1. Acceptance of Order & Formation of Contract
This Order constitutes the entirety of the Purchaser’s offer to the Supplier and is strictly limited to the Terms and Conditions included in this Order. 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. Unless expressly accepted in writing by the Purchaser, any additional or differing terms and conditions proposed by the Supplier or included in the Supplier’s Order acknowledgement shall be void and of no effect.
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; (c). the disclosure of which would cause unreasonable detriment to the Disclosing Party; and (d). that was provided with an express or implied understanding that it would remain confidential; but does not include information which: (e). is or becomes available to the public through no contractual breach or wrongful or negligent acts or omissions of the Receiving Party; (f). is independently developed by the Receiving Party as proven by its contemporaneous documentation; or (g). is disclosed to the Receiving Party by a third party who did not obtain the information from the Disclosing Party subject to any confidentiality restrictions.
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.
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.
Effective Date (ED) means the date of the Order.
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. Price, Payment and Taxation
The price of the Order shall remain firm (non-revisable) 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 (EOM) 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).
6. Supplier’s General Responsibilities
The Supplier shall ensure that the Deliverables shall be:
(a) 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) free from any defects (whether actual or latent) in design, material and workmanship;
(d) use new and appropriate materials of high quality to provide the Deliverables;
(e) free from any liens or encumbrances; and
(f) 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.
7. Warranty Period & Defect Remedy
Warranty Period shall be a period of twelve (12) months commencing from Acceptance unless otherwise stated. If during the Warranty Period, in the reasonable opinion of the Purchaser, the Deliverables exhibit any actual or latent defect, or otherwise do not comply with the requirements of this Order, 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 indemnify 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 after the Supplier has carried out its remedial actions 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 Goods shall be capable of being assigned to the Purchaser’s Customer or other user by the Purchaser without prior written notice to the Supplier.
8. Acceptance, Risk, Title and Record Keeping
The Purchaser may inspect and test the Deliverables prior to Acceptance to the extent necessary to confirm the Deliverables conform to the Order. If the Purchaser has not rejected the Deliverables within forty (40) Business Days of delivery of the Deliverables, then the Purchaser shall be deemed to have Accepted the Deliverables. 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. Where payment is made in instalments, ownership passes in proportion to the percentage paid. 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 delays.
9. Intellectual Property
(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 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.
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 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, disclosure, or use; and
(f) shall provide the Disclosing Party all assistance it reasonably requires commence any action or carry on proceedings for breach of this Order.
11. Limitation of Liability
Notwithstanding any other provisions of this Order, the Purchaser shall not be liable to the Supplier 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 loss of interest, earnings, profit or opportunity, or any special, indirect or consequential loss or damages.
The Supplier indemnifies the Purchaser and any of the Purchaser’s Personnel, Representatives or Customers from and against all claims, proceedings and demands and also all liabilities, costs, expenses, losses and damages (including legal costs and expenses on a solicitor/own client basis) 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 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 19 or like obligations applicable in domestic law elsewhere in the world;
(g) actual or latent defect or fault in the Deliverables, whether proven or alleged;
(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, any work undertaken pursuant to this Order by the Supplier, or the Supplier’s Personnel or Representatives.
The Supplier’s duty to indemnify the Purchaser will be reduced to the extent that such death, injury, property loss, property damage, legal claim, or breach of these terms results from any negligent act or omission on the part of the Purchaser.
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).
14. Subcontracting, Assignment & Novation
The Supplier must not sub-contract, assign or novate this Order to any other party without consent in writing from the Purchaser. 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.
15. Termination for Default
If the Supplier:
(a) becomes bankrupt or insolvent, or being a company, goes into liquidation 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 herein related to Intellectual Property, Confidentiality, Supplier’s General Responsibilities, Warranty Period & Defect Remedy, Authorisations (Export, Import & other permits), Compliance with Law; or
(d) commits any act or omission that breaches 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) reduce or terminate this Order immediately by serving written notice on the Supplier.
16. Termination and Reduction for Convenience
The Purchaser, in addition to any other rights it has under this Order, may at any time and for any reason reduce or terminate this Order, by notifying the Supplier in writing that this Order, or a specified part of this Order, is reduced or terminated from the date specified in such notice.
Upon receipt of such a notice of reduction or 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 subsequent performance 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 all or part 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. 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 and is subject to Acceptance criteria under clause 8. The total sum to be paid to the Supplier per the operation of this clause will not include any consideration for loss of anticipated profits for terminated Deliverables. The Supplier acknowledges that it shall have no claim in relation to such consideration.
17. Force Majeure Event
Neither Party shall be deemed to 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 fault.
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.
18. 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 successfully 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 import and export control laws and regulations.
19. 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), Bribery Act 2010 (UK) and any equivalents in effect worldwide which apply to the Deliverables under this Order.
20. 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.
21. 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.
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.
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.
24. 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,
(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 or incomplete or which is not in conformance with the requirements of this Order; 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.
25. 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.
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.
This Order may only be varied or waived if the parties agree to do so in writing.