processed.
Invoices are to be issued to the Buyer’s address as stated in the Order and are to include the corresponding Order reference number and identification details of the Supplies. Invoices must be provided in accordance with the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
5.3 The Buyer may query any invoice presented by the Supplier and require correction of any error, whether or not the invoice relates to a payment already made or purports to set a time limit for raising queries.
The Buyer reserves the right to deduct or set off amounts owed by the Supplier to the Buyer from any monies owed by the Buyer to the Supplier.
6.1 Unless agreed otherwise, for a period of 12 months from the later of the date of: (i) delivery; (ii) acceptance; and (iii) installation and/or use of the Supplies, and for a further period of 12 months thereafter in the case of Latent Defects, the Supplier warrants to the Buyer that:
a. notwithstanding any inspection by the Buyer or its agent and despite delivery of the Supplies, the Supplies are:
i. of merchantable quality; and
are fit for the purposes for which the Buyer proposes to use the Supplies (the Supplier being deemed to know the purposes for which the Buyer proposes to use the Supplies and acknowledges that the Buyer is relying on the Supplier’s judgment that the Supplies are reasonably fit for those purposes); and
ii. conform to the requirements of the Order, including any technical or operational requirements advised by the Buyer; and
are free from all defects and deficiencies whether in design, performance, materials or workmanship; and
iii. correspond to any samples supplied by the Supplier to the Buyer; and
are newly manufactured, except where otherwise agreed with the Buyer.
b. the Supplies, their design, construction, ingredients, quality and packaging comply with all relevant Laws and requirements in force at the places of manufacture, shipment and delivery; and
the Supplies do not infringe the Intellectual Property rights of any person; and
c. that none of the Supplier, its subcontractors or any other person has a lien, mortgage, charge or other security interest of any type in or over any of the Supplies.
6.2 The Supplier shall, without delay and at Supplier’s risk and expense, repair, replace or re-perform (at the Buyer’s discretion) non-conforming or defective Supplies in the event of a breach of clause 6.1 and the terms of this clause 6 shall apply to any such repaired, replaced or re-performed Supplies. Alternatively, the Buyer may, at its option, either (i) reject the Supplies (in whole or in part); (ii) cancel the Order, or any part of it; or (iii) delay acceptance of the whole or any part of the Order.
If the Supplier fails to rectify a defect or non-conformance (including any Latent Defect) in the Supplies within the time specified by the Buyer, the Buyer may have such defect or non-conformance rectified by a third party and recover the costs from the Supplier.
6.3 The Supplier warrants to the Buyer that, wherever relevant, adequate spare parts and services will be available to the Buyer at a reasonable cost for a period of 5 years from the date of completion of the Order by the Supplier.
7.1 The Supplier hereby agrees to indemnify and hold harmless the Buyer in respect of all actions, claims, proceedings, demands, losses, costs, charges and expenses (including any indirect, incidental, special or consequential loss, any loss of revenue, loss of profits, loss of business opportunities, loss of anticipated savings, damage to goodwill and damage to reputation and also including the cost of settling any pending or threatened proceedings, including legal expenses on a solicitor and client basis) arising from or incurred by reason of:
a. breach of the Order or negligence by the Supplier;
loss or damage to property or injury to, or death of, persons caused or contributed to directly or indirectly by the Supplier in connection with the Order or the Supplies;
b. actual or alleged infringement or breach of any Intellectual Property anywhere in the world arising out of or resulting from the sale or use of the Supplies or their incorporation in other goods or materials;
any claim made against the Buyer by any third party arising directly or indirectly from or as a result of the Supplier’s failure to deliver the Supplies in accordance with the requirements of the Order;
c. any breach of clauses 6.1 or 6.2 by the Supplier;
defective goods, workmanship, design or services supplied or provided by the Supplier pursuant to the Order; or
d. any breach by the Supplier of clause 13.
7.2 Each indemnity in this Order is a continuing obligation and survives the termination of this Order.
8.1 For the purpose of this clause “Proprietary Information” means all information, documents, data and materials in whatever form, disclosed or to be disclosed by the Buyer to the Supplier in connection with the Order including (without limitation) pictures, plans, models, samples, mock-ups, specifications, blueprints, electromagnetic reproductions, performance details and requirements, sub-assembly and assembly drawings, costs, lists, instructions, reports, know-how, trade secrets, manufacturing data, software, models and intellectual or industrial property.
8.2 Supplier hereby covenants with the Buyer that the Proprietary Information:
a. must not, without the prior written consent of the Buyer, be disclosed, revealed, copied, published, reproduced, or in any way used for any purpose other than for performing the Supplier’s obligations under the Order; and
will be kept protected, in a secure place and in strict confidence; and
b. will, on request by the Buyer, be returned to the Buyer (together with any copies of material containing the Proprietary Information and any records containing references to it), or destroyed in the manner requested by the Buyer with such destruction being certified to the Buyer by an authorised officer of the Supplier;
will not be disclosed nor caused to be disclosed directly or indirectly to any third party, except to the Supplier’s employees and subcontractors who have a need to know for the purpose of fulfilling its obligations under this Order, provided that the Supplier informs such employees and/or subcontractors of the confidential nature of the Proprietary Information and uses its best endeavours to prevent such employees and/or subcontractors from using or disclosing Proprietary Information for any other purpose; and
c. will be used solely for the purpose of performing the Order.
8.3 The Supplier shall not, in any manner, reveal, or publish the fact that it has contracted with the Buyer or any details in relation to the Order, unless otherwise agreed by the Buyer in writing.
The expiry or termination of this Order or the delivery of the Supplies does not relieve the Supplier or its employees, representatives and subcontractors from complying with the obligations imposed with respect to the use and protection of the Proprietary Information.
9.1 The Supplier shall effect sufficient insurance with a reputable insurer to cover its liabilities in connection with the Order. Where the Supplies are physical goods, the Supplier undertakes to insure and keep insured at all times the Supplies for their full replacement value with a reputable insurer, together with any materials lent by the Buyer in accordance with clause 13.
Should the Supplier be required to enter the Buyer’s premises or worksites to carry out any work related to the Order, the Supplier must effect and maintain at its cost adequate workers. compensation insurance with a principals indemnity extension (where applicable in the relevant jurisdiction) and public liability insurance in sufficient amounts to cover its liabilities in connection with the Order.
10.1 The Buyer may terminate the Order immediately, without incurring any liability to the Supplier, if:
a. there is any material breach of the Order by the Supplier (including any substantial delay in shipment of any part of the Supplies beyond any delivery date specified in the Order or otherwise notified to the Supplier); or
the Supplier ceases or threatens to cease to trade, becomes insolvent, goes into any form of administration, receivership or liquidation, is made subject to any petition or proceedings taken for the Supplier’s compulsory winding up, is made subject to the supervision of a court, enters into a scheme or arrangement with its creditors or becomes the subject of any order or proceedings relating to its solvency or, in the reasonable opinion of the Buyer, is likely to do any of the foregoing; or
10.2 On termination, the Buyer may:
a. refuse to accept any undelivered Supplies;
at the Supplier’s risk and expense, return to the Supplier any of the delivered Supplies which cannot be used without the undelivered Supplies. In such an event, the Supplier indemnifies the Buyer for any monies paid in respect of the returned Supplies;
b. enter into any premises and take away all finished and unfinished Supplies or material in which the Buyer has property; or
institute proceedings, including but not limited to, claiming compensation by way of damages in respect of any loss or damage suffered or sustained directly or indirectly by the Buyer including consequential loss and loss of profits.
10.3 If, as a result of default in performance by the Supplier, the Order is terminated in whole or in part and it is necessary to procure any of the Supplies elsewhere, the Supplier shall be liable to the Buyer to the extent that the cost of replacement supplies exceeds the amount which would have been due to the Supplier, had it satisfactorily completed the Order.
The Buyer may, on written notice to the Supplier, cancel the Order or any part of it. The Supplier must immediately cease or reduce work as specified in the notice and do everything possible to minimise losses resulting from the cancellation. The Supplier may submit a claim for compensation (together with suitable vouching of the sums claimed) in respect of its direct losses arising from the cancellation and the Buyer shall pay such sums as are fair and reasonable. In no circumstances will the Buyer be liable for consequential or indirect loss, loss of profits, or any sum in excess of the value of the Order.
11. PROHIBITED SOFTWARE
11.1 For the purposes of this clause “Prohibited Software” means software that incorporates or embeds software in, or uses software as part of, bundled with, or alongside any: (1) open source or “free” software, library or documentation; or (2) software provided under a licence that requires the software to be licensed for the purpose of making derivative supplies, or to be redistributable at no charge, or obliges the Buyer to make the software (or any object code and/or source code formats incorporated in it) available to or accessible by any third party.
Unless the Supplier has obtained the Buyer’s prior written consent, the Supplier shall not use in connection with the Order, or incorporate into any part of the Supplies, any Prohibited Software.
12. BUYER FURNISHED PROPERTY
12.1 Any free-issue materials and/or property furnished by the Buyer to the Supplier for the purposes of the Order (“Buyer Materials”) are lent to the Supplier for purposes of the Order only and title thereto shall at all times remain with the Buyer. The Supplier shall be responsible for the safe custody and proper maintenance of Buyer Materials while in its custody and their prompt return (at the Supplier’s cost) upon delivery of the Supplies. Buyer Materials may not be modified, altered, destroyed, damaged or used for any purposes other than for the fulfilment of the Order.
The Supplier shall indemnify the Buyer in respect of any loss or expense arising from the Supplier’s failure to return any Buyer Materials in the condition in which they were lent to the Supplier, except for reasonable wear and tear due to their use in accordance with the Order, or as an integral part of the Supplies.
12.2 The Supplier must provide all reasonable assistance (including the provision of information) to the Buyer in order to allow the Buyer and its related entities to comply with their obligations under any Anti- Slavery Laws or reduce the risk of Modern Slavery.
13. COMPLIANCE WITH LAWS
13.1 Each party must, in the performance of its obligations in relation to this Order, comply with all applicable Laws, including all workplace health and safety, hazardous substances, dangerous goods and environmental protection Laws (and any mandatory directions or notices issued by any relevant Government Agency in respect of such Laws).
14. BUSINESS CONDUCT
14.1 (Privacy and Data) Each party must comply with all applicable privacy, information security, data protection and export control laws in relation to the Supplies and the Order.
(Anti Slavery) The parties must not permit, and must ensure their controlling entities (f any) do not engage in or permit any acts of Modern Slavery in their organisation, operations or supply chain, where “Modern Slavery “means conduct which would constitute an offence under Division 270 or 271 of the Australian Criminal Code (Cth) or equivalent Laws in any jurisdiction applicable to a party, including slavery, servitude, forced labour, deceptive recruiting, forced marriage, debt bondage, any form of human trafficking and any form of child labour prohibited by Law.
14.2 (Anti-bribery and Corruption) The parties must not offer or provide any benefit (including any payment, gift, hospitality or gratuity, whether monetary or in-kind) to any person with the intention of improperly influencing such person in the exercise of their duties (including to make or refrain from making or taking a decision or action) and must comply with the Criminal Code Act 1995 (Cth) and any similar anti-bribery or anti-corruption Laws applicable to a party in relation to this Order.
(Anti-Money Laundering) Each party must comply with the Australian Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and any equivalent Laws in any jurisdiction applicable to a party in relation to any transactions undertaken pursuant to these Terms of Sale.
14.3 (Trade Control) Each party must comply with any economic or trade sanctions Laws applicable to that party.
(Conflict of Interest) Each party must disclose to the other party any conflict of interest which exists or is likely to arise in relation to the Order.
14.4 (Compliance) Each party must: (a) provide reasonable assistance (including the provision of information) to the other party in order to enable their compliance with the obligations under clause 15; and (b) must notify the other party of any breach of their obligations under this clause 15 which relate to the Supplies or this Order.
15. GOVERNING LAW
15.1 The Order is governed by the laws of the State of Victoria and the parties hereby submit to the exclusive jurisdiction of the courts of the State of Victoria
16.1 For the purposes of interpreting these Terms: (a) where a word or phrase is defined its other grammatical forms have a corresponding meaning; (b) a reference to legislation includes all regulations and other delegated legislation made under it, and includes any amendments, consolidations, re-enactments or replacements; and (c) the use of the word includes or including is not to be taken as limiting the meaning of the words or terms preceding it.
No failure or delay in exercising a power or right shall operate as a waiver of that power or right, unless in writing and signed by the waiving party.
16.2 Rights and remedies set out herein are cumulative and are in addition to all other rights and remedies available at law.
The invalidity of any term or condition incorporated into the Order shall not affect or invalidate any other term or condition.
16.3 Notices must be in writing and may be delivered to a party by hand, pre-paid mail or e-mail at the address set out on the Order or as otherwise notified by the parties to each other in writing.
The Supplier may not sub-contract, transfer, assign, hold in trust for another, or otherwise dispose of or charge all or any of its rights, obligations or interests under this Order without the prior written consent of the Buyer. The Buyer may assign its rights in the Order to any other company in the group of companies of which the Buyer forms part.
16.4 The Supplier shall notify the Buyer of any change in corporate structure by merger, consolidation, dissolution or other change such as change of name, change of address, as soon as practicable.
All communications in relation to the Order and all documentation, labels and drawings relating to the Supplies shall be in the English.