(d) require the Supplier to re-perform or to make good the Defective Services./li>
- 10.2 The Supplier must:
- (e) repair or replace the Defective Goods;
- (f) re-perform or make good the Defective Services; or
- (g) reimburse the Company for any direct expenses incurred in repairing, re- performing or making good (as the case may be) any Defective Goods or Services should the Supplier decline or fail in its obligations to do so,
at the Supplier’s cost, if requested to do so by the Company.
- 10.3 The provisions relating to any Warranty Period or Defective Goods or Services or both shall be in addition to and without limiting any conditions or warranty expressed or implied by statute or common law or otherwise howsoever and in particular, without limiting the generality of the forgoing, the Supplier’s liability under this Agreement shall be in addition to any condition or warranty in the Company’s favour implied by statute or common law as to the quality or the fitness for any particular purpose of the works and each part thereof.
11.1 Each party must not, and must ensure that its subcontractors do not, divulge to third parties any information relating to the Goods or Services or both, as applicable (including Intellectual Property), the other party or the supply to the Company by the Supplier, unless and until such information is within the public domain (other than by a breach of this clause) or express prior written consent has been given by the relevant party.
11.2 The Supplier shall indemnify the Company and keep the Company indemnified from and against all liabilities, losses, damages, actions, suits, proceedings, claims, costs (including legal costs) and expenses arising from any breach of this clause 11 by the Supplier whatsoever.
12. INTELLECTUAL PROPERTY
12.1 The specifications, drawings, technical instructions or any other documentation whatsoever issued to the Supplier by the Company during tendering and at the time of establishing this Agreement will remain the exclusive property of the Company and are to be kept strictly confidential.
12.2 The Supplier warrants that:
(a) the Goods supplied or Services performed by the Supplier or both and the licence granted by it to the Company do not infringe any Intellectual Property rights of any third party; and
(b) the Goods supplied or Services performed or both are not subject to any Intellectual Property rights of any third party that in any way restrict the rights of the Company or its clients to use or sell the same.
12.3 The Supplier agrees that title in all (present and future) Intellectual Property created, discovered or coming into existence as a result of, for the purposes of or in connection with the supply of the Goods or performance of the Services or both under this Agreement (other than any improvements, modifications or additions to any pre-existing Supplier IP as defined in clause 12.4 below) shall vest exclusively in the Company upon its creation (Company IP).
12.4 The Company acknowledges that the Supplier remains the owner of all Intellectual Property created, discovered or coming into existence other than as a result of, for the purposes of or in connection with the supply of the Goods or performance of the Services or both, as applicable (Supplier IP).
12.5 The Supplier grants the Company a non-exclusive, royalty free, irrevocable licence to use all Supplier IP to the extent necessary to enable the Company to exercise its rights in the Company IP.
13.1 The Supplier will indemnify the Company and keep the Company indemnified from and against all Loss arising from or in connection with:
(a) injury to (including illness or disability), or death, of any persons; and
(b) loss or destruction of or damage to or loss of use of any property,
caused or contributed to by an act or omission of the Supplier or its directors,
officers, employees, agents or contractors or by any breach of this Agreement (including any breach of a warranty), except to the extent and the proportion that it has been caused or contributed to by the willful default or unlawful or negligent act or omission of the Company.
14. FORCE MAJEURE
14.1 A party will not be liable for any delay or failure to perform any of its obligations under this Agreement (other than an obligation to pay money) if as soon as possible after the beginning of an event of Force Majeure affecting the ability of the party to perform any of its obligations under this Agreement, it gives a notice to the other party that complies with clause 14.3.
14.2 This Agreement will be suspended in the event and for the period of the event of Force Majeure, provided that each parties’ respective obligations contained in this clause 14 are complied with.
14.3 A notice given under clause 14.1 must:
(a) specify the obligations that the Party cannot perform;
(b) fully describe the event of Force Majeure;
(c) estimate the time during which the event of Force Majeure will continue; and
(d) specify the measures proposed to be adopted to remedy or abate the event of Force Majeure.
14.4 Any amendment to the Date for Completion is the Supplier’s sole remedy for any delays resulting from the event of Force Majeure where the Supplier is the affected party and the Supplier is not entitled to any increase in the Price or any damages, costs or expenses in connection with the event of Force Majeure.
15. BREACH AND TERMINATION
15.1 The Company may terminate this Agreement:
(a) at its absolute discretion by giving the Supplier seven (7) days written notice; or
(b) in the event that the Supplier is in material default of any of the terms of this Agreement for any reason (including insolvency) by written notice with immediate effect:
i. where there is a breach of clause 5.4;
ii. where the default is not capable of remedy; or
iii. where the default is capable of remedy, but the Supplier fails to remedy such default, within seven (7) days of a written notice from the Company (or such other time as the Company may agree at its absolute discretion, provided that such time is not less than seven (7) days).
15.2 In the event that the Company terminates this Agreement in accordance with sub-clause 15.1, then subject to any other rights of the Company under this Agreement the Company may, at its sole discretion:
(a) pay for the Goods delivered or Services provided by the Supplier in accordance with this Agreement prior to the date of termination; or
(b) reimburse the Supplier for the cost of materials the Supplier reasonably ordered prior to the date of termination for the purpose of providing the Goods and or performing the Services and which the Supplier is legally liable to accept and cannot otherwise utilise, but only if the materials are delivered to the Delivery Address and have become the Company’s property.
15.3 If the Company makes any payment in accordance with clause 15.2, the Supplier shall not otherwise be entitled to any other compensation for any Loss, including without limitation, anticipated profits, incurred as a result of a termination of this Agreement under this clause.
15.4 Notwithstanding any other clause of this Agreement, if the Company terminates this Agreement pursuant to clause 15.1(b), the provisions of clause 15.2(a) and (b) shall not apply.
16.1 The Supplier must at all times during the performance of this Agreement effect and maintain the following insurances:
(a) public liability insurance for at least $20 million for any one event and unlimited in the aggregate and products liability insurance for at least $10 million for any one event and in the aggregate, which shall contain a principal’s indemnity extension in favour of the Company for liability to any third party arising out of the performance of this Agreement by the Supplier;
(b) where the Purchase Order provides for the provision of professional services, professional indemnity insurance;
(c) where the Purchase Order provides for the provision of Services, workers’ compensation insurance as required by Law which shall contain a principal’s indemnity extension for both statutory liability and common law liability in favour of the Company and its respective officers and employees, and shall further contain a waiver of subrogation in favour of the Company and its respective officers and employees; and
(d) any other insurances required by Law.
16.2 When requested, the Supplier shall provide copies of certificates of currency of the above insurances.
17. LIMITATION OF LIABILITY
17.1 Despite any other provision of this Agreement but subject to clauses 17.2 and 17.3, and to the maximum extent permitted by Law, the Company’s overall liability:
(a) under, or arising out of, or in connection with this Agreement;
(b) otherwise at law or in equity including:
i. by statute to the extent permitted by law; or
ii. in tort for negligence or otherwise;
iii. on any other basis whatsoever,
iv. shall not exceed 100% of the Price.
17.2 Notwithstanding any other clause of this Agreement but subject always to clause 17.1, neither party shall be in any way be liable to the other party, including by way of indemnity, for Consequential Loss.
17.3 The limitation of liability referred to in clause 17.1 and 17.2 does not apply to liability for:
(a) loss caused or contributed to by the Supplier, its directors, employees, or sub-contractors that is:
i. covered by a policy of insurance under which the Supplier is an insured party and which it is required to effect under this Agreement; or
ii. which, but for an act or omission of the Supplier (including in respect of its disclosure obligations to any insurer), would have been covered by a policy of insurance under which the Supplier is an insured which it is required to effect under this Agreement,
(b) loss arising from the death of or personal injury to any person, or loss or damage to any property, caused or contributed to by the Supplier, its directors, employees or subcontractors;
(c) loss arising from any criminal acts, willful misconduct or fraud by the Supplier, its directors, employees or subcontractors or by any person for whose acts or omissions the Supplier is vicariously liable;
(d) loss arising from conduct of the Supplier which is repudiatory of the Agreement as a whole;
(e) loss arising from liability which, by law, the Supplier cannot contract out of; or
(f) loss arising from a breach of confidentiality or intellectual property by the Supplier.
18. DISPUTE RESOLUTION
18.1 Procedure for resolving disputes.
(a) The parties agree that all disputes relating to or arising out of this Agreement will be resolved in accordance with this clause 18.
(b) If a dispute arises then either party may give notice to the other party that must:
i. be in writing;
ii. state that it is a notice under this sub-clause 18.1; and
iii. include or be accompanied by reasonable particulars of the dispute.
(c) If a notice is given under sub-clause 18.1(b), then a senior management representative or equivalent of each of the parties (who must be authorised and must be capable of making binding decisions for each party) will meet at least once within five (5) Business Days of receipt of the notice under sub-clause 18.1(b) (or such other time as the parties may agree) and use reasonable endeavours acting in good faith to resolve the dispute.
(d) If the dispute is not resolved by the senior management representatives within the period referred to in sub-clause 18.1(c), either party may commence proceedings for the resolution of the dispute.
18.2 Notwithstanding the existence of a dispute, each party must continue to perform its obligations under this Agreement.
18.3 Where the delivery of Goods or the supply of Services are supplied in Australia, this Agreement shall be governed by and construed in accordance with the laws in force in Victoria, Australia and the parties submit to the exclusive jurisdiction of the courts of Victoria, Australia.
Agreement means this agreement, comprising:
(a) the Purchase Order;
(b) these Standard Terms and Conditions of Purchase; and
(c) any attachments or annexure specifically referred to in the Purchase Order except any contractual terms or conditions in any Supplier documentation as set out in sub-clause 1.2.
Company means the Haddarco Pty Ltd (ACN 007 431 316) or its Related Bodies Corporate named in the Purchase Order, as the case may be.
Consequential Loss means:
(a) loss of profits and revenue; and
(b) loss of production.
Defective means Goods or Services or both (or any aspect of them) which are not in accordance with clause 9.
Delivery Address means the place for delivery specified on the Purchase Order.
Date for Completion means the date specified on the Purchase Order by which the Goods are to be delivered to the Delivery Address or the Services are to be completed.
Force Majeure means any event or circumstance (or combination of events and circumstances) which:
(a) is beyond the control of the party affected by that event or circumstance or both, which could not reasonably have been foreseen at the time of entering into this Agreement and which could not reasonably have been provided against or prevented by the party affected including but not limited to an act of God, war declared or undeclared, blockage, revolution, riot, insurrection, civil commotion, sabotage, lightning, fire, earthquake, storm or flood on the Site, plague and explosion, governmental or governmental agency restraint, expropriation, prohibition, intervention or embargo;
(b) causes delay in, or prevention of, the performance by the affected party of any of its obligations under the Agreement; and
(c) cannot be prevented, overcome or remedied by the exercise by the affected party of a standard of care and diligence consistent with that of a prudent and competent company, including a strike or industrial dispute which:
i. has national or state-wide application and is not confined to the Supplier’s workforce;
ii. affects the execution of the Services at the site; and
iii. lasts for more than seven (7) consecutive days, but does not include other industrial-related disputes including strikes, lockouts, industrial difficulties, labour difficulties, work bans, blockades or picketing.
Force Majure expressely does not include:
(d) wet or otherwise inclement weather not connected to a named cyclone;
(e) lack of or inability to use funds for any reason;
(f) any occurrence which results from the wrongful act or wrongful omission of the affected party or the failure by the affected party to act in a prudent and proper manner and in accordance with good and accepted industry practices;
(g) any failure by the affected party to reach agreement with any third party necessary to enable the affected party to perform its obligations under this Agreement;
(h) an event or circumstance, where the event or circumstance or its effects on the affected party or the resulting inability of the affected party to perform its obligations could have been prevented, overcome or remedied by the exercise by the affected party of the standard of care and diligence consistent with that of a reasonable and prudent operator; or
(i) breakdown of any plant or equipment.
Goods means the goods, if any, described on the Purchase Order.
GST has the meaning given to that term under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any amendments or successor legislation as the case may be.
Intellectual Property means any intellectual or industrial property whether protected by statute, at common law or in equity, including any patent, invention, copyright, or design right (whether or not registrable), in any design, specification, process, technique, software, know how, trade secret, technical information, financial information, business method and confidential information.
(a) Commonwealth, State and local government legislation including regulations, by-laws, orders, awards and proclamations;
(b) common law and equity;
(c) government or delegated authority requirements and consents, certificates, licences, permits and approvals (including conditions in respect of those consents, certificates, licences, permits and approvals); and
(d) guidelines of any government or delegated authority with which the Supplier is legally required to comply.
Loss means any loss, liability, damage (including but not limited to any damages or compensation or any damage to reputation and damage to property), cost or expense (including legal costs on a full indemnity basis) of whatever kind and however it arises.
PPSA means the Personal Property Securities Act 2009 (Cth) and any amendments or successor legislation as the case may be.
Price means the price set out in the Purchase Order which is exclusive of GST, but is inclusive of all other costs and charges.
Purchase Order means any document or documents that describe or refer to the Goods or Services or both issued by the Company to the Supplier from time to time.
Related Bodies Corporate is defined in Section 9 of the Corporations Act 2001 (Cth) and as defined in any amendments or successor legislation.
Security Interest has the meaning given to it in the PPSA.
Services means the services, if any, described on the Purchase Order.
Supplier means the party identified as such in the Purchase Order.
Warranty Period means the period of 24 months commencing on the date of delivery of the Goods or 24 months from the date on which the Service is performed or both, as applicable.