PURCHASE ORDER TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS
These Terms and Conditions of Supply (Terms) apply to the sale and supply of all goods (Goods) by you (the Supplier) to Greenstorm Foods Pty Ltd, trading as "Austral Herbs" (ABN 90 655 386 646) (Austral Herbs, we, us). The Supplier agrees to supply the Goods in accordance with the Purchase Order and these Terms.
1) Supply of Goods
(a) The Supplier must supply the Goods to Austral Herbs in accordance with the Purchase Order and otherwise in accordance with these Terms.
(b) The Supplier must deliver the Goods at the time, place, and in the manner stated in these Terms and the Purchase Order.
(c) Delivery will not be taken to have occurred until delivery is acknowledged in writing by Austral Herbs.
(d) The Supplier must pack, mark and label the Goods to ensure safe delivery and handling by Austral Herbs after delivery.
(e) The Supplier must comply with any specifications relating to the Goods as stated in the Purchase Order or (if the Purchase Order is silent) as stated in any quotation provided by the Supplier to Austral Herbs in connection with the supply of the Goods.
(f) The Goods must be new, unused and free from defects in materials and workmanship, be of merchantable quality and be fit for their purpose.
(g) The Supplier in supplying the Goods must:
(i) keep Austral Herbs fully and regularly informed as to all matters affecting or relating to the Goods;
(ii) comply with all materially relevant laws;
(iii) ensure that all information provided to Austral Herbs, including in reports and documents provided to Austral Herbs, is correct, complete, and not misleading.
(h) The Supplier must not sub-contract the supply of the Goods without the consent of Austral Herbs (acting reasonably) which may be withheld or may be subject to conditions. It will be a condition of Austral Herbs’ consent that the subcontractor must comply with these Terms and that the Supplier supply to Austral Herbs’ such details of the subcontractor as Austral Herbs’ requires.
(i) The Supplier will not, as a result of any sub-contracting arrangement, be relieved from the performance of any obligation
under the Agreement and will be liable for all acts and omissions of a sub-contractor as though they were the actions of the Supplier itself.
(j) If delivery of the Goods (or any part thereof) is likely to be delayed, the Supplier shall immediately give written notice to Austral Herbs specifying all causes of such delay and a probable date for delivery. If Austral Herbs is of the opinion that the delay is likely to substantially affect any obligations of Austral Herbs to any third party, Austral Herbs may, in its absolute discretion, cancel any part of any Purchase Order, without liability and without prejudice to any rights it has against the Supplier.
2) Acceptance or rejection of Goods
(a) If the Goods conform with the Purchase Order, Austral Herbs will promptly accept the Goods in writing. If the Goods do not conform, Austral Herbs may reject the Goods within 10 business days of delivery by written notice giving reasons. If Austral Herbs does not accept or reject the Goods within 10 business days of delivery, delivery will be deemed to have then occurred.
(b) The Supplier must at its own cost collect and remove any Goods that have been rejected as soon as practicable or Austral Herbs may return the Goods to the Supplier at the Supplier’s expense.
3) Cancellation
(a) Austral Herbs may cancel the Purchase Order at any time by giving written notice to the Supplier who must, on receipt, immediately cease supplying the Goods and take appropriate action to mitigate any loss or prevent further costs being incurred with respect to the supply of Goods.
(b) Austral Herbs will pay all reasonable amounts due in accordance with clause 4 for Goods supplied up until the date of cancellation (but not any loss of prospective profits).
4) Price
The Price is fixed and includes all packaging, transport, insurance, loading, unloading, storage and any other costs incurred by the Supplier.
5) Invoicing and payment
(a) The Supplier must submit to Austral Herbs a tax invoice in respect of the Goods once they are delivered (or at any time agreed in the Purchase Order). A tax invoice submitted for payment must contain the information necessary to be a tax invoice for the purposes of the GST Act, together with such other information as Austral Herbs may reasonably require. Invoices must be sent to the address specified in the Purchase Order.
(b) Austral Herbs will pay the invoiced amount within 30 days of receipt of a compliant invoice. If Austral Herbs disputes the invoiced amount, it will pay the undisputed amount (if any) and notify the Supplier of the dispute. The parties will endeavour to resolve any such dispute as expediently as possible.
(c) No interest will be payable by Austral Herbs in respect of any invoice rendered which remains due and unpaid.
(d) Payment of an invoice does not, in itself, constitute acceptance of the Goods in accordance with the Agreement.
6) GST
Unless otherwise expressly stated, the Price and any other sums payable or consideration to be provided under or in accordance with the Purchase Order or these Terms are exclusive of GST (as defined under the GST Act).
7) Insurance
The Supplier shall at all relevant times maintain the insurances specified in the Purchase Order. The Supplier shall provide certificates of currency of such insurances upon Austral Herbs request which will not be more often that once every 12 months.
8) Title and risk
Title in the Goods will pass to Austral Herbs upon payment for the Goods. Risk in the Goods will pass to Austral Herbs when the Goods are delivered to the Delivery Address.
9) Intellectual Property
Rights
The Supplier grants to Austral Herbs a non-exclusive, perpetual, royalty-free licence to use any Intellectual Property Rights in relation to any Goods supplied to the extent necessary to allow Austral Herbs the full use and enjoyment of those Goods and the Supplier must, upon request by Austral Herbs, do all things as may be necessary (including executing any documents) to give full effect to such rights.
10) Warranties
The Supplier warrants to Austral Herbs that:
(a) it has complete ownership of the Goods free of any liens, charges and encumbrances and will provide the Goods on that basis. Accordingly, Austral Herbs is entitled to clear, complete and quiet possession of the Goods;
(b) it is entitled to use and deal with any Intellectual Property Rights which may be used by it in connection with the Goods; and
(c) the Goods:
(i) are new and fit for the purpose stated in the Purchase Order (or, if no purpose is stated, the purpose for which the Goods would ordinarily be used);
(ii) are free from defects (including defects in installation);
(iii) are of merchantable quality and comply with all Laws;
(iv) comply with all applicable Australian standards; and
(v) conform in all respects with the Purchase Order and will continue to comply with the Purchase Order for 24 months from the date of delivery (Warranty Period). If, during the Warranty Period, Austral Herbs finds any of the Goods to be defective, it will, at its option:
(A) return the defective Goods to the Supplier;
(B) make good any defective Goods and the Supplier agrees to reimburse Austral Herbs for any expenses; or
(C) require the Supplier to repair or replace the defective Goods returned, free of charge (and the Warranty Period will be renewed accordingly).
11) Liability
The Supplier indemnifies Austral Herbs and each of its employees and agents against any loss, damage, claim, action or expense (including legal expense) which any of them suffers as a direct result of any failure by the Supplier to supply the Goods in accordance with these Terms.
12) Confidentiality and privacy
The Supplier and its employees, agents, directors, partners, shareholders and consultants must not disclose or otherwise make available any Confidential Information to any other person.
13) Dispute Resolution
(a) Any dispute, controversy or claim arising out of or in connection with the Purchase Order or these Terms, including its existence, breach, validity or termination (Dispute) must be dealt with in accordance with this clause. This clause does not prevent either party from seeking urgent injunctive or similar interim relief.
(b) Either party claiming that there is a Dispute must notify each other party in writing and give details of that Dispute in accordance with these Terms. Following the giving of a dispute notice, the representative of the Supplier and of Austral Herbs will meet and use reasonable efforts to resolve the dispute within 14 days of the giving of the dispute notice.
(c) If the Dispute is not resolved within 30 days from the date that the written notice of the Dispute is received, then either party may submit the Dispute to mediation in accordance with, and subject to, the Resolution Institute Rules. The mediation must take place in Sydney, Australia and be administered by the Resolution Institute.
(d) If the Dispute cannot be resolved within 90 days (unless this period is extended by mutual agreement in writing) from the date it is submitted for mediation, then the Dispute must be resolved by arbitration in accordance with the Resolution Institute Arbitration Rules 2016.
(e) Where the Supplier is resident outside of Australia, the Dispute may be submitted to mediation in accordance with, and subject to, the Australian Centre for International Commercial Arbitration (ACICA) Mediation Rules. The mediation must take place in Sydney, Australia and be administered by ACICA.
(f) Any arbitration is governed by, and all Disputes must be resolved according to, the laws of New South Wales. There is to be one arbitrator. Unless the parties agree upon one arbitrator, either party may request a nomination from the Chair of the Resolution Institute. The place of arbitration is Sydney, New South Wales, Australia. The language of the arbitration must be English. The decision of the arbitrator (including any award as to costs) will be final and binding.
(g) The parties must continue to comply with the Purchase Order and these Terms but no party need pay any monies in relation to the matter under dispute until it is resolved.
14) Variation
The nature of the Goods, any dates for delivery, the Price or any other detail of the Purchase Order may only be varied in writing signed by the Supplier and Austral Herbs.
15) General
(a) The Supplier must, in supplying the Goods, comply with all Laws.
(b) The Agreement is governed by and is to be construed in accordance with the laws applicable in New South Wales. Each party irrevocably and unconditionally submits to the jurisdiction of the courts of New South Wales.
(c) Time is of the essence in relation to the supply of the Goods
16) Interpretation
In these Terms, unless the context otherwise requires:
Agreement means the agreement for the supply of the Goods of which these Terms and the Purchase Order form part.
Confidential Information means any technical, scientific, commercial, financial or other information of, about or in any way related to, Austral Herbs, including any information designated by Austral Herbs as confidential, which is disclosed, made available, communicated or delivered to the Supplier, but excludes information:
(a) which is in or which subsequently enters the public domain other than as a result of a breach of these Terms; or
(b) which the Supplier can demonstrate was:
(i) in its possession prior to the date of the Agreement; or
(ii) independently developed by the Supplier; or
(iii) lawfully obtained by the Supplier from another person entitled to disclose such information.
Delivery Address means the location or address to which the Goods are to be delivered, as specified in the Purchase Order.
Goods means the items to be supplied to Austral Herbs, as specified in the Purchase Order.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property Rights includes all present and future copyright and neighbouring rights, all proprietary rights in relation to inventions (including patents), registered and unregistered trademarks, confidential information (including trade secrets and know how), registered designs, circuit layouts, and all other proprietary rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
Laws means the law in
force in the State and the Commonwealth of Australia, including common law and legislation.
Purchase Order means any form of order or acknowledgment from Austral Herbs for the supply of the Goods which incorporates these Terms.
Supplier means the person supplying the Goods under these Terms.
Price means the cost the Goods, as specified in the Purchase