Purchase Order Terms and Conditions
- In these terms and conditions:
Claim means any cost, expense, loss, damage, claim, action, proceeding or liability whatever and however arising (including legal costs on a full indemnity basis).
Contract means the contract comprising these terms and conditions, the Special Conditions the PO and, subject to clause 37, all documents attached to or expressly incorporated by reference in the PO.
Delivery Place means the delivery to location specified in the PO.
Deliverable means any output to be provided as a product of performing Services.
Price means the price for the supply of the Goods or Services specified in the PO.
Goods means goods manufactured, materials, equipment, parts and any other ancillary items provided by the Vendor to Us as set out in the PO.
Intellectual Property means all forms of intellectual property rights.
PO means the purchase order attached to these conditions.
Services includes all services to be provided and performed by the Vendor as set out in the PO, and includes any Deliverables and any part, and the results of, the specified Services.
Special Conditions means the special conditions (if any) expressly stated in the PO.
Supplies means the Goods and Services.
Us, We, Our or Peregrine means the buyer of the Goods and Services as set out in the PO.
Vendor or You means the seller of the Goods and Services specified in the PO.
Any terms expressly defined in the PO have the same meaning when used in these conditions.
- Agreement: We have requested You to provide the Supplies and You have agreed to do so in accordance with the Contract.
- Timing: You will provide the Supplies to Us in accordance with the time frames set out in the PO (if any) and, in absence of any time frames, as We reasonably determine. Time will be of the essence with respect to Your obligations under this clause 3.
- Variations: We may request a variation of the Supplies at any time prior to delivery by written notice to You; any such variation does not invalidate the Contract.
- Cost of Variations: Within 10 business days of a variation request or such other period as We agree in writing, You must notify Us of the cost and time to carry out the variation. If We accept the cost and time of the variation We will direct You to carry out the variation and the Contract will be varied accordingly.
- Condition of Goods: All Goods must be new, of merchantable quality, conform to any sample, free from defects and fit for their purpose.
- Standard of Services: You will perform all Services and provide the Deliverables in a proper, competent and professional manner, with a high degree of care, skill and diligence, in a timely and expeditious way and free from errors.
- Packaging: Goods must be packed in accordance with Our instructions or, if there are no instructions, they must be safely and securely packed in accordance with relevant industry standards and any transportation carrier requirements.
- Delivery of Goods: You must deliver the Goods to the Delivery Place by the Delivery Date. All Goods must be accompanied by a written delivery note setting out Our PO number, description and quantity of goods supplied, failing which We may return Goods to You at Your expense.
- Completion of Services: The Services must be completed, and You must deliver the Deliverables to the Delivery Place, by the Delivery Date.
- Law and Policy: You must at all times comply with all applicable laws and standards and Our policies, procedures and guidelines notified to you or as set out on Our website as amended from time to time.
- Direction: You must at Your cost, in performing Your obligations under the Contract, comply with all reasonable and lawful directions, instructions and requirements of Our representative.
- Approvals: Any approval or consent given, or agreement made, by Us, Our officers or employees in connection with this Contract does not limit or qualify Your obligations unless it is in writing and is expressly stated to do so.
- Price inclusive: Unless expressly specified in the PO all Prices are fixed and not subject to escalation, in Australian Dollars, fully inclusive of packing and delivery costs, and inclusive of any other direct and indirect taxes, levies, duties, costs and charges.
- Receipt, Inspection: We will use reasonable endeavours to inspect Goods and Deliverables as soon as practical following delivery.
- Defective Supplies: If we find that any Goods, Services or Deliverables are defective or fail to meet required specifications at any time in the 12 month period following the actual delivery date, then We may issue a notice requiring You, at Your cost, to repair or replace (as We determine) any defective Goods and Deliverables or re-perform non-compliant Services as soon as possible.
- Title and Risk: Title to and risk in the Goods and Deliverables passes to Us, free and clear from all interests and encumbrances upon payment of the Price by Us.
- Invoicing: You may invoice Us for Supplies after they have been delivered. Payment by Us does not constitute Our agreement that any Supplies conform with the Contract.
- Payment: Subject to clauses 20 and 21 We will pay You for delivered Supplies by the last day of the next month following receipt of a valid tax invoice.
- Credits: Without limiting Our rights at law, we may claim credits for any Goods provided to Us that are in Our opinion damaged, expired or otherwise non-merchantable and may set off such credits against any amount owing by Us to You.
- Withholding: We may withhold payment of any amount which We dispute is payable and may set-off from any payment any amount You owe to Us.
- Release: You provide the Supplies at Your own risk and, in this regard, You irrevocably release Us from all Claims suffered or incurred by, or brought, made or recovered by any person against You in connection with any act or omission by Us, Our officers, employees, agents and subcontractors (whether in contract, tort (including negligence) or otherwise) including without limitation, in connection with any damage or destruction of property and any injury, disease or death of persons.
- Indemnity: You irrevocably indemnify Us against all Claims suffered or incurred by, or brought, made or recovered by any person against Us in connection with the provision of the Supplies, any breach of the Contract by You, any act or omission by You, Your officers, employees, agents and subcontractors (whether negligent or otherwise), any damage or destruction of property and any injury, disease or death of any persons in connection with the provision of the Supplies, reduced proportionately to the extent that Our negligence causes the Claim.
- Insurance: You must hold and maintain product and public liability insurance of at least twenty million dollars and, if You provide Services, professional indemnity insurance of at least ten million dollars, or such lesser amounts approved by Our representative. You must provide certificates of currency in respect of these insurances immediately upon Our request.
- Liability: Your liability to Us in connection with the provision of the Supplies, other than any Claim arising in connection with Your (including Your employees, officers, contractors and agents) wilful default, fraud, negligence or any Claim damage or destruction of property, injury or death of any person, is limited to the amount equal to ten times the Price.
- Assignment and Sub-contracting: You may not transfer or subcontract any other right, benefit or interest under this Contract without Our prior written consent.
- Confidentiality: You will keep confidential and not disclose to any person the terms of the Contract, the Supplies, the Deliverables, any information related to Us or in connection with Our business or Our Intellectual Property, except to the extent required by law or order of a court or tribunal or with Our prior written consent.
- Intellectual Property: Any Intellectual Property produced by You or Your officers, employees, agents or contractors in connection with the provision of the Services (including the Deliverables) vests in Us upon its creation and You waive, and will procure the waiver by Your officers, employees, agents and subcontractors of any moral rights You or they may have in respect of that Intellectual Property. To the extent required for Us to enjoy the full benefit of, the Goods or Services You grant Us an irrevocable, perpetual, word-wide and royalty-free licence to use, modify and adapt Your Intellectual Property developed before the date of the Contract or otherwise not in connection with the Services.
- Suspension: We may at any time by notice to You suspend the Contract for such period and on such terms as We decide. Provided You are not in default under the Contract and have mitigated any costs incurred You may issue an invoice for the Goods or Services supplied, and reasonable and substantiated costs properly incurred, prior to receipt of the suspension notice.
- Termination: We may terminate the Contract with immediate effect if You breach any part of it and fail to remedy such breach within 5 days of notice from Us to do so, or immediately if You go into liquidation, are deregistered, dissolved, or if a receiver or external administrator has been appointed to You, and You indemnify Us for any loss, damages, costs and expenses We incur or suffer in connection with the Termination. We may also terminate the Contract for convenience at any time by 30 days’ notice to You, even if You are not in breach, and will pay Your reasonable and substantiated costs arising directly from the termination, but not exceeding an amount equal to the Price outstanding at the date of termination.
- Conflict of interest: You must ensure that no conflict of interest arises in relation to the performance of Your obligations under the Contract, and immediately inform Us of any matter which may give rise to a conflict at any time.
- Audit rights: We may audit Your costs in relation to the Supplies and You will provide all information and assistance reasonably necessary to undertake such an audit.
- No waiver: The failure, delay, relaxation or indulgence on Our part in exercising any power or right conferred on Us by this Contract does not operate as a waiver of that power or right, nor does any single exercise of any power or right preclude any other or further exercise of any other right or power under this Contract.
- Joint and several: If You comprise more than one person or body, the Contract applies to You jointly and severally.
- Trustee: If You enter into the Contract as trustee of a trust, You do so in Your personal capacity and as trustee, and represent and warrant to Us that You have the power to enter into the Contract and that have an unrestricted right of indemnity out of the trust fund.
- Contractor only: You are only Our contractor and not Our employee or agent.
- Whole agreement: Subject to clause 38 the Contract sets out the whole agreement between You and Us relating to the Supplies and supersedes all prior contracts, arrangements and understandings. You agree that any terms provided by You to Us at any time relating to the Goods or Services (including as printed on consignment notes or other documents) will be of no legal effect and will not constitute part of the Contract (even if any of Our representatives signs such terms or annexes them to the PO).
- Special Conditions: To the extent that any Special Conditions conflict with these conditions, the Special Conditions will prevail.
- Governing law: The Contract is governed by the laws of South Australia and the parties submit to the non-exclusive jurisdiction of South Australian courts in respect of any disputes arising under or in connection with the Contract.
- Severable: If a court of competent jurisdiction determines that any provision or provisions in the Contract is void or illegal the subject provisions will be severed without effecting the remaining provisions.
- Application and contra proferentum: These conditions are not to be interpreted against Us merely because they were prepared by Us.