General Terms and Conditions of Purchase
1. Acceptance of Order & Formation of Contract
This Order constitutes the entirety of the Purchaser’s offer to the Supplier and includes the Purchase Order Terms and Conditions to the exclusion of any other terms and conditions. The Supplier will be deemed to have accepted this Order by the Supplier commencing work, providing the Deliverables or otherwise by the Supplier’s words or conduct indicating acceptance.
2. Definitions
Acceptance means the Deliverables are found to comply in all respects with this Order and all goods, services, materials, Documents and other information required under this Order have been supplied to the Purchaser.
Background IP means Intellectual Property, other than Third Party IP, that is in existence at the Effective Date or is subsequently brought into existence other than as a result of the performance of this Order, that is embodied in, or attaches to, the Deliverables or is otherwise necessarily related to the functioning, operation, or commercial exploitation of the Deliverables.
Business Days means 09:00-17:00 Monday to Friday, excluding South Australian public and statutory holidays.Confidential Information means: (a). all information which is provided by or on behalf of a Party (Disclosing Party) to the other Party (Receiving Party), of any nature or in any form, for or in connection with the Order, whether before or after the Effective Date, (including but not limited to commercial, technical, economic, financial or marketing information, transaction data relating to a Party or to the Order) and whether or not marked “confidential”, “proprietary”, “sensitive” or the like; (b). all information created, ascertained, discovered or derived, whether directly or indirectly, from the information described at paragraph (a). above, but does not include information which: (c). is or becomes available to the public other than by way of contractual breach or wrongful or negligent acts or omissions of the Receiving Party; or (d). was at the time of disclosure by the Disclosing Party already known by the Receiving Party.
Consequential Loss means loss of contract, loss of profit or revenue, loss of data, loss of production, loss of use, indirect, special or consequential loss or damage, unless such loss or damage arises naturally from the relevant facts, matters or circumstances giving rise to the claim.
Counterfeit Goods means Deliverables or separately-identifiable items or components of Deliverables that: (a). are an unauthorised copy or substitute of an Original Equipment Manufacturer or Original Component Manufacturer (collectively, “OEM”) item; (b). are not traceable to an OEM sufficient to ensure authenticity in OEM design and manufacture; (c). do not contain proper external or internal materials or components required by the OEM or are not constructed in accordance with OEM design; (d). have been re-worked, re-marked, re-labelled, repaired, refurbished, or otherwise modified from OEM design but are represented as OEM authentic or as new; or (e). have not passed successfully all OEM required testing, verification screening, and quality control processes.
Customer means any individual, business or government entity to which the Purchaser has contractual obligations for the supply of goods or any related services, systems, or supplies.
Defects means any defects, deficiencies, errors or omissions in the Deliverables or any non-conformance in the Deliverables with the Order.
Deliverables means all goods, supplies or services to be provided under this Order, including Documents and Intellectual Property.|
Documents include: (a). any paper or other materials on which there are writing, marks, figures, symbols or perforations having meaning for persons qualified to interpret them; (b). any digitally created or stored file in a mutually agreed format able to record and display writing, marks, figures, symbols, or perforations having meaning for persons qualified to interpret them; and (c). any article or material from which sound, images or writings are capable of being reproduced with or without the aid of any other article or device.
DSPF means Defence Security Principles Framework as issued by (and as amended time to time) by the Department of Defence (DoD) representing the Commonwealth of Australia (ABN 68 706 814 312) or the equivalent entity.
Effective Date (ED) means the date of the Order.
Export Control Laws and Regulations means any governmental licence, authorisation, exemption or any other related transfer control to which the Deliverables are subject that imposes or will impose end use, end user, re-export or re-transfer restrictions, or restrictions on disclosure to individuals based upon nationality, affecting the Customer, PMB Defence or both.
Force Majeure Event means any circumstances not within a Party’s reasonable control, including without limitation: (a). acts of God, drought, earthquake, bushfire or other natural disaster; (b). terrorist attack, civil war, civil commotion or riots, war; (c). nuclear, chemical or biological contamination; and (d). any labour or trade dispute, strikes, industrial action, lock-outs or other industrial disputes (but only where it involves the workforce of a third party and does not involve a Party or a Related Body Corporate or those of the Supplier’s sub-contractors).
Foreground IP means Intellectual Property (IP) which is created under or otherwise in connection with the Order, other than Third Party IP.
Intellectual Property (IP) means all copyright and all rights in relation to inventions (including patent rights), registered and unregistered trademarks (including service marks), registered and unregistered designs, circuit layouts and any other rights resulting from intellectual activity in the industrial, scientific, literary and artistic fields recognised in domestic law anywhere in the world.
Order means the Purchase Order, these Purchase Order Terms and Conditions and any document expressly incorporated as part of this Order.
Party means the Purchaser or the Supplier, collectively the Parties.
Proportionate Liability Acts means Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) – Part 3 (SA Act); or any other analogous legislation which applies to this Order.
Purchaser, Buyer or PMB means PMB Defence Pty Ltd (ABN 20 099 904 926) or its Related Body Corporate.
Purchase Order Terms and Conditions means the terms and conditions contained herein.
Personnel or Representatives means either party’s agents, employees, advisers, consultants, sub-contractors, suppliers and other contractors assisting the party in the performance of this Order.
Related Body Corporate has the same meaning as in the Corporations Act 2001 (Cth).
Supplier, Contractor or like term means the person, entity or company upon whom this Order is placed.
Third Party IP means Intellectual Property that is owned by a party other than the Purchaser or the Supplier and which is embodied in, attaches to or is otherwise necessarily related to the functioning or operation of the Deliverables.
3. Precedence of Documents
In the event of inconsistency between the provisions of this Order, a descending order of precedence, to the extent of the inconsistency, shall be accorded to:
(a) the Purchase Order;
(b) Purchase Order Terms and Conditions; and
(c) any document incorporated by express reference.
4. Scope of Delivery
The Supplier shall deliver the Deliverables to the delivery location specified in the Order by no later than the delivery date specified in the Order. The Deliverables shall be packaged to protect from damage in transit and delivered to the destination specified in the Order in accordance with DDP Incoterm 2020 unless otherwise stated.
The Deliverables shall include details of the Order, Part Number and other information corresponding to the Order, including but not limited to the relevant Safety Data Sheets for all hazardous chemicals, the certificates of conformance and/or manufacturer’s certificate of conformances.
Time shall be of the essence for the Order unless otherwise stated. In the event of any anticipated or actual delay, the Supplier shall immediately notify the Purchaser in writing of the reasons for the delay and the actions being taken to minimise the delay.
5. Variation
The Purchaser may by notice in writing request that the Supplier provide a quotation for a proposed variation to the Deliverables to be supplied by the Supplier pursuant to the Order. Within 5 Business Days or such longer period as agreed between the Parties in writing, the Supplier must provide a quotation to the Purchaser identifying any change in the price of the Order and impact on the ability of the Supplier to deliver the Deliverables by the delivery date specified in the Order, including the anticipated delivery date, as a consequence of the proposed variation.
Within 5 Business Days of receipt of the Supplier’s quotation provided pursuant to this clause, the Purchaser must either:
(a) direct the Supplier to perform the proposed variation, in which case, the price of the Order and delivery date will be adjusted in accordance with Supplier’s quotation; or
(b) direct the Supplier not to perform the variation.
The Supplier shall comply with a direction issued pursuant to this clause.
The Supplier is not entitled to payment for the preparation of a quotation pursuant to this clause.
6. Price, Payment and Taxation
Subject to clause 5, the price of the Order shall remain fixed and not be subject to adjustment for rise and fall in costs or other reason and shall exclude Goods and Services Tax (GST) (or the like applicable elsewhere in the world) but is inclusive of all other taxes, imposts and fees for the duration of the Order unless otherwise stated. The price shall include storage, packing, insurance, royalties and licence fees, delivery, installation and commissioning (as applicable).
Subject to the Deliverables being Accepted, the Purchaser shall pay the Supplier within thirty (30) days End of Month from the date of the Supplier invoice unless agreed otherwise and documented on this Purchase Order. A valid tax invoice must meet the requirements of the local taxation laws (Goods and Services Tax Act 1999 (Cth)) in Australia or its equivalent in domestic law elsewhere in the world).
7. Supplier’s General Responsibilities
The Supplier shall ensure that the Deliverables:
(a) are fit for the purpose;
(b) conform to the requirements of the Order and to all generally recognised commercial practices and standards of the industry;
(c) are free from any Defects;
(d) are comprised of new and appropriate materials of high quality;
(e) are free from any liens or encumbrances; and
(f) are free of any Counterfeit Goods.
The Supplier must provide the Deliverables in accordance with a quality system that meets with the requirements of AS/NZS ISO 9001:2015 or such other quality control system acceptable to the Purchaser.
The Supplier shall allow the Purchaser or a third party nominated by the Purchaser to access the Supplier’s premises, books, records and other documents (excluding price-build up and costing information) to assess the Supplier’s compliance with the quality system and its obligations pursuant to the Order.
8. Acceptance
The Purchaser will not be deemed to have Accepted the Deliverables other than as provided for in this clause.
The Purchaser may inspect and test the Deliverables prior to Acceptance to the extent necessary to confirm the Deliverables conform to the Order.
The Purchaser shall inspect the Deliverables to determine whether or not they meet the requirements of the Order so as to constitute Acceptance, within 10 Business Days of delivery. The Purchaser shall be deemed to have Accepted the Deliverables following the expiry of 10 Business Days of delivery, unless it has provided notice in writing to the Supplier of its rejection of the Deliverables in accordance with this clause.
Without limiting the Purchaser’s other rights, power or remedies, if on inspection the Purchaser finds that any Deliverables are Defective, the Purchaser may reject those goods and/or services, and
(a) in the case of goods, may return the Defective goods to the Supplier, at the Supplier’s cost, and at the Purchaser’s option and request, acting reasonably, the Supplier must, in a timely manner:
a. refund to the Purchaser any payment made by the Purchaser in respect of the Defective goods that the Purchaser rejects; or
b. replace, or rectify, free of charge, any Defective goods that the Purchaser rejects;
(b) in the case of services, at the Purchaser’s option and request, acting reasonably, the Supplier must in a timely manner:
a. refund to the Purchaser any payments made by the Purchaser in respect of any Defective services that the Purchaser rejects; or
b. re-supply or re-perform any part of the services that are Defective to satisfaction of the Purchaser, acting reasonably.
9. Warranty Period & Defect Remedy
The warranty period shall be a period of twelve (12) months commencing from Acceptance unless otherwise stated in the Order. If during the warranty period, the Deliverables exhibit any Defect, the Purchaser may:
(a) reject and return the Deliverables at the Supplier’s expense;
(b) require the Supplier to promptly replace or repair the Deliverables at the Supplier’s costs and risk at the location nominated by the Purchaser; or
(c) require the Supplier to pay the Purchaser for all reasonable expenses, including remedial costs, associated with such Defects.
The Purchaser shall have the right to conduct further inspections and tests on the Deliverables after the Supplier has carried out its remedial actions pursuant to this clause, prior to Acceptance.
The Warranty Period for the remedied Deliverables shall be the remainder of the original Warranty Period or six (6) months, whichever is greater. The Supplier agrees that all Warranties attaching to the Deliverables shall be capable of being assigned to the Purchaser’s Customer or other user by the Purchaser without prior written notice to the Supplier.
10. Risk, Title and Record Keeping
Risk in the Deliverables passes from the Supplier to the Purchaser upon Acceptance of the Deliverables.
The ownership and unencumbered title to the Deliverables or any part of the Deliverables passes to the Purchaser upon payment. For a period of minimum six (6) years from the Acceptance, the Supplier shall maintain records associated with the Deliverables including all inspections and test certificates, route cards, or batch records for traceability purposes. Upon request by the Purchaser, the Supplier shall provide these records without any delay.
11. Intellectual Property
The Supplier:
(a) assigns to the Purchaser immediately upon its creation, the rights in and ownership of all Foreground IP;
(b) grants to the Purchaser a fully paid up, perpetual, royalty free, irrevocable, world-wide, transferrable, non-exclusive licence in respect of all Background IP, including the right to sub-licence, to exploit, use, maintain, modify, develop, support, adapt and dispose of the Deliverables for any reasonable purposes of the Purchaser or its Customers;
(c) must use best endeavours to ensure that the Purchaser is granted a licence to exercise all Third Party IP on the best available commercial terms; and
(d) undertakes to the Purchaser that it has sufficient right, title and interest in all Foreground IP and Background IP for the Purchaser to obtain and exercise all of the right, title and interest given to the Purchaser under this clause.
Nothing in this clause affects the ownership of Background IP or Third Party IP.
12. Confidentiality
The Receiving Party:
(a) shall ensure that any Confidential Information is kept confidential and secure from disclosure;
(b) shall not directly or indirectly analyse or reverse engineer any tangible samples or materials comprising Confidential Information without the express written consent of the Disclosing Party;
(c) shall only use Confidential Information for the purposes of the Order;
(d) shall not, without the prior written consent of the Disclosing Party, disclose or permit any person, including the Receiving Parties’ Personnel or Representatives, to disclose any Confidential Information to any person, other than for the performance of a Receiving Party’s obligations pursuant to the Order, as required under law or to conduct any legal proceedings;
(e) shall promptly notify the Disclosing Party of any unauthorised possession, disclosure, or use, whether actual or threatened, of Confidential Information contrary to this Order and take all steps necessary to prevent the recurrence of such unauthorised possession, (a) disclosure, or use; and
(f) shall provide the Disclosing Party all assistance it reasonably requires to commence or pursue legal proceedings in connection with any of the matters referred to in sub-clause (e).
13. Exclusion of Consequential Loss
Notwithstanding any other provisions of this Order, a Party shall not be liable to the other Party for any claim, demand, remedy, injury, damage, cost, loss, expense, liability, suit, action, proceeding, verdict, judgement, right of action or debt whether arising at law, in equity, under statute or otherwise for or with respect to Consequential Loss, other than:
(a) to the extent that the liability cannot be limited at law;
(b) for loss that is, or should be covered by insurance to be obtained pursuant to this Order, or which would have been obtained but for an act or omission of the Party responsible for obtaining the insurance;
(c) in respect of death or personal injury or illness, including psychological injury or illness, of any person;
(d) in respect of loss, theft or destruction of any real or personal property; and
(e) in connection with any liability the Parties have parties have pursuant to clause 11 (Intellectual Property) or 12 (Confidentiality).
14. Indemnity
The Supplier indemnifies the Purchaser and any of the Purchaser’s Personnel, Representatives or Customers from and against all claims, proceedings and demands and all liabilities, costs, expenses, losses and damages (including legal costs and expenses on a solicitor/own client basis) (Claims) incurred or suffered by any person arising out of or in connection with any:
(a) loss of, or damage to, property of the Purchaser;
(b) claims by any person in respect of personal injury or illness, including psychological injury or illness, or death;
(c) claims by any person in respect of loss of, or damage to property;
(d) claims by any third party, including in respect of Intellectual Property, privacy, export violations and Confidential Information;
(e) defence or settling of any claims, proceedings and demands;
(f) breach of, or failure to fulfil those obligations described under clause 21 or like obligations applicable in domestic law elsewhere in the world;
(g) Defects in the Deliverables;
(h) breach of any warranty or representation given by the Supplier in relation to the Deliverables; and
(i) breach of any term of this Order;
arising out of, or, as a consequence of, the performance or non-performance of this Order by the Supplier, or the Supplier’s Personnel or Representatives.
The Supplier’s obligation to indemnify the Purchaser and any of the Purchaser’s Personnel, Representatives or Customers pursuant to this clause will be reduced to the extent that such Claims are caused or contributed by the Purchaser or the Purchaser’s Personnel or Representatives.
The Purchaser holds the benefit of this clause on trust for the Purchaser’s Personnel, Representatives and Customers.
15. Insurance
The Supplier must procure and maintain at its own expense, with a reputable insurance company, at least the legally required minimum insurances as well as the following policies of insurance: (a). workers compensation as required by law; and (b). public and product liability for an amount of not less than AUD$20,000,000 (or its equivalent in other currencies) for any single occurrence.
On written request by the Purchaser, the Supplier must provide certificates of currency for insurance retained in accordance with this Order. If certificates of currency are not produced within seven (7) days of receipt of the Purchaser’s written request, the Purchaser may withhold payment to the Supplier or procure the appropriate insurance policies on behalf of the Supplier (the cost of any such insurance will be a debt due from the Supplier to the Purchaser and may be offset against any monies owing by the Purchaser to the Supplier).
16. Subcontracting, Assignment & Novation
The Supplier must not sub-contract, assign or novate this Order to any other party without the Purchaser’s prior written consent. The liability for any acts, defaults or omissions of any of the Supplier’s Personnel or Representatives in the performance of this Order will be borne by the Supplier.
17. Termination for Default
If the Supplier:
(a) becomes bankrupt or insolvent, or being a company, goes into liquidation or administration or has a receiver or manager appointed on behalf of its debenture holders, creditors or their assigns; or
(b) is subject to a petition presented or proceedings taken or instituted in any court for the compulsory winding up of the Supplier and not having the petition or proceedings removed within one month of service; or
(c) breaches any of the obligations specified in clause 11(Intellectual Property), clause 12 (Confidentiality), clause 20 (Authorisations (Export, Import & other permits)), clause 21 (Compliance with Law), clause 29 (Defence Security) or clause 31 (Russian and Belarusian Sanctions); or
(d) commits any breach of the terms of this Order and fails to remedy such default within seven (7) days of delivery of a notice from the Purchaser requiring the Supplier to remedy such breach,
the Purchaser may (without prejudice to any other right or remedies which the Purchaser may be entitled to, whether under this Order, at law in equity or otherwise) terminate this Order immediately by serving written notice on the Supplier.
If the Purchaser:
(a) fails to make payment of the price in accordance with clause 6 within 10 Business Days of the due date for payment of the price pursuant to a Supplier’s invoice, which is not the subject of a Dispute in accordance with clause 30, the Supplier may suspend the performance of the Order upon the provision of written notice to the Purchaser;
(b) if the Purchaser’s default in making payment is unremedied for a further 15 Business Days following the provision of the notice of suspension by the Supplier to the Purchaser, the Supplier may terminate this Order by serving written notice on the Purchaser.
18. Termination for Convenience
The Purchaser, in addition to any other rights it has under this Order, may at any time and for any reason terminate this Order, by notifying the Supplier in writing that this Order, terminated from the date specified in such notice.
Upon receipt of such a notice of termination (as applicable), the Supplier must:
(a) immediately cease work on all Deliverables specified in the notice;
(b) comply with any direction that the Purchaser may give to the Supplier in relation to the termination of this Order;
(c) do everything possible to mitigate all loss, cost (including the cost of compliance with any such direction) and expense arising from the termination of this Order; and
(d) terminate all affected subcontracts or supply agreements.
The Supplier may submit a written request to the Purchaser within thirty (30) days of receipt of any notice given pursuant to this clause for all moneys due and not previously paid to the Supplier for any Deliverables completed in accordance with this Order and for work thereafter completed up to the effective date of termination as specified in the notice, including for materials reasonably ordered by the Supplier for the performance of this Order that are unable to be cancelled. The Purchaser will only provide payment for work forming part of the reduced or terminated Order that the Supplier has reasonably demonstrated by the provision of any relevant documentation. The amount to be paid to the Supplier pursuant to the operation of this clause shall in no event exceed the total price of this Order and will not include any consideration for loss of anticipated profits for Deliverables that are not required to be supplied pursuant to the operation of this clause. The Supplier acknowledges that it shall have no claim in relation to such consideration.
19. Force Majeure Event
Neither Party shall be in breach of this Order or liable to the other for delay or failure to perform its obligations under this Order if the delay or failure results from a Force Majeure Event provided that the affected party:
(a) promptly notifies the other party in writing, providing reasonable evidence of the occurrence of the Force Majeure Event, the expected duration thereof, and the effect of the Force Majeure Event on the party’s ability to perform its obligations under this Order;
(b) takes all reasonable steps to eliminate or minimise the delay or failure to perform its obligations under this Order;
(c) continues to fulfil its obligations under this Order to the extent they are not affected by the Force Majeure Event; and
(d) provides prompt notice of the cessation of the Force Majeure Event and recommences its full performance of its obligations under this Order as soon as reasonably possible.
A Party cannot claim relief under this clause if the Force Majeure Event could have been reasonably foreseen by the Party whose performance under the Order has been affected or if the failure or delay of the Party in the performance of its obligations is attributable to the affected Parties’ negligence or default.
In the event that a Force Majeure Event has the effect of preventing or delaying the performance of the Supplier’s obligations for a continuous period of thirty (30) days or more then the Purchaser shall have the right to terminate the Order by immediate written notice, with no liability to the Supplier except in relation to those Deliverables already Accepted by the Purchaser.
20. Authorisations (Export, Import & other permits)
The Supplier shall, at its own expense, obtain, maintain and observe the requirements imposed by all applicable governmental and regulatory approvals, including without limitation; Government Security Classification(s) and Export Control Laws and Regulations, to the extent required to perform its obligations under this Order.
The Supplier shall provide any information relating to the Order or the Deliverables that may be necessary to enable the Purchaser to comply with all applicable Export Control Laws and Regulations.
21. Compliance with Law
The Supplier shall comply with all legislation, standards and regulations, including without limitation those relating to Defence Security, the Privacy Act (Cth), the Work Health and Safety Act 2011 (Cth), Money Laundering Regulations (MLR)(UK), the General Data Protection Regulation (GDPR)(EU), the Foreign Corrupt Practices Act (FCPA)(USA), Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH)(EU), Restriction on Hazardous Substances (ROHS)(EU), Modern Slavery Act (UK), responsible trading practices associated with conflict minerals (UK), OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas, Bribery Act 2010 (UK) and any equivalents in effect worldwide which apply to the Deliverables under this Order.
22. Governing Law
This Order is governed by and is construed in accordance with the laws of the State of South Australia, Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of South Australia and courts entitled to hear appeals from these courts.
The United Nations Convention on Contracts for the International Sale of Goods (or its successor) does not apply to this Order.
23. Public Announcement
The Supplier must not by any means, make any public comment or release any publicity, advertisement or media release regarding this Order, these Terms, the Purchaser, the Purchaser’s Customers or the Deliverables without prior written approval from the Purchaser.
24. Survivorship
Any provision of this Order which is expressly or impliedly intended to survive the termination or expiration of this Order and any rights or obligations arising on such termination or expiration are deemed to survive, including provisions relating to Confidential Information, Intellectual Property and any Warranties, licences, indemnities and insurance given under this Order.
25. Notices:
A notice (and other documents) will be deemed to have been given if addressed or delivered by hand, mail, or email to the relevant address in the Order or last communicated in writing to the person giving the notice. A notice (and other documents) will be deemed to have been received:
(a) in the case of hand delivery, upon written acknowledgment of receipt by an officer or the receiving Party’s other duly authorised Personnel or Representative;
(b) in the case of posting, five (5) days after dispatch; or
(c) in the case of email, on the day shown on the recipient’s email indicating the time of delivery to the recipient’s inbox, or if that day is not a Business Day, the next Business Day.
26. Exclusion of Proportionate Liability Regime
To the maximum extent permitted by law:
(a) the parties agree that the Proportionate Liability Acts will not have any application to this Order, or any of the obligations of the Supplier under this Order or at law;
(b) the Supplier’s sole responsibility and the indemnities contained in this Order will apply despite the provisions of the Proportionate Liability Acts; and
(c) the parties agree that their rights, obligations and liabilities will be those which would exist if the Proportionate Liability Acts did not apply. If, despite the foregoing clause, the Proportionate Liability Acts do apply,
then:
(d) the Supplier acknowledges and agrees that, for the purposes of the Proportionate Liability Acts, the Supplier is entirely and solely responsible for any failure to take reasonable care on the part of any of its Personnel or Representatives; and
(e) the Supplier undertakes to the Purchaser, as a separate and independent absolute obligation, not subject to any duty to take reasonable skill and care, in respect of any Deliverables delivered:
i) which is Defective; and
ii) which would otherwise be a breach of the Supplier’s obligations under this Order;
to compensate the Purchaser for any cost, loss or expense incurred by the Purchaser as a result of having such Deliverables rectified, replaced or completed.
27. Entire Agreement
This Order constitutes the entire agreement between the Parties and supersedes all communications, negotiations, arrangements, agreements and undertakings, whether oral or in writing, between the Parties with respect to the subject matter of this Order. No amendment or modification of this Order binds either Party unless it is in writing and signed by both Parties.
28. General
Failure by the Parties to enforce a provision of this Order shall not be construed as in any way affecting the enforceability of that provision or this Order as a whole.
Subject to the other covenants of this Order, the rights and obligations of the Parties pursuant to this Order are in addition to and not in derogation of any other right or obligation between the Parties under any other order, deed, agreement to which they are bound, or any rights or remedies provided by law, in equity or any other such right or remedy.
29. Defence Security:
(a) If the Supplier or the Supplier’s personnel require access to any Purchaser’s premises, the Supplier will:
(i) comply with any security requirements (including those contained in the Defence Security Principles Framework (DSPF)) notified to the Supplier by the Purchaser from time to time; and
(ii) ensure that Supplier Personnel are aware of and comply with security requirements notified by the Purchaser.
(b) The Supplier will:
(i) ensure that Supplier personnel undertake any security checks, clearances or accreditations as required by the Commonwealth of Australia represented by the Department of Defence (DoD), which will be notified by the Purchaser;
(ii) promptly notify the Purchaser, who may inform the DoD, of any changes to circumstances which may affect the Supplier’s capacity to provide the Supplies in accordance with DoD’s security requirements.
(c) The Supplier shall ensure that the Supplier and the Supplier Personnel comply with any cyber security requirements notified by the Purchaser.
(d) The security classification of the Supplies will be up to and including the level specified by the Purchaser in the Order. The Supplier will:
(i) if required in the Order, obtain and maintain membership of DISP in accordance with Principle 16 of the DSPF;
(ii) if not required to be a member of the DISP, comply with the classification and protection of official information requirements of Principle 10 of the DSPF;
(iii) ensure that all required personnel (if any) possess a personnel security clearance specified in the Order, and comply with the requirements and procedures of Principle 40 of the DSPF; and
(iv) possess the facility accreditation (if any) and ICT system accreditation (if any) specified in the Order and comply with the requirements and procedures of Principle 73 of the DSPF.
(e) Where work under the Order is performed overseas, the Supplier shall comply with:
(i) the requirements of clauses 29(d)(iii) and 29(d)(iv) for the classification level (if any) specified in the Order or equivalent classification; and
(ii) comply with the relevant overseas government industry security policy.
(f) For the purposes of clause 29(e), accreditations shall be issued by the relevant overseas government security authority and shall be verified by the DSVS (through a bilateral security instrument or otherwise).
(g) The Supplier shall classify all information in its possession relating to the performance of the Order according to the Security Classification and Categorisation Guide to be provided by the Purchaser and shall ensure that such information is safeguarded and protected according to its level of security classification.
(h) With respect to security classified information, the Supplier shall:
(i) ensure that no security classified information furnished or generated under the Order shall be released to a third party, including a representative of another country, without prior written approval of the originator through the DoD Representative;
(ii) promptly report to the Purchaser, which the Purchaser may report to the DoD, any security incident, as defined by the DSPF, including instances in which it is known or suspected that security classified information furnished or generated under the Order has been lost or disclosed to unauthorised parties, including a representative of another country; and
(iii) ensure that all security classified information transmitted between the parties or a party and a subcontractor, in Australia, whether generated in Australia or overseas, shall be subject to the terms of Principle 73 of the DSPF.
(i) Where COMSEC (Communications Security) material is transmitted in Australia, the Supplier shall ensure that:
(i) without limiting clause 29(h)(3), all COMSEC material transmitted between the parties or a party and a subcontractor in Australia shall be subject to the special security provisions of Principle 13 of the DSPF; and
(ii) all security classified information transmitted between the parties, or a party and a subcontractor located overseas whether generated in Australia or by another country shall be subject to the laws of the overseas country regarding the custody and protection of security classified information and to any bilateral security instrument between Australia and the overseas country.
(j) Where COMSEC material is transmitted overseas, the Supplier shall ensure that:
(i) all COMSEC material transmitted between the parties, or a party and subcontractor located overseas shall be subject to approval in the first instance by the Director ASD, in respect of Australian COMSEC material, and by the respective COMSEC authorities in other countries in respect of COMSEC material originating from those countries;
(ii) once approved for release, the material shall be subject to the laws of the overseas country regarding the custody and protection of COMSEC; and
(iii) material as determined by the Director ASD and to any bilateral security instrument between Australia and the overseas country.
30. Disputes
(a) If a dispute arises between the Parties with respect to this Order, or the performance of the Parties’ obligations pursuant to this Order (Dispute), either Party may issue to the other Party, a notice providing sufficient particulars of the Dispute and the outcome sought by the Party issuing the notice (Notice of Dispute).
(b) Within 5 Business Days of the service of the Notice of Dispute, authorised representatives of the Parties must meet and seek to resolve the Dispute, acting in good faith.
(c) In the event that the Dispute is not resolved within 15 Business Days of the service of the Notice of Dispute, nominated executives of the Parties must meet and seek to seek to resolve the Dispute, acting in good faith.
(d) In the event that the Dispute is not resolved within 30 Business Days of the service of the Notice of Dispute, the Dispute shall be referred to mediation and the Parties shall within 5 Business Days of its referral, agree on the appointment of a mediator, failing which
the President of the Resolution Institute (South Australia) shall appoint a mediator. The mediation shall be conducted in accordance with the directions of the mediator.
(e) Should the Dispute not be resolved at mediation, either Party may commence legal proceedings with respect to the subject matter of the Dispute.
(f) The Parties shall not commence legal proceedings with respect to a Dispute prior to complying with the requirements of this clause, save in the event that urgent or injunctive relief is sought with respect to the subject matter of the Dispute.
31. Russian and Belarusian Sanctions
(a) The Supplier shall not sell, transfer, export or re-export, directly or indirectly, to Russia or Belarus, or for use in Russia or Belarus, any products or Intellectual Property provided by the Purchaser that fall under the scope of Article 12ga of EU Regulation 833/2014 (as amended), or Article 8g of EU Regulation 765/2006 (as amended), including any additional products or items that may be added to the Deliverables.
(b) The Supplier notify the Purchaser in writing as soon as they become aware:
(i) that the Deliverables contain any Russian/Belarussian products and/or services; or
(ii) that the Supplier or any part of the Supplier’s supply chain is linked to entities who are constituted or organised under the law of Russia or Belarus, or under the control (full or partial) of a Russian/Belarusian person or entity. Please note that this does not include companies:
(a) registered in the United Kingdom or in a country with which the United Kingdom has a relevant international agreement providing reciprocal rights of access in the relevant field of public procurement; and/or
(b) which have significant business operations in the UK or in a country with which the UK has a relevant international agreement providing reciprocal rights of access in the relevant field of public procurement.
(c) The Supplier shall, and shall procure that their sub-contractors shall, include in such notification (or as soon as reasonably practicable following the notification) full details of the Russian or Belarusian products, services and/or entities and shall provide all reasonable assistance to the Purchaser and its Customers to understand the nature, scope and impact of any such products, services and/or entities on the provision of the Deliverables due under this Order.
(d) The Purchase shall provide its Customer with this notification and information provided by the Supplier and shall provide the Supplier with the Customer’s written concerns and any action that the Customer requires the Purchaser and the Supplier to take. The Supplier shall be required to submit a response to the concerns raised by the Customer, including any plans to mitigate those concerns, within 10 Business Days of receipt of the Customer’s written concerns, for the Customer’s consideration.