Interclamp terms and conditions of acquisition of goods and services

Last Updated: 18 July 2023

Background

A     These are the terms and conditions upon which Buyer acquires Goods or Services (jointly referred to as the Outputs) from Seller.

B     These terms and conditions override any conditions provided by Seller.

Operative provisions

1. Definitions and interpretation

Definitions

1.1 In these conditions the following definitions apply:

Buyer means Interclamp Pty Ltd ABN 96 168 906 705.

Confidential Information means any information provided by Buyer or any of its Representatives to Seller or any of its Representatives, or otherwise obtained by Seller or any of its Representatives, whenever obtained, in connection with Buyer, the Outputs or these conditions. It includes all of the following:

(a)              All confidential business information, documents, records, financial information, reports, technical information and forecasts which relate to Buyer or Buyer’s business.

(b)              Buyer’s intellectual property.

(c)              These conditions and the Order.

(d)              Any information created under or arising out of the provision of Outputs under these conditions.

Contract means the contract between Buyer and Seller for the sale and purchase of the Outputs consisting of the Order, these conditions, and other documents (or parts thereof) specified in the Order.

Corporations Act means the Corporations Act 2001 (Cth) and any regulations made under it.

Goods means goods (and any parts thereof) to be supplied to Buyer pursuant to the Contract, these conditions, and other documents (or parts thereof) specified in the Order.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Insolvency Event in relation to a person means anything that reasonably indicates that there is a significant risk that that person is or will become unable to pay its debts as they fall due.  This includes any of the following:

(a)              A meeting of the person’s creditors being called or held.

(b)              A step being taken to make the person bankrupt or to wind the person up.

(c)              The appointment of a controller or administrator as defined in section 9 of the Corporations Act.

(d)              The person entering into any type of agreement, composition or arrangement with, or assignment for, the benefit of all or any of its creditors.

(e)              The person being made subject to a deed of company arrangement.

(f)                 A step being taken to have a receiver, receiver and manager, liquidator or provisional liquidator appointed to the person or any of its assets.

Installation Services means services supplied to Buyer in respect of installation works of Buyer’s systems, including handrail systems.

Intellectual Property Rights means any patent, registered design, copyright, database right, design right, topography right, trade or service mark, trade or business name, domain name, trade secret, know-how and right of confidence and any other intellectual property right of any nature, in all cases whether or not registered or registrable in any country, for the full term of such rights, including any extension or renewal of the terms of such rights and including registrations and applications for registration of any of such rights anywhere in the world.

Loss means any loss including any liability, cost, expense (including legal costs on a full indemnity basis), claim, proceeding, action, demand or damage.

Order means the Order placed by Buyer whether in writing, verbally, electronically or otherwise for the supply of Outputs.

Outputs means the Goods or Services (and any parts thereof) to be supplied to Buyer pursuant to the Contract and any reference in these conditions to Outputs also includes Services (except where Services are separately identified).

Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in writing or spoken, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

Privacy Act means Privacy Act 1988 (Cth).

Related Entity has the same meaning as under the Corporations Act.

Representative means any director, officer, employee, agent, contractor, financier, professional adviser or Related Entity of a party.

Seller means the person, firm or company specified in the Order as the supplier of the Outputs.

Services means the services to be supplied to Buyer under these conditions, including the Installation Services.

1.2               In these conditions, unless the context otherwise requires:

1.2.1        A reference to any law or legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision, in either case whether before, on or after the date of these conditions.

1.2.2        A reference in these conditions to any document or agreement is to that document or agreement as amended, novated, supplemented or replaced from time to time.

1.2.3        A reference to a clause, part, schedule or attachment is a reference to a clause, part, schedule or attachment of or to these conditions.

1.2.4        Where a word or phrase is given a defined meaning another part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning.

1.2.5        A word which indicates the singular also indicates the plural, a word which indicates the plural also indicates the singular, and a reference to any gender also indicates the other genders.

1.2.6        An expression importing a natural person includes any company, trust, partnership, joint venture, association, body corporate or public authority.

1.2.7        Any agreement, covenant, representation, warranty, undertaking or liability arising under these conditions on the part of two or more persons is to be taken to be made or given by such persons jointly and severally.

1.2.8        References to the word ‘include’ or ‘including’ are to be interpreted without limitation.

1.2.9        A reference to a time of day means that time of day in the place whose laws govern the construction of these conditions.

2 General

2.1              These conditions set out the terms and conditions on which Seller will supply and Buyer will acquire the Outputs.

2.2              The engagement of Seller as a supplier under these conditions is non-exclusive.  It does not restrict Buyer’s right to contract with other persons for the supply of goods or services similar to the Outputs, or to supply any Outputs itself.

3 Application of conditions and Contract Formation

3.1              All Outputs acquired by Buyer are acquired subject to these conditions, which will be the sole terms and conditions governing any acquisition of Outputs by Buyer from Seller.

3.2              These conditions prevail over any other terms and conditions contained or referred to in any acknowledgment of Order, form of contract, consignment note, invoice, letter or other communication sent by Seller to Buyer and acceptance of the Order by Seller is taken to indicate unqualified acceptance of these conditions.

3.3              No Outputs will be deemed to have been purchased by Buyer and no Contract will come into existence until Buyer confirms the Order.

3.4              Without prejudice to any of Seller’s obligations under these conditions, Seller acknowledges that any forecasts, forward projections or schedules of volume supplied by Buyer to Seller are given only as an indication of Buyer’s requirements, are not binding and are subject to change without notice.

3.5              If the Outputs are not likely to be available at the time required for fulfilment of the Order and/or will prevent the Order from being fulfilled on time, Seller must notify Buyer as soon as reasonably practicable of such unavailability. No substitutes may be used without the consent of Buyer.

3.6              No variation to the Contract (including any Order) will be binding unless expressly agreed in writing by Buyer.

3.7              Without prejudice to any of its rights under clause 22, Buyer will be entitled to cancel an Order at any time prior to delivery or supply and pay the price of the Outputs so cancelled, less the savings in cost to Seller arising from such cancellation.

4 The Services

4.1              Seller must supply the Services in accordance with these conditions. At all times during the term of these conditions, Seller must supply the Services in all the following ways:

4.1.1        Promptly, carefully and to the highest possible standards.

4.1.2        Exercising all due care, skill and judgement, in an efficient, professional and cost-effective manner and in accordance with accepted professional and business practices.

4.1.3        In accordance with instructions or directions given by Buyer.

4.2              At all times during the currency of these conditions, Seller must do all of the following:

4.2.1        Hold all authorisations, permits and licences required under any law to supply the Services.

4.2.2        Comply with the requirements of all laws of any kind applying to the supply of the Services.

4.2.3        Comply with Buyer’s standards, operating principles, policies and procedures, including Buyer’s occupational, health and safety policies.

4.2.4        Comply with all directions from Buyer to ensure minimal interference with Buyer’s operations.

4.3              Buyer seeks to continuously improve processes and reduce its costs in respect of the Services.  Seller must implement any continuous improvement and cost reduction initiatives required by Buyer on an ongoing basis and Seller must use its best efforts to increase efficiency in order to reduce Buyer’s costs in respect of the Services.

4.4              Buyer may at any time direct Seller to alter the Services or direct Seller to carry out any work of a character similar to the Services which Buyer determines as being reasonably necessary.  Seller must comply with any such direction, provided it is within its power to do so.

4.5              Seller must immediately notify Buyer in writing if it believes at any time that it is unlikely to be able to deliver any part of the Services by the date specified in any Order.  The notice must contain detailed reasons for the anticipated delay and Seller’s best estimate of the expected delay.  Notification will not relieve Seller from any of its obligations under these conditions.

4.6              If Seller provides Buyer with a notice under clause 4.5, Buyer may, in addition to any other rights it may have and at its discretion, either grant Seller an extension of time to supply the Services or engage a third party to supply any Services that cannot be supplied in accordance with these conditions.

5 Seller’s Representatives

5.1              Seller must engage sufficient employees with the necessary skills, expertise, qualifications and training to supply the Outputs.  Seller must ensure that its employees supply the Outputs exercising due care, skill and judgement and in an efficient, professional and cost-effective manner.  If requested by Buyer, Seller must submit a list of the names of all employees engaged by Seller in the provision of the Outputs.

5.2              Buyer may at any time request Seller to withdraw any person from providing any part of the Outputs.  On request, Seller must promptly arrange for the person to cease being involved in any way in the provision of the Outputs.  Seller must replace the person with a person of suitable ability, experience and qualifications within any time period specified by Buyer.

6 Delivery and Performance

6.1              Time of delivery of the Goods and time of supply of the Services is of the essence.

6.2              Delivery in instalments will be permitted only with the consent of Buyer in writing. Where Buyer agrees in writing to accept delivery by instalments the Contract will be construed as a single contract in respect of each instalment.

6.3              If Buyer is not able to accept delivery of the Outputs when due, Seller is responsible for arranging suitable storage at suitable premises for the Outputs, advising Buyer beforehand of the particulars of such proposed storage, and Seller will also ensure that the Outputs and the premises in which they are stored are properly insured against all the usual risks and will notify Buyer of such insurance cover. Buyer will be liable for the reasonable additional cost, including insurance, of so doing.

6.4              If the Outputs are delivered to Buyer in excess of the quantities ordered, Buyer is not required to pay for the excess and any excess is and will remain at Seller's risk and will be returnable at Seller's expense.

6.5              The Outputs will be delivered at the time or within the period specified in the Order to the address indicated in the Order.

6.6            Delivery of the Outputs will be complete on the completion of unloading and stacking of the Outputs at the address specified in the Order. Seller will immediately notify Buyer when delivery has been completed pursuant to this clause 6.6. Delivery must take place during Buyer's normal business hours.

6.7              The Outputs will be supplied at the address indicated in the Order or as otherwise directed by Buyer.

6.8          If the Outputs or any part thereof are not delivered within the time or times specified in the Contract or any extension of such time or times, Buyer may recover from Seller as liquidated damages and not by way of penalty a percentage of that part of the Contract which is properly apportionable to the Outputs undelivered and to any other Outputs already delivered under the Contract which cannot be effectively and commercially used due to Seller's failure entirely to perform the Contract. In addition to Buyer’s rights under this clause 6.8as aforesaid, Buyer may:

6.8.1        refuse to take any subsequent attempted delivery of the Outputs;

6.8.2        terminate the Contract with immediate effect;

6.8.3        obtain substitute Outputs from another seller and recover from Seller any costs and expenses reasonably incurred by Buyer in obtaining such substitute Outputs; and

6.8.4        claim damages for any other costs, expenses or losses directly or indirectly resulting from Seller's failure to deliver the Outputs as aforesaid.

6.9              Each delivery must be accompanied by a delivery note from Seller showing:

6.9.1        the Order number;

6.9.2        the type and quantity of Outputs included in the Order; and

6.9.3        where the Outputs are being delivered by instalments, the outstanding balance of Outputs remaining to be delivered.

6.10          Seller must obtain the signature of Buyer’s representative on the delivery note required pursuant to clause 6.9, but such signature does not indicate acceptance of the Outputs.

6.11          If Seller requires Buyer to return any packaging materials to Seller, that fact must be clearly stated on the delivery note accompanying the Order, and any such returns will be at Seller's expense.

6.12          If Seller is in the position of being able to supply some but not all of its customers, Buyer must be given priority over all other of Seller's customers.

6.13          If delivery is made before the delivery date specified in the Order, Buyer may return the Outputs to Seller at Seller's risk and expense. In any event, payment will be withheld, and the payment period will begin to run from the delivery date specified in the Order or the date of receipt by Buyer of a correct invoice, whichever is the later.

7 Risk and Property

7.1              Until delivered by Seller in accordance with clause 6, the Outputs remain at the risk of Seller who must insure the same against all risks which can be reasonably contemplated as affecting the Outputs. Subject to Buyer's right of rejection of the Outputs, the property in the Outputs will pass to Buyer upon delivery, or payment of the price of the Outputs, whichever is the earlier.

7.2              The provisions of clause 7.1 apply without limitation to any patterns, tools, dies or moulds procured by Seller for use in connection with the Outputs and which must remain at Seller’s premises to facilitate the ongoing supply of the Outputs. On receipt of Buyer’s written request, Seller must immediately release to Buyer such patterns, tools, dies or moulds to Buyer.

8 Labelling and Packaging

8.1              The Outputs must be properly labelled, packed and secured in the manner specified in the Order and in any event in a manner so as to reach their destination in good condition under normal conditions of transport, having regard to the nature and composition of the Outputs.

8.2              Subject to clause 8.1, all export shipments must meet all export shipping requirements and must be adequately boxed or crated with any special handling clearly marked and contents waterproofed and otherwise protected to prevent damage in transit.

9 Acceptance and Rejection

9.1              Without prejudice to any other of its rights, Buyer may by notice in writing to Seller reject any or all of the Outputs if Seller fails to comply with any of its obligations under the Contract or the Order.

9.2              Buyer is not taken to have accepted any Outputs until Buyer has had a reasonable time to inspect them following delivery or supply, or if later, within a reasonable time after any latent defect has become apparent.

9.3              If any Outputs are rejected by Buyer in accordance with clause 9.1, then Buyer may:

9.3.1        require Seller to replace the rejected Outputs at Seller’s risk and expense within 5 business days of being requested to do so;

9.3.2        terminate the Contract with immediate effect;

9.3.3        refuse to pay the Contract Price for the rejected Outputs, without liability to Seller;

9.3.4        where the Outputs have already been paid for in part or in full, require Seller to repay the Contract Price for the rejected Outputs in part or in full, as applicable (whether or not Buyer has previously required Seller to replace the rejected Outputs); and

9.3.5        claim damages for any other costs, expenses or losses resulting directly or indirectly from Seller's delivery of the rejected Outputs.

9.4              Buyer's rights and remedies under clause 9.3 are in addition to the rights and remedies available to it in respect of the statutory conditions relating to description, quality, fitness for purpose and correspondence with sample implied into the Contract by the Competition and Consumer Act 2010 (Cth).

9.5              Clause 9.3 applies, without limitation, to any replacement Outputs supplied by Seller.

9.6              If Seller fails to promptly replace rejected Outputs in accordance with clause 9.3.1, Buyer may, without affecting its rights under clause 9.3.5, obtain substitute Outputs from any third party and Seller must reimburse Buyer for the costs it incurs in doing so.

9.7              Seller must promptly re-supply any Services found within 12 months of the date of their supply to have been supplied defectively.

10 Installation Services

10.1          In the case where the Services are Installation Services, the additional requirements set out in this clause 10 apply.

10.2          Seller acknowledges and agrees that the Installation Services are crucial to the reputation and goodwill of Buyer and justify additional requirements and warranties under this clause 10.

10.3          In respect of the warranties given by Seller under clause 18, those warranties apply for the longer of the period of 5 years from the date of completion of the Installation Services and the expiry of those warranties under clause 18.

10.4          In respect of the obligations of Seller to repair or rectify any Outputs under this Contract, those obligations continue for the longer of the period of 5 years from the date of completion of the Installation Services and the expiry of those obligations under this Contract.

11 Payments

11.1          Buyer will pay Seller for supplying the Outputs.  Buyer will make all payments to Seller in accordance with the rates and charges set out in the Order.  Unless otherwise agreed by Buyer, such rates and charges will be fixed for the term of these conditions.

11.2          Seller must submit monthly invoices to Buyer detailing the payments to be made by Buyer.  All invoices must:

11.2.1    specify the Order number;

11.2.2    be supported by an appropriate statement of accounts;

11.2.3    be in respect of one Order only; and

11.2.4    be sent to the address notified to Seller.

11.3          Buyer will pay all correctly rendered invoices within 60 days of the end of the month in which the invoices are received by Buyer.

11.4          Buyer is free to make payment to Seller by whichever method Buyer chooses.

11.5          Seller is not entitled to suspend delivery of the Outputs as a result of any sums being outstanding including if any sum under the Contract is not paid when due.

11.6          Payment of the invoice by Buyer does not constitute acceptance of the Outputs and is without prejudice to any claims Buyer might have against Seller.

11.7          If Buyer directs Seller in writing to alter or vary the Outputs, or directs Seller to carry out any work of a character similar to the Outputs, the amount payable by Buyer to Seller for any variation carried out in accordance with such direction will be determined by:

11.7.1    applying any specific rates or charges set out in the Order which apply to the Outputs supplied; or

11.7.2    if no rates or charges are specified, or if the rates or charges are not applicable, by the parties applying reasonable rates determined jointly with reference to the rates and charges set out in the Order.

11.8          Buyer may withhold payment of any amount that it disputes in good faith until the dispute has been resolved.

11.9          Seller will be responsible for and pay all fees, charges and costs incurred in the provision of the Outputs.  This clause will not apply to the extent that any payment is expressly stated in these conditions as being Buyer’s responsibility, or if Buyer agrees in writing to be responsible for any payment.

11.10      Buyer may set off any amount it owes Seller under these conditions against any amount that Seller owes it under these conditions or under any other agreement or arrangement with it.

11.11      Seller must not set off any amount Buyer owes it under these conditions against any amount that it owes Buyer under these conditions or under any other agreement or arrangement with Buyer.

12 Samples, Testing and Inspection

12.1          Seller must submit samples of the Outputs for Buyer's approval before the Outputs are delivered if requested by Buyer. Such samples of Outputs must be marked by Seller clearly and appropriately for identification and will be retained by Buyer until after the Outputs have been delivered.

12.2          Buyer or its Representatives are entitled to make such tests or carry out such inspections of Outputs during manufacture, processing and storage and inspect any equipment used to manufacture such Outputs. Seller will at its own cost provide or procure the provision of all facilities as may be reasonably required and give all assistance and make available all pertinent drawings and plans to Buyer or its Representatives for such tests or inspections. Before despatching the Outputs, Seller must carefully inspect them for compliance with the Order approved samples and/or the specification and will give Buyer reasonable notice of any tests to be carried out so that Buyer may be represented at such tests. Seller will at the request of Buyer supply to Buyer a copy of Seller's test and/or inspection reports.

12.3          If as a result of any test or inspection report under clause 12.2, Buyer considers that the Outputs do not comply with the Order or Order samples approved by Buyer and/or specification (if any), or are unlikely on completion of manufacture or processing so to comply, Buyer will notify Seller in writing and Seller must promptly take such steps as may be necessary to ensure such compliance at its sole cost.

12.4          Buyer has the right to inspect any Outputs supplied by Seller pursuant to the Contract and Seller will allow all reasonable access and assistance to Buyer’s Representatives to enable such Representatives to carry out the inspection promptly, including providing Buyer with any information that may be reasonably required.

12.5          No testing or inspection undertaken pursuant to this clause 12 (nor any results thereof) will diminish any other obligation of Seller under the Contract, nor will any such inspection or testing or any results thereof be deemed to amount to, or to be tantamount to, acceptance of the Outputs.

13 Product Recalls

13.1          Seller must immediately notify Buyer in writing providing all relevant details if it discovers:

13.1.1    that there is or may be a defect in the Outputs which have been delivered to Buyer at any time;

13.1.2    any error or omission in the instructions for the use and/or assembly of the Outputs;

13.1.3    a risk that Seller suffers or will suffer any incident that may damage Buyer’s reputation;

13.1.4    that any such defect, error or omission represents a breach of any warranty which causes or may cause any risk of death, injury or damage to property; or

13.1.5    that it receives any complaints relating to the Outputs from its customers.

13.2          Where any of the circumstances in clause 13.1 apply, Buyer may in its absolute discretion, or by order of any authority, at Seller’s expense:

13.2.1    recall any Outputs or any other goods into which the Outputs have been incorporated and sold by Buyer to its customers (whether for a refund, credit or replacement, which will in each case be undertaken by Seller at Buyer’s discretion); and/or

13.2.2    issue any notification whether in writing or otherwise to its customers about the manner of use or operation of any Outputs or any other Outputs into which the Outputs have been incorporated and sold by Buyer to its customers; in each case on the basis of the identification whether by Buyer, its customers or any third party of any defect in the relevant Outputs or any error or omission in the instructions for their use or assembly (whether or not that defect, error or omission represents a breach of any warranty) which Buyer reasonably concludes affects or may affect any of the Outputs supplied which causes or may cause any risk of death, injury or damage to property.

13.3          Buyer will wherever practicable notify Seller prior to taking such decision as detailed in clause 13.2 and afford Seller the opportunity to make representations.

13.4          If Buyer conducts a recall of Outputs, Seller must cooperate with Buyer and provide all assistance that is reasonably required to ensure that the Outputs are recalled promptly and effectively. The parties have the following responsibilities:

13.4.1    Seller must follow local procedures covering recall of Outputs subject to any directions received from Buyer;

13.4.2    Seller must ensure that it retains all batch records and product information relating to the recalled Outputs and that these records are made available to Buyer within four hours of notification of a product recall;

13.4.3    upon Buyer’s request, Seller will cease delivering the recalled Outputs to Buyer;

13.4.4    Seller will only supply Outputs replacing the recalled Outputs upon Buyer’s request in writing.

13.5          Seller must reimburse Buyer for losses as a result of or in connection with such recall of Outputs and/or for arising out of Seller's supply, or purported supply of, or failure to perform its obligations under the Contract.

14 Intellectual Property

14.1          All information, specifications, drawings, designs, patterns, tools, dies, moulds and other items furnished by Buyer to Seller:

14.1.1    are confidential and must not be disclosed by Seller to any other person without the prior consent of Buyer;

14.1.2    must not be copied or used for any other purpose other than for the carrying out of Seller’s obligations under the Contract;

14.1.3    must at all times remain the sole and exclusive property of Buyer;

14.1.4    must be returned at Seller's risk and expense in good order and condition to Buyer immediately upon request or upon completion or termination of the Contract; and

14.1.5    must be insured against all risks by Seller whilst they are in its possession.

14.2          Seller acknowledges and agrees that all intellectual property, including but not limited to, copyrights, patents, trade marks, designs, brand names, logos, circuit layouts and Confidential Information discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with the supply of the Outputs will vest in, and are assigned to, Buyer absolutely on creation.  Seller must execute all documents and do all things required to give effect to this clause.

14.3          Seller acknowledges and agrees that any identification used by Buyer such as trade marks, trade names, logos or any markings or decorative styling may be used only on articles supplied to Buyer.

14.4          If any material, matter or thing (including documentation or data) is owned by Seller and such material, matter or thing is incorporated in or attached to any intellectual property owned by Buyer (whether pursuant to clause 14.1 or otherwise), Seller grants Buyer a perpetual, irrevocable, worldwide, transferable and royalty free licence (including the right to sub-license) to exercise all intellectual property rights in such material, matter or thing for the purpose of accessing and using the intellectual property owned by Buyer as referred to in this clause.

14.5          Seller must at Buyer's request (and notwithstanding the termination of the Contract) execute and procure the execution of all such documents and do all such acts as Buyer may reasonably require:

14.5.1    to vest the legal title in, apply for, obtain and maintain in force in Buyer's sole name (unless it otherwise directs) the Intellectual Property Rights;

14.5.2    to resist any objection or opposition to obtaining, and any petitions or applications for revocation of, any of the Intellectual Property Rights;

14.5.3    to bring any proceedings for infringement of any of the Intellectual Property Rights.

14.6          Seller irrevocably undertakes that it (and its Representatives) will not assert against Buyer any moral rights in or relating to the Intellectual Property Rights and agrees that all such moral rights are irrevocably waived and extinguished.

14.7          Seller must not infringe the intellectual property rights of Buyer or a third party in connection with providing the Outputs.  Seller continually indemnifies Buyer against any Loss that Buyer incurs or suffers, as a direct or indirect result of a breach of the intellectual property rights of Buyer or a third party in connection with providing the Outputs.

15 Confidentiality

15.1          Where Seller receives Confidential Information from Buyer under these conditions or otherwise in connection with the Outputs, Seller must do all of the following:

15.1.1    Keep the Confidential Information confidential.

15.1.2    Not use, disclose or reproduce the Confidential Information for any purpose other than the purposes of the Contract.

15.1.3    Not, without Buyer’s written consent, disclose Confidential Information to any person other than its Representatives who need the information solely for the purposes of the Contract.

15.1.4    Establish and maintain effective security measures to safeguard the Confidential Information from unauthorised access, use, copying or disclosure.

15.2          Notwithstanding clause 15.1, Seller may use or disclose Confidential Information to the extent necessary to fulfil any of the following:

15.2.1    Comply with any law, binding directive of a regulator or a court order, provided that before such disclosure occurs, Seller must seek to reduce the scope of such disclosure and if permitted by law, notify Buyer prior to such disclosure occurring.

15.2.2    Obtain professional advice in relation to matters arising under or in connection with these conditions.

15.3          Clause 15.1 does not apply to Confidential Information for which any of the following applies:

15.3.1    Information which is in or becomes part of the public domain otherwise than through breach of an obligation of confidence.

15.3.2    Information which was known to Seller at the time of disclosure, unless such knowledge arose through breach of an obligation of confidence.

15.3.3    Information which Seller acquires from a third party where that third party was entitled to disclose it.

15.4          Seller must ensure that its employees, subcontractors, agents and Representatives do not do, or omit to do anything, which if done or omitted to be done by Seller, would breach this clause.

15.5          Buyer may at any time require any employees, subcontractors, agents or Representatives of Seller engaged in the performance of obligations under these conditions to give written undertakings in a form prepared by Buyer relating to the non-disclosure of the Confidential Information and Seller must promptly arrange for all such undertakings to be given.

15.6          Seller must immediately notify Buyer of any potential, suspected or actual unauthorised use, copying or disclosure of the Confidential Information.

15.7          Seller must immediately on demand, or on completion or termination of the Contract, return to Buyer any documents in its possession, power or control containing Confidential Information.  Seller must not retain copies of any Confidential Information in any form.

15.8          Seller acknowledges that a breach of the confidentiality obligations set out in the Contract by it may cause Buyer irreparable damage for which monetary damages would not be an adequate remedy.  Accordingly, in addition to a claim for damages and any other remedies available at law or in equity, Buyer may seek specific performance or injunctive relief (as appropriate) against any breach or threatened breach by Seller, or the employees, subcontractors, agents or Representatives of Seller.

15.9          In addition to the obligations of confidentiality under this clause 15, Seller must not without the prior written consent of Buyer advertise or make it known to third parties that Seller supplies Outputs to Buyer.

15.10      All obligations of confidence set out in these conditions continue in full force and effect after the Contract ends.

16 Privacy

16.1          Seller warrants to Buyer all of the following:

16.1.1    Any Personal Information that Seller discloses to Buyer under these conditions has been collected in accordance with the Privacy Act.

16.1.2    The individual to whom the information relates has been made aware of Buyer’s identity, of how to contact Buyer and of the other matters of which Buyer is required to inform a person about whom it collects information under the Privacy Act.

16.1.3    Buyer is authorised to collect the information from Seller and use the information for the purposes of these conditions.

16.2          In relation to any Personal Information disclosed to it by Buyer under these conditions, Seller must:

16.2.1    Not use, disclose, store, transfer or handle the information except in accordance with the Privacy Act.

16.2.2    Take all reasonable steps to ensure that the information is protected from misuse, Loss, unauthorised access, modification or disclosure.

16.2.3    Take all reasonable steps to destroy or permanently de-identify the information when it is no longer needed for a purpose connected with these conditions.

16.2.4    Only use or disclose the information for a purpose connected with these conditions or as required by law.

16.2.5    Co-operate with any reasonable request or direction of Buyer which relates to the protection of the information or the exercise of the functions of the Privacy Commissioner under the Privacy Act.

16.2.6    Ensure that access to its employees, Representatives and subcontractors is limited to people required to access that information for the purposes of these conditions.

16.2.7    Ensure that any of its employees, Representatives or subcontractors who access the information comply with the requirements of this clause and of the Privacy Act.

16.3          Seller must promptly inform Buyer in writing of any complaint that it receives concerning the use, disclosure, storage, transfer or handling of Personal Information and comply with any reasonable direction of Buyer in relation to a complaint concerning the use, disclosure, storage, transfer or handling of Personal Information.

17 Subcontracting

17.1          Seller must not subcontract the whole or any part of the Outputs without Buyer’s prior written consent.

17.2          Without limiting clause 17.1, Buyer’s consent to any subcontracting may be conditional on the following:

17.2.1    There being no unremedied breach of these conditions.

17.2.2    Seller providing all information required by Buyer.

17.2.3    Seller demonstrating to Buyer’s satisfaction that the proposed subcontractor is responsible, of sound financial standing and capable of providing the Outputs to be subcontracted.

17.2.4    Seller bearing any costs incurred by Buyer in giving its consent.

17.3          Seller remains responsible for all subcontracted functions, responsibilities and obligations.  Seller will be liable for all acts, omissions, defaults and neglects of any subcontractor as if they were Seller’s acts, omissions, defaults or neglects.

17.4          No subcontractor will have any rights under these conditions against Buyer or be entitled to receive any payment under these conditions from Buyer.

17.5          Buyer may, by reasonable notice to Seller, require Seller to replace a subcontractor or cease using a subcontractor.  Buyer may only do so if it has reasonable grounds for making the request, including if it considers that the subcontractor is failing to perform the subcontracted obligations.

18 Warranties

18.1          Each party represents and warrants to the other on a continuing basis that:

18.1.1    It has full corporate power to enter into and give effect to these conditions and to complete the transactions contemplated by these conditions.

18.1.2    Unless otherwise stated, it does not enter into these conditions as trustee of any trust.

18.2          Without prejudice to any other rights Buyer may have, Seller warrants to Buyer on a continuing basis that:

18.2.1    the Outputs will be fit for all purposes of Buyer made known to Seller, or which should otherwise be reasonably apparent to Seller. Seller must satisfy itself that it fully understands Buyer's requirements so as to be in a position to comply with its obligations under this clause 18.2.1 and also to prevent delay on account of any modifications to the Outputs which may be necessary to meet Buyer's requirements. The cost of any such modifications are deemed to be included in the price of the Outputs;

18.2.2    the Outputs comply in all respects with all relevant statutory requirements, regulations, orders and standards relating to the Outputs and Seller expressly warrants that the Outputs supplied under the Order have been or will be manufactured and sold free from all security interests, liens, charges, claims and encumbrances and in compliance with all relevant laws and regulations.

18.3          Without prejudice to clause 18.2, Seller warrants on a continuing basis that all Outputs supplied under the Order will:

18.3.1    be of the quality, quantity, size, description, specification and dimensions specified in the Order or otherwise indicated by Buyer;

18.3.2    be of sound materials and of proper workmanship and design;

18.3.3    be free from all defects, including latent defects;

18.3.4    conform to any drawings or designs contained in or referred to in the Order;

18.3.5    conform to any material relating to the Outputs contained in any advertisements, catalogues, literature or correspondence published or issued by Seller, or appearing on Seller’s website;

18.3.6    be equal in all respects to any samples provided by Seller which have been approved by Buyer;

18.3.7    be capable of any standard of supply specified in the Order and/or Seller's quotation;

18.3.8    be supplied at no additional cost with all instructions, handbooks, training materials and safety data sheets required for the safe and proper use and operation of the Outputs; and

18.3.9    be supplied at no additional cost with adequate spares and an after-sales service for the period specified in the Order, or if no such period has been specified in the Order, for such period as is reasonable, having regard to the type, value and proposed use and maintenance requirements of the Outputs.

18.4          Without prejudice to clauses 18.2 or 18.3, Seller warrants on a continuing basis that:

18.4.1    it will for the duration of the Contract maintain sufficient manufacturing capacity and stocks of Outputs to enable it to meet any Order and will at all times maintain full quality and traceability records;

18.4.2    it will obtain and maintain in force at its sole expense for the duration of the Contract all licences, permissions, authorisations, consents and permits needed to produce, supply and deliver the Outputs in accordance with the Contract;

18.4.3    it will comply with all applicable laws, enactments, orders, regulations and other instruments relating to the production, packing, packaging, marking, labelling, storage, handling, supply and delivery of the Outputs;

18.4.4    the Outputs will be supplied by appropriately qualified and trained personnel in a timely and good and workmanlike manner and to the highest standard of quality prevailing in the industry at the time of supply and that Seller will observe any instructions given to it by Buyer in connection with the supply of the Outputs, including any instructions regarding the health and safety and security policies that apply at Buyer’s premises (and Buyer may exclude any of Seller’s personnel from Buyer’s premises for any actual or threatened breach of any such policies).

18.5          Seller represents and warrants on a continuing basis that:

18.5.1    All information, representations, warranties and undertakings made or given by it to Buyer before the date of these conditions, whether in any tender, correspondence, negotiations or otherwise, are true, complete and accurate in all respects.

18.5.2    It has not done anything to improperly or unlawfully induce, reward or influence any person in relation to this Contract or the supply or acquisition of Outputs under these conditions including directly or indirectly offering, soliciting, giving, agreeing to give or receiving any gift, commission, rebate, money or consideration of any kind as an inducement or reward for improperly or unlawfully doing, not doing, influencing, favouring, disfavouring or carrying out any act.

19 Liability and indemnity

19.1          Seller will be treated as being aware of all the dangers and risks associated with the provision of the Outputs.

19.2          Seller will be liable for and continually indemnifies Buyer and its officers, employees, Representatives and agents against all Loss suffered or incurred by any of those indemnified as a result of a breach of these conditions by Seller, or anything that Seller or Seller’s employees, agents, Representatives or subcontractors do or fail to do under or in connection with these conditions.  Without limiting the above, this includes any Loss caused by any of the following:

19.2.1    Any infringement by Seller or its employees, agents or subcontractors of the intellectual property rights of Buyer or a third party.

19.2.2    A breach of the obligations of confidence set out in clause 15.

19.2.3    A breach of clause 16 or the Privacy Act.

19.2.4    A breach of any of the representations and warranties in clause 18.

19.2.5    Any defect in the workmanship, materials or design of the Outputs or their packaging.

19.2.6    Any claim made by or against Buyer and arising out of, or in connection with, the supply of the Outputs.

19.2.7    Any failure of the Outputs to comply with any law or regulation applicable to them.

19.2.8    Any negligent or wrongful acts or intentional misconduct of Seller or its employees, agents or subcontractors.

19.2.9    Personal injury, death or Loss of or damage to real or personal property caused by Seller or its employees, agents or subcontractors.

20 Insurance

20.1          Seller must maintain during the currency of these conditions all of the following:

20.1.1    Public liability insurance for an amount not less than a reasonable amount for a prudent supplier in respect of any claim.

20.1.2    Professional indemnity insurance for an amount not less than a reasonable amount for a prudent supplier.

20.1.3    Workers’ compensation insurance in respect of its employees and subcontractors to cover the maximum liability which may be imposed by law from time to time in each jurisdiction in which the Outputs are to be supplied.

20.2          The policies referred to in clause 20.1 must cover Seller and Buyer against any liability arising out of or in connection with the performance of Seller’s obligations under these conditions.

20.3          Each policy maintained in accordance with this clause must be with an insurer and be on terms reasonably acceptable to Buyer.

20.4          Seller must comply with and observe the terms of all insurance policies referred to in clause 20.1 and must not do anything which could result in any policy being rendered void or voidable.

20.5          Seller must deliver to Buyer evidence satisfactory to Buyer that Seller has a particular insurance policy and that the policy is current within 24 hours of a written request by Buyer to do so.

20.6          If Seller fails to maintain any policy referred to in clause 20.1, Buyer may do either of the following:

20.6.1    Effect or maintain such policy and pay premiums on that policy, the cost of which will be paid on demand by Seller to Buyer or may, at Buyer’s option, be deducted by Buyer from any monies due or becoming due to Seller under these conditions.

20.6.2    Immediately terminate these conditions. 

21 Suspension of payments

21.1          If Seller defaults in the performance of its obligations under these conditions, Buyer may give notice to it to remedy the default specifying details of the default.

21.2          If Seller fails to remedy the default specified in a notice under clause 21.1 within five business days after receipt of the notice, Buyer may suspend payment under these conditions until the default has been rectified.

21.3          Suspension of payment will not in any way affect the continuing obligations of Seller under these conditions and will be without prejudice to any other rights that Buyer may have against Seller as a result of the default.

22 Termination

22.1          Buyer may terminate the agreement set out in these conditions at any time by 30 days written notice to Seller.

22.2          Buyer may immediately terminate the agreement set out in these conditions by written notice to Seller if any of the following occurs:

22.2.1    Seller is in breach of its obligations under these conditions and does not remedy the breach (to the extent that it can be remedied) for 14 days after receiving a written notice from Buyer specifying the breach and requiring it to be remedied.

22.2.2    Seller is in breach of an essential term of these conditions or Seller commits a breach of these conditions which cannot be remedied.  The essential terms of these conditions include clauses 4.2, 14, 15, 18 and 20.

22.2.3    Seller commits multiple or recurring breaches of these conditions, whether or not remedied.

22.2.4    Seller is the subject of an Insolvency Event.

22.2.5    Seller ceases, or indicates that it is about to cease, carrying on its business.

22.2.6    There is a change in the person or persons in effective control of Seller, including any change in the underlying beneficial ownership of Seller.

22.3        Seller may immediately terminate these conditions by written notice to Buyer if any of the following occurs:

22.3.1    Buyer is in breach of its obligations under these conditions and does not remedy the breach (to the extent that it can be remedied) for 14 days after receiving a written notice from Seller specifying the breach and requiring it to be remedied.

22.3.2    Buyer is the subject of an Insolvency Event.

23 Obligations at end of agreement

23.1          When these conditions end, whether by expiration or on termination, Seller must immediately return all of Buyer’s equipment, information, documents, records and other property used by it in the provision of the Outputs or otherwise in Seller’s possession or control.

23.2          If these conditions is terminated for any reason:

23.2.1    Each party retains its rights under these conditions and at law in respect of any breach of these conditions by the other party.

23.2.2    Buyer must make payment to Seller for Outputs supplied before the date of termination, but Seller will not be entitled to any other payment or any compensation as a result of termination.

23.2.3    Buyer may employ other persons to complete or supply the Outputs, and Seller will be liable for and must pay Buyer all costs of having other persons complete or supply the Outputs.

23.3          The following clauses will survive the expiration or termination (for whatever reason) of these conditions:

23.3.1    clause 14 (Intellectual Property);

23.3.2    clause 15 (Confidentiality);

23.3.3    clause 16 (Privacy);

23.3.4    clause 19 (Liability and indemnity); and

23.3.5    any other clauses that make provision for continued operation.

24 Goods and services tax

24.1          All consideration provided under these conditions is exclusive of GST, unless it is expressed to be GST-inclusive.

24.2          Where a party (Supplier) makes a taxable supply to another party (Recipient) under or in connection with these conditions, the Recipient must pay to the Supplier an additional amount equal to the GST payable on the supply (unless the consideration for that taxable supply is expressed to include GST).  The additional amount must be paid by the Recipient at the later of the following:

24.2.1    The date when any consideration for the taxable supply is first paid or provided.

24.2.2    The date when the Supplier issues a tax invoice to the Recipient.

24.3          If, under or in connection with these conditions, the Supplier has an adjustment for a supply under the GST law which varies the amount of GST payable by the Supplier, the Supplier will adjust the amount payable by the Recipient to take account of the varied GST amount.  The Supplier must issue an adjustment note to the Recipient within 28 days of becoming aware of the adjustment.

24.4          If a party is entitled to be reimbursed or indemnified under these conditions, the amount to be reimbursed or indemnified is reduced by the amount of GST for which there is an entitlement to claim an input tax credit on an acquisition associated with the reimbursement or indemnity.  The reduction is to be made before any increase under clause 24.2.  An entity is assumed to be entitled to a full input tax credit on an acquisition associated with the reimbursement or indemnity unless it demonstrates otherwise before the date the reimbursement or indemnity is made.

24.5          This clause will not merge on completion and will survive the termination of these conditions by any party.

24.6          Terms used in this clause that are not otherwise defined in these conditions have the meanings given to them in the GST Act.

25 Force Majeure

25.1          Buyer will not be liable to Seller or deemed to be in breach of Contract by reason of any delay due to, or any loss or damage occasioned by, any cause arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of Buyer, including Acts of God, strikes, lock-outs, labour shortages, shortage of power, materials, malicious damage or obligatory voluntary compliance with any request having or appearing to have authority in that regard whether for defence or other national or local governmental purposes or otherwise. In any such case, the Order will be suspended during such delay and will again become operative upon the termination of such cause, provided that to meet any altered circumstances occasioned by such delay Buyer may make such variations to the terms of the Order as are in its opinion, reasonable and if Seller does not agree thereto Buyer may cancel the Order so far as it remains unperformed but will pay a proportionate part of the quoted price for work done and Outputs supplied prior to the event of force majeure.

25.2          In the event of any dispute as to the proper proportion payable, the matter will be settled by Buyer's auditors who will act as experts and not arbitrators and whose decisions is final and binding.

26 Notices

26.1          Any notice, consent, information, application or request that must or may be given or made to a party under these conditions is only given or made if it is in writing.

26.2          Any notice, consent, information, application or request is to be treated as given or made at the following time:

26.2.1    If it is delivered, when it is left at the relevant address.

26.2.2    If it is sent by post, two business days after it is posted.

26.2.3    If sent by email, when the sender receives an automated message confirming delivery, or four (4) hours after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, whichever happens first.

26.3          If any notice, consent, information, application or request is delivered, or an error free transmission report in relation to it is received, on a day that is not a business day, or if on a business day, after 5 PM on that day in the place of the party to whom it is sent, it is to be treated as having been given or made at the beginning of the next business day.

27 Miscellaneous

27.1          Except as otherwise set out in these conditions, Buyer may give or withhold an approval or consent to be given under these conditions in its absolute discretion and subject to any conditions determined by it.  Buyer is not obliged to give its reasons for giving or withholding a consent or for giving a consent subject to conditions.

27.2          A party must not assign any of its rights or obligations under these conditions without the prior written consent of the other parties.

27.3          These conditions and the documents forming the Contract contain everything the parties have agreed in relation to the matters it deals with.  No party can rely on an earlier agreement, or anything said or done by another party, or by a director, officer, agent or employee of that party, except as permitted by law.

27.4          Each party must promptly execute all documents and do all things that another party from time-to-time reasonably requests to effect, perfect or complete these conditions and all transactions incidental to it.

27.5          These conditions are governed by the law of Victoria.  The parties submit to the non-exclusive jurisdiction of its courts and courts of appeal from them.  The parties will not object to the exercise of jurisdiction by those courts on any basis.

27.6          Except as otherwise set out in these conditions, any covenant, agreement, representation or warranty under these conditions by two or more persons binds them jointly and each of them individually, and any benefit in favour of two or more persons is for the benefit of them jointly and each of them individually.

27.7          The relationship between the parties is that of principal and independent contractor.  No party is an agent, Representative or partner of any other party by virtue of these conditions.  Seller must not represent itself as an agent, Representative or partner of Buyer in any circumstances.

27.8          No party has any power or authority to act for or to assume any obligation or responsibility on behalf of another party, to bind another party to any agreement, negotiate or enter into any binding relationship for or on behalf of another party or pledge the credit of another party except as specifically provided in these conditions or by express written agreement between the parties.

27.9          If a clause or part of a clause of these conditions can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way.  If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from these conditions, but the rest of these conditions is not affected.

27.10      Each indemnity in these conditions is a continuing obligation, separate and independent from the other obligations of the indemnifying party and survives termination of these conditions.

27.11      Time is of the essence in relation to all of Seller’s obligations set out in these conditions.

27.12      No variation of these conditions will be of any force or effect unless it is in writing and signed by the parties to these conditions.

27.13      A waiver of any right, power or remedy under these conditions must be in writing signed by the part granting it.  A waiver only affects the particular obligation or breach for which it is given.  It is not an implied waiver of any other obligation or breach or an implied waiver of that obligation or breach on any other occasion.

27.14      The fact that a party fails to do, or delays in doing, something the party is entitled to do under these conditions, does not amount to a waiver.