Terms & Conditions for purchase

Terms & Conditions for purchase
Terms and Conditions of Purchase
1.
DEFINITIONS
In these terms and conditions:
“Conditions” means these terms and conditions of purchase including
Quality Requirements, Specifications and conditions noted on the
Purchase Order, and any agreed written variations;
“Goods” means the goods described in the Purchase Order;
“Intellectual Property Rights” means all intellectual property rights
including current and future registered and unregistered rights in respect
of copyright, designs, circuit layouts, trade marks, trade secrets, knowhow, confidential information, patents, invention and discoveries and all
other intellectual property as defined in article 2 of the convention
establishing the World Intellectual Property Organisation 1967.
“Loss” means any loss, liability, cost (including legal costs), expense,
claims, suits, actions and damages (whether ordinary, special or
consequential) incurred by the Purchaser including, but not limited to,
rework, removal and reinstallation costs, field service costs and
shipping relating to this Agreement;
“Purchaser” means AHI-Carrier (Australia) Pty Ltd specified on the
Purchase Order;
“Purchase Order” means the Purchaser’s order overleaf or attached to
these Conditions;
“Quality Requirements” means the quality requirements relating to the
Goods or Services which have been supplied by the Purchaser to the
Supplier;
“Services” means the services described in the Purchase Order;
“Specifications” means any technical or other specification relating to
the Goods or Services which have been supplied by the Purchaser to the
Supplier; and
“Supplier” means the person or body corporate that supplies the Goods
or Services to the Purchaser.
2.
PURCHASE ORDERS
2.1
Purchase Orders will be placed by the Purchaser with the
Supplier from time to time. These Conditions shall apply to all
Purchase Orders to the exclusion of any terms and conditions or any
other materials which the Supplier may purport to apply or which are
endorsed upon any correspondence or documents issued by the Supplier
irrespective of their date of communication to the Purchaser.
2.2
The Purchase Order shall specify the quantities of the
particular Goods or Services and delivery dates.
2.3
The
Purchaser may, at any time, terminate a Purchase
Order, in whole or in part, without cause, upon written notice to the
Supplier. Following any such termination the Supplier shall, to the
extent specified by the Purchaser, stop all work on the purchase order,
and cause its suppliers and subcontractors to stop work. Charges for
any such termination of the Purchase Order will be limited to actual
non-recoverable costs incurred by the Supplier which the Supplier can
demonstrate were properly incurred prior to the date of termination. In
no event shall such reimbursement include anticipated profits for
undelivered Goods or unperformed Services.
2.4
The Purchaser may , at any time, terminate a Purchase Order,
in whole or in part and without penalty, upon written notice to the
Supplier if the Supplier (i) fails to make delivery of the Goods or
perform the Services within the time specified in the Purchase Order;
(ii) fails to replace defective Goods or Services in accordance with
these Conditions; (iii) fails to perform any other term specified in these
Conditions; or (iv) becomes insolvent, files or has filed against it a
petition in bankruptcy, or makes an assignment for the benefit of
creditors.
2.5
Acceptance of a Purchase Order by the Supplier constitutes
acceptance of these Conditions.
3.
SUPPLY
3.1
The Supplier agrees to supply the Goods to the Purchaser in
accordance with any Purchase Order placed by the Purchaser from time
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to time and must ensure that the Goods or Services comply with the
Quality Requirements and Specifications.
3.2
The Supplier will notify the Purchaser at least 90 days before
ceasing production of any Goods to enable the Purchaser to analyse
potential needs for and to place a final purchase order for the Goods.
4.
PRICING
4.1
The price specified in the Purchase Order is firm, and is not
subject to increase. The price is inclusive of all costs of packaging,
delivery, duties and taxes payable in any country, and any other
incidental charges. Unless otherwise expressly agreed in writing, all
prices are F.O.B. destination collect in accordance with the Purchaser’s
shipping instructions.
5.
COST REDUCTION
5.1
The Supplier agrees to develop a cost reduction plan and
must use its best endeavours to continuously explore and realise cost
saving opportunities. The Supplier will review its cost reduction plan
with the Purchaser on a bi-annual basis. All cost savings must be
passed to the Purchaser immediately via a price reduction to the
affected Goods or Services.
6.
DELIVERY
6.1
The Goods must be received on the dates and at the
destination specified in the Purchase Order. Time is of the essence. If
the Supplier fails to meet any such delivery date, the Purchaser may,
without limiting its other rights or remedies, cancel all or part of the
Purchase Order. Title and risk in the Goods passes to the Purchaser on
delivery.
6.2
Notwithstanding any prior inspections or payments, all
Goods shall be subject to: (i) final inspection which may include
measurement, testing or examination; and (ii) acceptance at the
Purchaser’s facility within a reasonable time after the receipt of the
Goods.
6.3
The Purchaser’s acceptance does not waive rights. If the
Purchaser accepts any Goods, this does not extinguish any of the
Purchaser’s rights if the Goods do not comply with these Conditions.
6.4
The Purchaser may reject any Goods which do not comply
strictly with these Conditions. Once the Goods are rejected, the
Purchaser may require: (i) the Supplier to refund any payment within 7
days; or (ii) replacement of the Goods within 24 hours at the Supplier'
s
cost. Title and risk in the rejected Goods immediately re-vests in the
Supplier. The Supplier is liable for all Loss incurred by the Purchaser
due to the rejection of the Goods. The Supplier must, at its cost,
remove the rejected Goods any of the Purchaser’s intellectual property
or any other distinguishing features such as name or logos.
7.
PAYMENT
7.1
Payment for Goods or Services supplied by the Supplier to
the Purchaser will be tendered 60 days from receipt of invoice (rendered
in accordance with clause 7.2) and acceptance of the Goods unless
otherwise agreed to in writing between the Parties. Payment of the
invoices does not constitute acceptance of the Goods and shall be
subject to adjustment for errors, shortages or defects in the Goods, or
any other failure of the Supplier to meet the requirements of the
Purchase Order.
7.2
Invoices must contain the following information: purchase
order number, item number, description of Goods or Services, sizes,
quantities, weight, unit prices, value added taxes payable and extended
totals.
8.
QUALITY
8.1
The Supplier shall have its manufacturing quality system
certified to one of the international specifications nominated by the
Purchaser by an independent and qualified third party.
8.2
The Purchaser may perform periodic quality audits and the
Supplier shall cooperate as required in the inspection and testing of
Goods, components, equipment and quality systems.
8.3
Without limiting any other remedies available to the
Purchaser, the Supplier will be charged the Purchaser'
s reasonable
actual costs incurred as the result of the provision of defective Goods.
8.4
The Supplier may outsource elements of production to third
parties, provided that the Supplier retains responsibility for the quality
of the final Goods, the ability to trace the source of material and
product numbers is maintained, and the Supplier obtains written
approval from the Purchaser prior to outsourcing or substituting third
party producers.
8.5
The Supplier must inform the Purchaser of any proposed
changes to processes or materials as they relate to the Goods or Services
and obtain written approval from the Purchaser to implement the
proposed changes.
9.
SPARE PARTS
9.1
The Supplier shall make spare parts available for 10 years
after the last delivery date of any Goods.
10.
MANAGEMENT REVIEWS
10.1
The Supplier agrees to meet with the Purchaser’s
management on a periodic basis to review delivery performance, quality
issues, continuous improvement activities and cost reduction strategies.
11.
PURCHASER'S PROPERTY
11.1
The Purchaser or its licensors own the Intellectual Property
Rights and all other rights in all drawings, specifications, artwork, data,
supplies, equipment, tooling, dies, moulds, designs, fixtures, patterns
and any other materials provided by the Purchaser to the Supplier in
connection with this agreement (“Purchaser Material”).
11.2
Where the Supplier develops a product that is supplied to the
Purchaser under a Purchase Order:
(i)
to the extent that the development of the product involves the
creation of Intellectual Property Rights by the Supplier (“Developed
Material”), the Supplier assigns unconditionally to the Purchaser the
Developed Material upon its creation. The Supplier will do all things
necessary to give effect to the assignment of Developed Material,
including executing any documents which are reasonably required by
the Purchaser to be executed; and
(ii)
to the extent that the development of the product involves the
use or modification of drawings, specifications, artwork, data, supplies,
equipment, tooling, dies, moulds, designs, fixtures, patterns or any other
materials owned by the Supplier or its licensors (“Supplier Material”),
the Supplier grants the Purchaser a non-exclusive, royalty-free,
irrevocable and perpetual licence (including the right to sub-license) to
use the Supplier Material to the extent necessary for the Purchaser to
operate, maintain, develop, repair or otherwise support the product.
11.3
The Purchaser grants the Supplier a limited non-exclusive,
royalty-free, non-transferrable and non-sublicensable licence to use the
Purchaser Material and the Developed Material only for the sole
purpose of fulfilling a Purchase Order. The Supplier must not use the
Purchaser Material or Developed Material for any other purpose
without the Purchaser’s prior written approval.
11.4
Upon the termination or expiry of this agreement, the
Supplier must:
(i)
immediately cease to use any of the Purchaser Material or
Developed Material; and
(ii)
at the Purchaser’s option, return to the Purchaser all records
of the Purchaser Material or Developed Material in the Supplier’s
possession or control, or destroy or permanently disable access to all
records of the Purchaser Material or Developed Material in the
Supplier’s possession or control.
If requested by the Purchaser, the Supplier agrees to provide a statutory
declaration by its chief executive officer that the Supplier has complied
with this clause 11.4.
11.5
The Supplier warrants that the Developed Material and
Supplier Material, and the exercise of the Purchaser’s rights in respect
of the Developed Material and Supplier Material under this agreement,
do not infringe the Intellectual Property Rights of any person.
11.6
The Supplier indemnifies the Purchaser against all loss,
damage, expense or liability arising out of or in connection with:
(i)
any breach of the warranty in clause 11.5; or
(ii)
any third party claim that the Developed Material or Supplier
Material, or the exercise of the Purchaser’s rights in respect of the
Developed Material or Supplier Material under this agreement,
infringes their Intellectual Property Rights.
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11.7
The Supplier further agrees not to use the Purchaser'
s
trademarks and trade names on any products except on the Products,
including packaging, sold to Purchaser.
12.
ETHICS
12.1
The Supplier shall comply in all aspects, and take reasonable
steps to ensure compliance by its employees and subcontractors, with
the Code of Ethics.
13.
CONFIDENTIALITY
13.1
As part of the business relationship between Purchaser and
Supplier, Supplier may learn or come into possession of information or
data that constitutes trade secrets, know-how, confidential information
or other data which are confidential information of Purchaser
(“Confidential Information”). Confidential Information does not
include information which is already in the public domain, except to the
extent that the information is in the public domain by reason of a breach
of this clause 13.2 Supplier must not disclose the Confidential
Information to any person except:
(i)
representatives of the Supplier requiring it for the purposes of
this agreement, subject to the recipient agreeing to be bound by
confidentiality obligations no less onerous than those in this clause 14.
Any act or omission by the recipient in respect of the Confidential
Information will be deemed to be an act or omission by the Supplier;
(ii)
with the consent of the Purchaser;
(iii)
if the Supplier is required to do so by law or the lawful
request of a stock exchange; or
(iv)
if the Supplier is required to do so in connection with legal
proceedings relating to this agreement or any other agreement between
the parties.
14
WARRANTY & INDEMNITY
14.1
The Supplier warrants that the Goods: (i) are safe; (ii) are
free from encumbrances, defect or fault; (iv) are of merchantable
quality; (v) include appropriate and correct warnings and instructions;
(vi) are fit for the purpose for which purchased; (vii) comply with any
representations, descriptions, samples or Specifications including
quality, function, performance or designs; and (viii) include a
Supplier’s warranty for a period of at least 12 months that passes to the
consumer from the Purchaser without liability to the Purchaser.
14.2
The Supplier must defend, indemnify and hold the Purchaser,
its affiliated companies, and their representatives, successors, and
assigns harmless from and against any and all Loss arising directly or
indirectly from or in connection with: (i) the acts, negligence, omissions
or willful misconduct of the Supplier; (ii)the Goods supplied; (iii) a
breach of any of the Supplier’s warranties or any other term specified in
these Conditions; (iv) a claim that any Goods supplied to the Purchaser
infringe upon or misappropriate any patent, copyright, trademark, trade
secret or other intellectual property interest of another; or (v) a claim of
any lien, security interest or other encumbrance made by a third party.
15.
MISCELLANEOUS
15.1
The Supplier may not assign or otherwise transfer its rights
and obligations under these Conditions without the prior written consent
of the Purchaser.
15.2
The laws of the territory in which the Goods are supplied or
the Services performed will govern the Purchase Order.
15.3
The Supplier must obtain and maintain public liability
insurance with a reputable insurer for at least US$10 million, and insure
the Goods with a reputable insurer for their full replacement cost.
15.4
The Supplier is an independent contractor of the Purchaser.
15.5
These Conditions constitute the entire agreement between the
parties as to its subject matter and supersedes any prior understanding
or agreement between the parties.
15.6
If either party gives or is required to give a notice to the other
party, it must be in writing and directed to the General Manager. The
notice may be sent by registered post or facsimile.
15.7
The failure of a party to require performance of any
obligation under these Conditions is not a waiver of that party’s right to
insist on performance or, or claim damages for breach of, that
obligation unless that party acknowledges in writing that the failure is a
waiver.
15.8
Each provision of these Conditions is severable. Severance
does not affect any other provision.
15.9
No variation to these Conditions will be of any force or effect
unless in writing signed by an authorised representative of each party.
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