Supplier terms

STANDARD PURCHASE ORDER TERMS AND CONDITIONS

 

 

This Agreement is subject to the following terms and conditions:

DEFINITIONS

(a)      In these terms and conditions, unless the context requires otherwise, the following words and expressions have the following meanings:

"Business Day" means any day other than a Saturday, Sunday or public holiday or 27, 28, 29, 30 or 31 December;

“Company” means the Laminex Group Pty Limited ABN 98 004 093 092;

“Fletcher Group” means:

(i)        Fletcher Building Limited (Parent);

(ii)       each company in which the Parent, whether individually or collectively, own (directly or indirectly) 50% or more of the voting shares; and/or

(iii)      each company which is for the purposes of section 50AA of the Corporations Act 2001 (Cth) under the "control" of the Parent, whether individually or collectively; and

(iv)     the Supplier and the Company agree that the entities that make up the Fletcher Group will change from time to time such that entities which were not previously part of the Fletcher Group as at the commencement date of this Agreement may at a later date become part of the Fletcher Group. For the avoidance of doubt, as at the commencement date of this Agreement, the Company forms part of the Fletcher Group;

“Goods” means the goods the subject of this Agreement and includes any goods to be provided by the Supplier in connection with any Services;

“GST” means the goods and services tax described in the A New Tax System (Goods and Services Tax) Act 1999 and related legislation, or any similar tax;

"Legislative Requirements" means the WHS Legislation, the Road Transport Legislation and all statutes, regulations, by-laws, ordinances and subordinate legislation, approvals, authorisations, consents, exceptions, licences, permits, determinations and the like of or from any government agency, in force from time to time. A reference in this agreement to any Legislative Requirements which later are amended or repealed includes any corresponding provision in a re-enacted or re-made Legislative Requirements;

“PPSA” means the Personal Properties Securities Act 2009 (Cth);

“PPSR” means the personal property securities register established under the PPSA;

“Purchase Order” means the order of which these terms and conditions form part;

“Purchase Price” means the price of the Goods and/or Services set out in this Agreement as varied (if applicable) in accordance with clause 2(a);

"Road Transport Legislation" has the meaning set out in section 6 of the Road Transport Act 2013 (NSW) and also includes the Road Safety Act 1986 (Vic); any comparable legislation in other States and Territories; any regulations made under these Acts.

“Security Interest” means a security interest that is subject to the PPSA;

 “Services” means the services the subject of this Agreement;

“Supplier” means the party to whom the Purchase Order is issued;

 “tax invoice” means a valid tax invoice that:

(v)      meets the requirements of the legislation and any regulations governing the GST and any relevant requirements of the Australian Taxation Office (or other relevant administering body or person);

(vi)     sets out the amount in respect of which GST is payable and the amount of that GST;

“this Agreement” means the agreement formed upon acceptance of the Purchase Order by the Supplier, which will be on the terms and conditions set out herein.

"WHS Legislation" means the Work Health and Safety Act (NSW) 2011 and the Work Health and Safety Regulation (NSW) 2011 or any comparable legislation in other States and Territories and any regulations made under these Acts, as applicable.

(b)      The singular includes the plural.

1.    PAYMENT

(a)       Unless otherwise agreed in writing between the parties the Company‘s liability for payment of the Purchase Price is limited to the price specified in this Agreement, which price is inclusive of all taxes, including GST (where applicable) and all labour, packaging and freight costs.

(b)      The Company will not be obliged to pay the Purchase Price unless the Supplier has provided the Company with a tax invoice for the Goods and/or Services and all delivery notes and invoices in relation to the Goods and/or Services quote the Company’s order number and are signed by an authorised signatory of the Supplier.

(c)      Unless otherwise agreed in writing between the parties and subject to compliance by the Supplier with all of its obligations under this Agreement, the Company will pay the Purchase Price within 30 Business Days after receipt of the tax invoice in accordance with clause 2(b).

2.    QUALITY

The Goods and all materials and parts used in their manufacture must conform to description, be of sound materials and quality and be equal in all respects to any specification forming part of this Purchase Order.

3.    INDEMNITY AND INSURANCE

(a)      The Supplier shall be solely liable for and shall indemnify and hold harmless the Company and its employees, officers and agents against any liability, loss, damage, claim, suit, action, expense or proceedings of whatsoever nature and whensoever made or instituted relating to or arising as a result of any action taken or omitted by or any other default or negligence of the Supplier, or any other party with whom the Supplier has contracted to provide the Services and/or Goods under this Agreement, in connection with the Goods and/or Services including without limitation, whether arising:

(i)         under any statute or common law in respect of personal injury (which expression shall include illness) or death of:

(A)  any and all persons employed by it in the execution of the Services and/or the supply of Goods and any other activity directly or indirectly associated therewith, or

(B)  any and all persons whatsoever other than those referred to in sub-paragraph  4(a)(i)(A) above, or

(ii)        in respect of loss of or damage to any and all property real or personal whatsoever, or

(iii)       as a result of breach of claim of breach of third party intellectual property rights pertaining to the Services and/or Goods supplied on or in connection therewith, or

(iv)      as a result of or by reason of the failure of the Services and/or Goods supplied on or in connection therewith, or provided by law or equity to the Company.

(b)      Without limiting the generality of 4(a) above, the Supplier shall, unless the Company agrees in writing otherwise, take out and maintain the following insurance for the duration of this Agreement and any extension of it;

(i)         Workers' compensation insurance as required by law;

(ii)        public and products liability insurance covering the Supplier’s services and/or Goods supplied under this Agreement with a limit of not less than $20,000,000 (or such other amount as the Company agrees to in writing) for any one occurrence;

(iii)       motor vehicle liability insurance (including “gap” coverage) for claims in respect of personal injury or death not covered nor able to be covered by insurance referred to in (b)(ii) above in respect of all mechanically propelled vehicles used by the Supplier in connection with the performance of the Services and/or the supply of Goods under this Agreement for an amount of not less than $20,000,000 (or such other amount as the Company agrees to in writing) for any one occurrence;

(iv)      motor vehicle third party liability insurance as required by law in the relevant States or Territories in which the Services and/or Goods supplied by the Supplier under this Agreement are carried out;

(v)       insurance for the full replacement value of the Goods against damage or destruction by usual and reasonable perils having regard to the nature of the Goods from the time Goods leave the Supplier’s place of business until delivery of the Goods to the Company; and

(vi)      any additional insurance required by law.

(c)      The Supplier shall ensure that all subcontractors are protected by similar insurances, as referred to in clause 4(b).

(d)      Except for workers compensation, employers liability and statutory motor vehicle third party liability insurances, the Supplier shall ensure that all insurances to be taken out pursuant to clause 4(b) and such other insurances which the Supplier considers necessary shall:

(i)         name the Company and their respective officers and employees as interested parties;

(ii)       include a cross liability clause which includes a waiver by insurers or underwriters of all expressed or implied rights of subrogation against the Company and their respective officers and employees; and;

(iii)      provide that all the provisions thereof, except the limits of liability, shall operate in the same manner as if there was a separate policy covering each insured.

(e)      The policies to be affected by the Supplier pursuant to clause 4(b) herein shall provide that the insurance cover shall not be materially changed or cancelled without thirty (30) days prior notice in writing to the Supplier to do so. Should such notice be given the Supplier shall immediately advise the Company before continuing with the performance of the Services and/or the supply of Goods under this Agreement.

(f)        Before proceeding with the execution of the Services and/or the supply of Goods under this Agreement and at such times as the Company may require, the Supplier shall provide to the Company evidence of the existence and coverage of insurances requires under clause 4(b) to such extent as the Company may require, including proof that premiums have been periodically paid.

4.    GST

(a)      Any reference in this clause 5 to a term defined or used in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) is, unless the context indicates otherwise, a reference to that term as defined or used in that Act.

(b)      Unless expressly included, the consideration for any supply made under or in connection with this Agreement does not include an amount on account of GST in respect of the supply (GST Exclusive Consideration) except as provided under this clause 5.

(c)      Any amount referred to in this Agreement (other than an amount referred to in clause 5(h)) which is relevant in determining a payment to be made by one of the parties to the other is, unless indicated otherwise, a reference to that amount expressed on a GST exclusive basis.

(d)      To the extent that GST is payable in respect of any supply made by a party (Provider) under or in connection with this Agreement, the consideration to be provided under this Agreement for that supply (unless it is expressly stated to include GST) is increased by an amount equal to the GST Exclusive Consideration (or its GST exclusive market value if applicable) multiplied by the rate at which GST is imposed in respect of the supply.

(e)      The recipient must pay the additional amount payable under clause 5(d) to the Provider at the same time as the GST Exclusive Consideration is otherwise required to be provided.


 

(f)        The Provider must issue a tax invoice to the recipient of the taxable supply at or before the time of payment of the consideration for the supply as increased on account of GST under clause 5(d) or at such other time as the parties agree.

(g)      Whenever an adjustment event occurs in relation to any taxable supply made under or in connection with this Agreement the Supplier must determine the net GST in relation to the supply (taking into account any adjustment) and if the net GST differs from the amount previously paid under clause 5(e), the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable.

(h)      If one of the parties to this Agreement is entitled to be reimbursed or indemnified for a loss, cost, expense or outgoing incurred in connection with this Agreement, then the amount of the reimbursement or indemnity payment must first be reduced by an amount equal to any input tax credit to which the party being reimbursed or indemnified (or its representative member) is entitled in relation to that loss, cost, expense or outgoing and then, if the amount of the payment is consideration or part consideration for a taxable supply, it must be increased on account of GST in accordance with clause 5(d).

5.    INSPECTION

The Supplier agrees that the Company or its designated representatives shall have full and free access at all reasonable times to inspect and discuss all work the subject of this Purchase Order while in any stage of engineering, manufacture or installation at the shops, factories or other places of business of the Supplier or the subcontractor or suppliers of the Supplier. The Supplier shall make this a condition of any subcontracted work. The Company or its designated representatives shall have the right to reject the work performed that does not conform to the requirements of this Agreement whereupon the work rejected shall be  re-done at no additional cost to the Company. Any such inspection shall not relieve the Supplier of any obligations contained in this Purchase Order and failure to reject shall not be taken as approval of the work.

6.    PACKING/TRANSPORTATION

No packing or boxing or haulage or other transportation charges will be payable by the Company unless specified on the face of the Purchase Order.

7.    CARRIER

The Company may designate the carrier, delivering agent and routing of the Goods and/or Services the subject of this Purchase Order provided this shall not entail additional cost to the Supplier.

8.    CHAIN OF RESPONSIBILITY

(a)      Notwithstanding the Supplier may not load or unload the Goods, the Supplier must comply, and ensure that all of its employees, agents or subcontractors comply with all Legislative Requirements that apply to the transport of goods by road including but not limited to mass, loading, dimension, fatigue management requirements and speed compliance requirements of the Road Transport Legislation.

(b)      The Supplier must establish, implement and maintain for the term of this Agreement appropriate policies, procedures and business practices to ensure its business practices comply with the requirements of the Road Transport Legislation and authorises the Company (or its authorised agent) to carry out occasional or periodic audits of the Supplier's business practices.

(c)      Without limiting the above or any other requirement in this Agreement, the Supplier will, in respect of each delivery of the Goods requested by the Company in accordance with the Agreement:

(i)        ensure that the Goods loaded are correctly and securely loaded, and safely unloaded and that  the Road Transport Legislation has been complied with; and

(ii)       if requested by the Company, provide to the Company, once the loading has been completed, written notice that the loading has been completed in compliance with the Road Transport Legislation and other applicable Legislative Requirements.

(d)      The Supplier must obtain and maintain, and ensure that its subcontractors obtain and maintain, all licences required by Legislative Requirements.

(e)      The Supplier shall ensure that all vehicles have all required current licences, permits and certificates as required by Legislative Requirements.

(f)        The Supplier is solely responsible for any fines or infringement fees incurred and must notify the Company of any Road Transport Legislation offences committed by the Supplier in connection with this Agreement.

(g)      The Supplier must decline to carry a consignment in one load if in the Supplier's opinion it may exceed the mass, loading or dimension requirements under Legislative Requirements including but not limited to the Road Transport Legislation.

(h)      To the extent permitted by law, the Supplier indemnifies the Company and each member of the Fletcher Group and their respective officers, employees and agents in relation to any loss or claim in connection with a breach by the Supplier or its employees, agents or subcontractors, of the Road Transport Legislation.

9.    WARRANTIES

To the extent applicable, the provisions of sections 60, 61 and 62 of the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (as amended) shall form part of this agreement as if the same were set out in full herein with the effect that they would have if:

(a)      “the Company” was substituted for “consumer”, and

(b)      the “Supplier” was substituted for the words  “a supplier”, or “the supplier” (as applicable).

10.   TIME

Time is of the essence with respect to this Agreement. Extension of time may be granted at the sole discretion of the Company. In the event that an extension of time in respect of this Purchase Order is granted by the Company, time shall remain of the essence in respect of any such extension. If the Supplier is unable to make delivery of the Goods or to complete the Services within the time stipulated in this Purchase Order or within any extended time, the Company shall be at liberty to either:

(a)      cancel this Purchase Order without prejudice to any right or remedy which shall have accrued or shall thereafter accrue to the Company, or

(b)      make special arrangements for the transport of the Goods to site unless the delay results from the Company’s own action or omission, and the Company may debit the Supplier with any transport and related expenses incurred over and above those which would have been incurred had delivery not been delayed.

11.   DELIVERY

(a)      The Supplier must:

(i)        take all reasonable steps to ensure that the Goods are properly and safely packaged and in accordance with any reasonable directions given by the Company from time to time, including size and weight of cartons and pallets used and must ensure that the Goods are protected against all damage and deterioration during transportation; and

(ii)       use clear printed legible labels and mark the relevant quantity, product description and Company code or material number (where relevant) on the outside of the packaging and on the delivery docket which must be attached to the outer and inner (if applicable) packaging in a plastic envelope.

(b)      The Goods must be delivered by the Supplier or its agent at the Supplier’s expense to the delivery point and by the due date set out in this Purchase Order or as otherwise advised by the Company. Where no delivery point is stated and the Company has not otherwise advised the delivery point, the delivery point shall be the address of the Company.

12.   ACCEPTANCE, REJECTION AND RETURN OF DEFECTIVE GOODS

(a)      The Goods are not accepted by the Company until the Company confirms in writing that the Goods have been accepted. The Company may in its absolute discretion return Goods at the Supplier's expense which exceed the Purchase Order or which have not been approved by the Company in writing.

(b)      If the Goods have any defect or do not conform with the Purchase Order (respectively Defect and Defective Goods), the Company may:

(i)        within 14 days of becoming aware of the Defect, notify the Supplier, in writing, of the Defect;

(ii)       provide access to, or a photo or sample of, the Defect or Defective Good to the Supplier; and

(iii)      if the Supplier has not responded to the Company within 14 days of the date of the notice issued in accordance with clause 13(b)(i), dispose of or return the Defective Goods to the Supplier at the Supplier's cost.

(c)      If the Company has complied with clause 2(c) the Supplier must credit the Company with an amount equal to the price of the Defective Goods and any reinstallation costs incurred by the Company.

(d)      Nothing in clauses 13(b) or 13(c) affects in any way the liability of the Supplier to the Company under any other provision of this Agreement in respect of the supply of Defective Goods.

(e)      From the date of the notice issued under clause 13(b)(i) until the Defective Goods are returned to the Supplier, the Defective Goods will be held by the Company at the Supplier's risk and the Supplier is liable for any loss, damage or expense suffered or incurred by the Company in relation to the Defective Goods.

13.   RISK

Risk in the Goods passes to the Company on acceptance in accordance with clause 13(a).

14.   TITLE

(a)      Title to the Goods passes to the Company on delivery in accordance with clause 12(b),

(b)      Where any payment for or in respect of any Goods or part thereof is made by the Company prior to delivery, title to and property in the completed or partly completed Goods and any materials and parts to be used in their manufacture in respect of which such payment has been made passes to the Company and the same shall be appropriately marked by the Supplier. The risk therein shall remain with the Supplier until acceptance of the Goods by the Company in accordance with clause 13(a).

15.   PPSA

(a)      The Supplier acknowledges that this Agreement gives rise, or may give rise, to one or more Security Interests.

(b)      Nothing in this Agreement may be taken as creating any Security Interest which attaches later than the time contemplated by s 19(2) of the PPSA.

(c)      The Supplier acknowledges that the Company has not agreed to subordinate any Security Interest that arises, or may arise, under this Agreement in favour of any other person.

(d)      The Supplier agrees that the Company may, at the Supplier's cost and expense, register one or more financing statements or financing change statements on the PPSR in relation to any Security Interests that arise, or may arise, under this Agreement. The Supplier undertakes to notify the Company in writing of any proposed change to the Supplier's name, address or any other details that have been, or are required to be, recorded on the PPSR in connection with any such Security Interest at least 7 days before that change takes effect.

(e)      To the extent permitted at law, the Supplier and the Company acknowledge and agree that the following provisions of the PPSA do not apply: sections (enforcement methods)118, 125, 129(2) and (3), 134(2), 137, 138B(4), (notices) 95, 121( 4), 127, 130, 132, 135, 136(5), 157 (rights to remedy) 142 and 143.


 

(f)        The Supplier acknowledges that, the Company may exercise any other rights it has in addition to those in Chapter 4 of the PPSA which are not to be limited by operation of s123 of the PPSA.

(g)      The Supplier must:

(i)        (perfection) do or cause to be done anything which the Company considers necessary or desirable at the Suppliers expense to perfect and protect any Security Interest that arises, or may arise, under this Agreement; and

(ii)       (registration) provide the Company with all information and assistance the Company requires to ensure that the registration of any Security Interest is, and remains, fully effective and with the requisite priority the Company requires.

(h)      Subject to clause 16(e), any notice required under the PPSA is to be given and served in accordance with the notice requirements under the PPSA.

16.   WORK HEALTH AND SAFETY

The Supplier must comply, and ensure that all of its employees, agents or subcontractors comply, with the WHS Legislation. If the Supplier enters the premises of the Company, the Supplier must comply and must ensure that all of its employees, agents or subcontractors comply, with any work health and safety policy, practice or procedure adopted or required by the Company from time to time.

17.   DEFAULT

A breach by the Supplier of any of the terms of this Agreement shall constitute an event of default. On the occurrence of an event of default the Company may (without prejudice to any other remedy available to it) in its absolute discretion immediately terminate this Agreement, in which event clause 24 will apply.

18.   NO OCCUPIER'S LIABILITY

The Company and its officers, employees, agents and invitees will not be responsible for any damage done to the Supplier's property or to that of any of the Supplier's employees, agents or sub-contractors or for any personal injury sustained by any of the Supplier's employees, agents or subcontractors occurring on the Company's premises as a result of:

(a)      the negligence or recklessness of such employee, agent or subcontractor; or

(b)      if such employee, agent or subcontractor has failed to comply with the occupational health and safety and security policies of the Company.

The Supplier unconditionally and irrevocably releases the Company and its officers, employees, agents and invitees from all such responsibility and agrees to indemnify the Company, its officers, employees, agents and invitees against any loss that any of the Company, its officers, employees, agents and invitees incurs or is liable for in connection with any third party claim in relation to any such circumstances, except to the extent that such circumstances were caused directly as a result of the negligence of the Company, its officers, employees, agents or invitees.

19.   CONFIRMATION OF ORDER

Upon request, the Supplier must confirm the Purchase Order details to the Company, being the Purchase Price, the quantities of the Goods ordered, the date of delivery of the Goods to the Company, the scope of the Services and the date of completion of the Services by facsimile transmissions or email within:

(a)      seven days from the date of the Purchase Order in the case of intrastate purchases; and

(b)      fourteen days from the date of the Purchase Order in the case of international purchases.

20.   CUSTOMS

(a)      The Supplier is responsible for all documentation for customs clearance of the Goods, if any. In the event that there are any additional costs incurred by the Company in relation to customs documentation, including additional duties and payments, which are the responsibility of the Supplier, the Supplier indemnifies the Company for such costs as a debt due and immediately payable.

(b)      The Supplier must fulfil its customs related obligations, including origin marking or labelling requirements and local content origin requirements, if any. Export licences or authorisations necessary for the export of the Goods are the responsibility of the Supplier unless otherwise indicated in the Purchase Order.

21.   WAIVER AND AMENDMENT

(a)      Any waiver of or amendment to the provisions of this Agreement must be in writing and signed by the Company.

(b)      A failure or delay by the Company in exercising any right, power or remedy will not operate as a waiver of any right, power or remedy, nor will a single or partial exercise of any right, power or remedy preclude any other or further exercise of that or any other power or remedy.

22.   ENTIRE CONTRACT

(a)      This Agreement forms the entire agreement between the Company and the Supplier relating to the supply of the particular Goods or performance of the particular Services and supersedes all previous agreements and understandings, whether oral or in writing, in relation to the Goods or Services, as applicable. Without limiting the generality of the foregoing any terms and conditions stated in the Supplier's acknowledgement or acceptance of this Purchase Order shall not form part of this Agreement.

(b)      In the event of any inconsistency between the terms of purchase as set out in this Agreement and the terms of sale set out in any other form of contract, invoice, acknowledgement or notice provided by the Supplier to the Company, the terms and conditions of this Agreement will prevail.

23.   CANCELLATION

(a)      If the Goods the subject of this Purchase Order are standard stock, the Company may at its option cancel at any time upon written notice any unshipped portion without further obligation hereunder except to make payment (subject of other applicable terms hereof) for the Goods actually shipped prior to cancellation.

(b)      If this Purchase Order covers Goods manufactured or fabricated to the specifications of the Company then at any time prior to completion of the work to be performed hereunder, the Company in its sole discretion, and for any or no reason may cancel the Purchase Order upon written notice to the Supplier, provided that the Company pay to the Supplier, the Supplier’s out-of-pocket costs and expenses reasonably incurred to the date of such cancellation (including its expense in connection with the cancellation of any subcontracts), as determined by the Company plus five per cent (5%) of such costs and expenses, but in no event shall the total amount to be paid hereunder exceed the Purchase Price specified on the face hereof, and provided further that if the Supplier at the time of cancellation is given is in default under any other terms of this Agreement the Supplier shall not be entitled to such five per cent (5%) of its out-of-pocket costs and expenses. Further, the Company will not be liable for any anticipatory profits or any damages caused by such cancellation.

(c)      Nothing contained in this paragraph shall affect the Company’s right to terminate this Purchase Order on account of a default by the Supplier under any of the terms and conditions of this Purchase Order or to pursue remedies as provided by law for such default.

24.   ASSIGNMENT

The Supplier may not assign this Purchase Order or amounts payable by the Company to the Supplier without the Company’s written consent.

25.   INTELLECTUAL PROPERTY

The Supplier warrants that the sale or use of any Goods supplied under this Purchase Order will not infringe or contribute to the infringement of any patents, designs or copyright. The Supplier shall defend all actions, suits or claims and shall indemnify, hold and save harmless the Company from liability of any nature or kind, including costs and expenses for, or on account, of any infringement of any patents designs or copyrights for the Commonwealth of Australia or elsewhere, by reason of the nature, form or condition of any Goods supplied by the Supplier in performance of this Purchase Order or by reason of the use or sale by the Company of such Goods for the purpose intended or reasonably foreseeable by the Supplier, provided that the Company shall not obtain any rights under this paragraph as to any action, suit or claim about which it does not give to the Supplier prompt notice in writing upon learning thereof and full opportunity to defend and dispose of such action suit or claim.

26.   FORCE MAJEURE

If the order set out in this Purchase Order becomes impossible to complete because of government intervention, hostilities (whether war be declared or not), civil strife or strikes, the Company may give notice in writing to the Supplier terminating this Purchase Order, the delivery of all Goods and/ or performance of the Services, as applicable, to be supplied hereunder. Upon termination, the Company shall be absolved from all further liability under this Agreement.

27.   DISPUTE RESOLUTION

(a)      If a dispute or difference between the parties arises in connection with this Agreement, then either party may give the other party a written notice of the dispute adequately identifying and providing details of the dispute or difference (Dispute Notice).

(b)      Within 14 days after service of a Dispute Notice, the parties must confer at least once to resolve the dispute. Each party must be represented by a person having authority to agree to such resolution. All conferences under this clause 28 must be conducted in good faith.

(c)      If the parties cannot resolve the dispute or difference within 30 days of the delivery of the Dispute Notice, the parties must refer the dispute or difference to mediation by a mediator to be agreed between the parties, or failing agreement within 14 days of the dispute or difference being referred to mediation, a mediator will be appointed by the Chair of The Institute of Arbitrators and Mediators Australia in New South Wales. The parties will share all costs of the mediation and appointed mediator equally.

(d)      If the dispute has not been resolved at mediation,  either party may, after giving notice of its intention to do so, commence litigation in respect of such dispute or difference.

(e)      With the exception of injunctive or urgent declaratory relief, complying with the provisions of clause 28 is a precondition to commencing proceedings.

(f)        While a dispute is being resolved:

(i)        the Company is not obliged to pay the disputed amount; and

(ii)       the Supplier is not entitled to suspend performance of its obligations under this Agreement.


 

28.   GOVERNING LAW

(a)      Unless otherwise agreed by the Company in writing, this Agreement is subject to the laws of the State from which the Company issued this Purchase Order.

(b)      Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process in these courts on the basis that the process has been brought in an inconvenient forum.

29.   CONFIDENTIALITY AND PRIVACY

(a)      The Supplier shall keep secret and confidential any and all information (whether oral, in writing or in any other form) relating to the operations and business of the Company or its related bodies corporate, including in particular but without limitation, data, specification, drawings, reports, trade secrets, technical information and know-how, ideas, concepts, inventions, designs, improvements, processes, systems, procedures, formulae, test data, drawings sketches, plans, business plans, production information, pricing information and financial data. The Supplier shall not disclose such information to a third party without the prior written consent of the Company.

(b)      Each party must act, and ensure that its representatives and subcontractors act, in accordance with the Privacy Act 1988 (Cth) and any other Legislative Requirement, in its collection, use or disclosure of any personal information (as defined in the Privacy Act 1988) provided by the other party.

30.   PERFORMANCE OF THE SERVICES

(a)      The Supplier shall, and shall procure that its employees, agents and contractors shall:

(i)        perform the Services in a proper and workmanlike manner using a high degree of skill, care and diligence and in strict accordance with any drawings, specifications and instructions provided by the Company;

(ii)       perform the Services so as not to impede, or interfere with, any activities being carried out on the Company’s premises;

(iii)      comply with the Company’s safety regulations and with the Company’s directions and orders in regards thereto;

(iv)     provide at their expense (except where otherwise specified in this Agreement) all labour, tools, equipment and material necessary to complete the Services;

(v)      enter upon the Company’s premises at their own risk; and

(vi)     comply with all Legislative Requirements.

(b)      The Supplier shall not subcontract or assign the Services or any part thereof without the Company’s prior written consent.

(c)      The Supplier performs the Services as an independent contractor and not as an agent or employee of the Company.

(d)      If the Supplier’s performance of the Services is in any way defective the Supplier shall, if directed by the Company, re-perform the Services at no cost to the Company until completion of the Services is to a standard acceptable to the Company, without prejudice to any remedies available to the Company whether pursuant to this Agreement, at law or in equity.