Last updated: 29 July 2025
The following terms and conditions apply to all purchases of goods and services by ScaleFibre Australia Pty Ltd.
Please read these terms carefully. By accepting an order, you agree to be bound by these Terms and Conditions.
1. Definitions and Interpretation
Company means ScaleFibre Australia Pty Ltd (Australian Company Number 686 931 939), whose registered office is in Queensland, Australia (the “Buyer”).
Conditions means these Terms and Conditions of Purchase as set out in this document, including any special or additional terms and conditions expressly agreed in writing by the Company.
Confidential Information has the meaning given in Section 19.1.
Contract means the contract between the Company and the Supplier for the purchase of the Goods or Services, incorporating these Conditions and a Purchase Order issued by the Company and accepted by the Supplier in accordance with Section 2.
Data Protection Legislation has the meaning set out in Section 12.
Director means a member of the management board, a registered director of the Company, or any other person authorised to act on behalf of the Company (including by proxy).
Force Majeure Event has the meaning given in Section 17.
Goods means the articles which the Company agrees to buy from the Supplier and which are the subject of the Contract.
Intellectual Property Rights means all industrial and intellectual property rights (whether registered or unregistered) comprising or relating to: patents, trademarks, copyrights (including software), trade secrets, know-how, domain names, works of authorship, designs, models and inventions; together with all applications, registrations and rights related to the foregoing under the laws of any jurisdiction throughout the world.
Person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
Party means a party to the Contract (being either the Company or the Supplier), and Parties shall be construed accordingly.
Price means the price for the Goods or Services as stated in the Purchase Order, excluding GST, but inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the Goods and all duties, licenses, and levies other than GST.
Supplier means the person, firm or company who receives the Company’s Purchase Order for the supply of Goods or Services (subject to and governed by these Conditions).
Services has the meaning given in Section 8.11.
Trade Controls has the meaning given in Section 7.1.
Written or Writing (and any similar expression) includes facsimile transmissions and electronic mail.
2. Formation of Contract
2.1 These Conditions shall apply to all purchases of Goods and/or Services by the Company from the Supplier and shall govern the Contract to the exclusion of any other terms and conditions (including any terms or conditions which the Supplier purports to apply under any quotation, acknowledgement, invoice or other document).
2.2 The Company’s Purchase Order constitutes an offer by the Company to purchase the Goods and/or Services specified in it on these Conditions. The Purchase Order shall be deemed accepted (and a Contract formed on these Conditions) on the earlier of:
(a) the Supplier issuing written acceptance of the Purchase Order;
(b) the Supplier commencing performance of the Services or delivering any of the Goods; or
(c) the expiry of three (3) Business Days from the date of the Purchase Order without the Supplier having rejected it in writing.
2.3 For the avoidance of doubt:
(a) any automated acknowledgement of receipt (including by internet, email or other electronic means) shall not constitute acceptance; and
(b) any delivery note, invoice, order acknowledgement or other document issued by the Supplier containing or referring to the Supplier’s terms and conditions shall be of no effect and is hereby expressly rejected.
2.4 Any terms or conditions proposed by the Supplier (whether in a quotation, acknowledgement, invoice or otherwise) that are additional to, different from or inconsistent with these Conditions are hereby expressly rejected and shall not form part of the Contract unless expressly accepted in writing by a Director of the Company.
2.5 No variation to the Contract or these Conditions shall be binding unless agreed in writing and signed by a Director of the Company.
2.6 No employee, agent or representative of the Company (other than a Director) has authority to make any representation, warranty or statement or to vary these Conditions. The Supplier shall not be entitled to rely on any such representation, warranty or statement unless it is confirmed in writing by a Director of the Company. All descriptive matter, specifications, drawings, images, weights, dimensions and other information provided by the Company (whether in catalogues, websites, quotations or otherwise) are approximate only and shall not form part of the Contract unless expressly incorporated into the Purchase Order and accepted in writing by a Director of the Company.
2.7 Any typographical, clerical or other error or omission in any Purchase Order, quotation, price list, acceptance, invoice or other document issued by the Company may be corrected by the Company without any liability on its part.
2.8 The Company’s rights and remedies under these Conditions are cumulative and without prejudice to any other rights or remedies available to it at law. No waiver by the Company of any breach of the Contract by the Supplier shall be considered as a waiver of any subsequent breach of the same or any other provision. Any waiver by the Company must be in writing and signed by a Director.
2.9 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
3. Price, Quotations and Supplier Portal
3.1 The Price of the Goods or Services shall be as stated in the Company’s Purchase Order. Any quotation provided by the Supplier to the Company does not constitute an offer, and the Company’s Purchase Order is the only governing document. The Price shall be fixed for the duration of the Contract. The Supplier may not increase the price of the Goods to reflect any increase in the cost of labour, materials, foreign rate fluctuations, or other costs of manufacture without the express Written consent of a Director of the Company.
3.2 The Company reserves the right to update or amend its requirements at any time prior to the Supplier’s acceptance as set out in Section 2.2.
3.3 If the Supplier provides the Company with login and password details or Administrator rights to access a Supplier Online Portal, the Company is responsible for maintaining the confidentiality of its internal access. However, any terms and conditions or “click-wrap” agreements on the Supplier’s portal are expressly excluded from this Contract unless signed in Writing by a Director of the Company.
3.4 The Supplier must notify the Company of any data breach involving the Company’s account, information, or portal access within 24 hours of the breach taking place.
3.5 The Supplier will ensure all access rights are removed from any person provided with access to the Company’s data in the event of such person leaving the Supplier’s company.
3.6 The Company will from time to time review the usage of any Online Portal provided by the Supplier. Subject to any of the events listed in Section 3.4, the Company may terminate the Contract with immediate effect by giving Written notice to the Supplier and/or suspend any further performance under the Contract.
3.7 The Price shall be either inclusive or exclusive of GST (as indicated on the Purchase Order), but inclusive of all other charges including carriage, bespoke packaging, and any other taxes or duties. The Supplier must provide a valid Tax Invoice to the Company to enable the Company to claim input tax credits. The Company shall pay GST at the rate ruling on the date of the Supplier’s invoice.
3.8 Unless otherwise agreed in Writing, Prices are Delivered Duty Paid (DDP) (Incoterms 2020) to the location referred to in the Company’s Purchase Order. The Supplier shall be responsible for the costs of loading, carriage, insurance, and unloading.
3.9 The Company shall not be liable for any handling charges, minimum order values, or additional surcharges unless such charges were specifically agreed in Writing and included in the Purchase Order.
4. Payment
4.1 The Company does not pay in advance unless specifically agreed in Writing by a Director. Where the Company agrees to payment in advance, the Supplier shall invoice the Company, and such payment is held by the Supplier as a debt due to the Company until the Goods are delivered or Services performed.
4.2 The Supplier may at its sole discretion grant the Company a credit account. Any terms imposed by the Supplier regarding credit limits are subject to the Company’s overarching right to pay in accordance with Section 4.4.
4.3 The Company makes payment for Goods and Services by bank transfer, or as otherwise agreed in Writing.
4. Payment
4.4 The Company shall pay correctly rendered invoices in full and in cleared funds within 60 days of the end of the month in which the invoice is received (or, if later, within 60 days of the Company’s acceptance of the relevant Goods and/or Services).
The Company shall be entitled at any time and without notice to set off or deduct from any amount due to the Supplier any sums owed by the Supplier to the Company (or to any company within the Company’s group) under the Contract or any other contract or agreement, whether such sums are present or future, liquidated or unliquidated, and whether they arise by way of damages, counterclaim, debt or otherwise.
Time for payment shall not be of the essence of the Contract. The Company may withhold payment of any disputed amount (or any amount subject to a potential set-off or counterclaim) without penalty or interest until the dispute is resolved.
4.5 No interest shall accrue on overdue invoices unless ordered by a court in accordance with the Civil Proceedings Act 2011 (Qld) or equivalent legislation in the State of the Governing Law. For the avoidance of doubt, the Supplier shall not be entitled to charge or claim any penalty interest, late payment fees, or interest at a rate exceeding 8% per annum (or the rate awarded by the court, whichever is lower). Time for payment shall remain not of the essence.
4.6 If the Company fails to make any payment on the due date, then without prejudice to any of the Supplier’s other rights, the Supplier may issue a demand for payment. The Company is entitled to:
4.6.1 withhold payment of any disputed part of an invoice or any invoice where Goods have not been delivered in accordance with the Contract;
4.6.2 set off any liability of the Supplier to the Company (including any liquidated damages or costs of replacement goods) against any invoice; and/or
4.6.3 treat the Contract as terminated if the Supplier fails to deliver the Goods or Services in accordance with the agreed schedule.
5. Supplier’s Inability to Pay Debts
5.1 If the Supplier becomes subject to any of the events listed in Section 5.2, the Company may terminate the Contract with immediate effect by giving written notice to the Supplier and/or suspend any further performance or acceptance of deliveries under the Contract or any other contract between the Parties.
5.2 For the purposes of Section 5.1, the relevant events are:
5.2.1 the Supplier suspends or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of Section 95A of the Corporations Act 2001 (Cth), or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of the Bankruptcy Act 1966 (Cth), or (being a partnership) has any partner to whom any of the foregoing apply;
5.2.2 the Supplier commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors (including a deed of company arrangement) other than where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more companies or the solvent reconstruction of the Supplier;
5.2.3 (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Supplier;
5.2.4 (being a company) the holder of a qualifying security interest over the Supplier’s assets has become entitled to appoint or has appointed a receiver, manager, or administrative receiver;
5.2.5 a person becomes entitled to appoint a receiver over the Supplier’s assets or a receiver is appointed over the Supplier’s assets;
5.2.6 (being an individual) the Supplier is the subject of a bankruptcy petition or order, or enforcement proceedings are initiated against the Supplier’s assets;
5.2.7 a creditor or encumbrancer of the Supplier attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
5.2.8 (being a company) according to the Supplier’s balance sheet, its liabilities excluding liabilities to related parties exceeds the value of its assets and such condition persists for a period exceeding twenty-four (24) months;
5.2.9 any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Sections 5.2.1 to 5.2.8 (inclusive);
5.2.10 the Supplier suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;
5.2.11 the Company reasonably believes that the Supplier may become subject to events listed in Sections 5.2.1 to 5.2.10.
5.3 On termination of the Contract for any reason, the Supplier shall immediately refund to the Company all pre-payments or advance payments made for Goods not yet delivered or Services not yet performed.
5.4 Termination of the Contract, howsoever arising, shall not affect any of the Parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
5.5 Sections which expressly or by implication survive termination of the Contract shall continue in full force and effect.
6. Specification
6.1 The Company may from time to time require the Supplier to amend the specification of Goods or Services if required to comply with any applicable safety, statutory requirements or which do not materially affect the quality or fitness for purpose of the Goods.
6.2 To the fullest extent permitted by applicable law, the Company shall have no liability to the Supplier in respect of any loss or damage to the Supplier arising in connection with any such required amendment.
7. Trade Controls and Compliance
7.1 The Supplier represents, warrants and undertakes that:
(a) it has determined, and is solely responsible for ensuring ongoing compliance with, all applicable export control, sanctions, trade compliance, anti-boycott and economic restriction laws and regulations (collectively, “Trade Controls”) of any relevant jurisdiction, including but not limited to those of Australia, the United States (including the Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR)), the European Union, the United Kingdom, the country of manufacture, and any country through which the Goods or Services may transit or be delivered;
(b) the Goods, Services and any related technology or technical data supplied under the Contract are eligible for export, re-export, transfer or supply to the Company and its designated delivery location without violation of any Trade Controls; and
(c) neither the Supplier, its subcontractors, nor any source of the Goods or Services is located in, organised under the laws of, or owned/controlled by persons subject to sanctions or embargoes under applicable Trade Controls.
7.2 The Supplier shall not source, manufacture, sell, export, re-export, transfer, tranship or supply the Goods or Services, directly or indirectly, in violation of any Trade Controls, including to or through:
(a) any country, territory or region subject to comprehensive sanctions or embargo; or
(b) any person or entity designated on restricted party lists (including but not limited to the U.S. Specially Designated Nationals List, Denied Persons List or Entity List).
7.3 The Supplier further warrants that it has no knowledge or reason to believe that the Goods or Services will be used, directly or indirectly, in prohibited end-uses, including activities related to weapons of mass destruction, missiles, unmanned aerial vehicles, nuclear proliferation or other restricted military applications.
7.4 Upon request by the Company (at any time, including prior to or after delivery), the Supplier shall promptly provide, at its own expense, all information, documentation, certifications or assistance (including export classifications, end-user statements, supply chain details or manufacturer information) that the Company, in its sole discretion, requires to verify or maintain compliance with Trade Controls.
7.5 If at any time the Company reasonably believes (or receives notification) that the transaction, Goods or Services may violate any Trade Controls, the Company may, without liability and in addition to any other rights:
(a) suspend or terminate the Contract immediately;
(b) withhold payment or acceptance of Goods/Services; and/or
(c) require the Supplier to remedy the issue at its expense.
7.6 The Supplier shall fully indemnify, defend and hold harmless the Company, its affiliates, directors, officers and employees from and against any and all losses, liabilities, claims, damages, costs, expenses (including legal fees on a full indemnity basis), fines, penalties or proceedings arising from or related to any breach by the Supplier (or its subcontractors/suppliers) of this Section 7 or any applicable Trade Controls.
8. Supplier Warranty and Consumer Guarantees
8.1 The Supplier will use its best endeavours to assign to the Company the benefit of any warranty or guarantee it receives from its own suppliers or the manufacturer of the Goods.
8.2 Subject to the provisions of this Section 8, the Supplier warrants that the Goods shall on delivery and for a period of 12 months from the date of delivery (the “Warranty Period”):
8.2.1 correspond to the specification outlined in the data sheet provided by the Supplier or referred to in the Company’s Purchase Order; and
8.2.2 be free from defects in material, design, and workmanship.
8.3 Subject to Section 8.4 if:
8.3.1 the Company gives notice in Writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in Section 8.2;
8.3.2 the Supplier is given a reasonable opportunity of examining such Goods; and
8.3.3 the Company (if it chooses) returns such Goods to the Supplier’s place of business at the Supplier’s cost; the Supplier shall, at the Company’s option, repair or replace the defective Goods (or part of them) free of charge, or refund the Price of the defective Goods in full.
8.4 The Supplier shall remain liable for the Goods’ failure to comply with the warranty set out in Section 8.2 unless the Supplier can prove:
8.4.1 the defect arises solely because the Company failed to follow the Supplier’s written instructions as to the storage, commissioning, installation, use, and maintenance of the Goods;
8.4.2 the Company altered or repaired such Goods without the Written consent of the Supplier;
8.4.3 the defect arises as a result of fair wear and tear or wilful damage caused by the Company.
8.5 The Supplier acknowledges that the warranties provided in Section 8.2 are in addition to, and do not limit, any rights the Company has under the Australian Consumer Law.
8.6 Except as provided in this Section 8, the Supplier shall have no further liability to the Company in respect of the Goods’ failure to comply with the warranty set out in Section 8.2, provided that this does not exclude liability for negligence or breach of statutory guarantees.
8.7 Australian Consumer Law (ACL): The Supplier acknowledges that the Company may be a “consumer” for the purposes of the ACL in respect of certain Goods or Services. Nothing in this Contract excludes, restricts, or modifies any guarantee, right, or remedy implied by the ACL that cannot be lawfully excluded.
8.8 These Conditions shall continue to apply to any repaired or replacement Goods supplied by the Supplier.
8.9 Where the Company agrees to return Goods for repair, the Supplier shall ensure that any data contained within the Goods is handled in accordance with Section 12 (Privacy).
8.11 Where the Supplier carries out repair services (“Services”), the Supplier warrants the repair work and replacement parts for a period of 12 months. In these Conditions, the term “Goods” shall be deemed to include such Services.
8.12 Any terms implied by state-based Sale of Goods legislation (e.g., Sale of Goods Act 1923 (NSW) or Sale of Goods Act 1896 (Qld)) are incorporated into the Contract to the extent they benefit the Company.
9. LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
9.1.2 fraud or fraudulent misrepresentation;
9.1.3 breach of the guarantees implied by the Australian Consumer Law;
9.1.4 defective products under the Competition and Consumer Act 2010 (Cth); or
9.1.5 any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
9.2 Subject to Section 9.1 and the maximum extent permitted by applicable law:
9.2.1 the Supplier shall be responsible for any damage to or loss of the Company’s programs or data caused by the Goods;
9.2.3 the Company’s total liability to the Supplier in respect of all losses arising under or in connection with the Contract shall in no circumstances exceed the Price of the Goods; and
9.2.4 the Supplier shall be liable for any special, indirect, punitive, or consequential damages (including loss of revenues, business, or profits) arising from the Supplier’s breach of the Contract.
10. Intellectual Property
10.1 The Supplier acknowledges and agrees that (a) except to the extent provided in a separate written agreement between the Parties, the Company reserves and retains all Intellectual Property Rights contained in and arising out of the Company’s specifications, materials, and the results of the Services; (b) any and all of the Company’s Intellectual Property Rights are the sole and exclusive property of the Company or its licensors; (c) the Supplier does not and shall not acquire any ownership interest in, right to, or license under any of the Company’s Intellectual Property Rights by providing the Goods or Services under the Contract; (d) any goodwill derived from the Supplier’s use of the Company’s Intellectual Property Rights inures to the benefit of the Company; (e) if, notwithstanding the foregoing, the Supplier acquires any Intellectual Property Rights in or relating to any Goods or Services specifically developed for the Company hereunder by applicable law, or otherwise, such rights are deemed and are to the fullest extent permissible under applicable law, hereby irrevocably assigned to or are vested in the Company without further action by either party (save that the Supplier shall do all such things as may be required by the Company to give effect to such assignment); and (f) the Supplier shall not use the Company’s Intellectual Property Rights without the Company’s prior express written consent and then only in strict accordance with such consent. The Supplier shall not make any claim or take any action that is adverse to or could interfere with any of the Company’s Intellectual Property Rights, including the Company’s ownership or exercise of them; and shall not alter, obscure or remove any of the Company’s marks or proprietary rights notices placed on materials provided by the Company.
10.1 The Supplier warrants that the Goods and Services supplied under the Contract do not infringe a third party’s Intellectual Property Rights. If the Company receives a third party allegation of infringement, the Supplier shall at its own expense and the Company’s option: (a) obtain for the Company the right to continue using such Goods, or (b) replace the Goods with non-infringing Goods, or (c) modify the Goods so that they become non-infringing, or (d) accept the return of the Goods and refund the Price. The Supplier shall fully indemnify, defend (including taking over conduct of the defence upon notice) and hold harmless the Company and its affiliates, officers, employees and customers against any IP Claim, including all liabilities, damages, losses, costs and expenses (including legal fees on a full indemnity basis) arising therefrom. The Supplier shall have control of the defence and settlement, provided it does not admit liability on behalf of the Company or settle in a manner that imposes obligations on the Company without the Company’s prior written consent.
Under no circumstances shall the Company have any liability for any IP Claim arising from the Supplier’s designs, specifications, manufacturing processes, or inclusion of third-party materials or components.
10.2 The remedies set out in Section 10.1 (including the right to require the Supplier to procure a licence, replace or modify the Goods/Services, or refund the Price) shall be the Company’s primary remedies for any infringement of third-party Intellectual Property Rights. However, nothing in this Section 10 shall limit or exclude:
(a) the Supplier’s indemnity, defence and hold harmless obligations under Section 10.1 or Section 20 (Indemnities);
(b) the Company’s right to claim any other remedies available at law or in equity (including damages for loss of profits, consequential losses, costs of cover, removal/replacement costs, or any other direct or indirect losses); or
(c) the Company’s right to terminate the Contract or reject the Goods/Services in the event of any IP Claim.
The Supplier’s liability for Intellectual Property Rights infringement shall be unlimited in amount and duration.
12. Use and Disclosure of Personal Information
12.1 By entering the Contract, the Supplier acknowledges and agrees that the Company may provide information that identifies an individual (“Personal Information”), and that the Supplier shall handle such information in accordance with the Privacy Act 1988 (Cth) and the Australian Privacy Principles (APPs). For the purposes of this Section 12, the following definitions shall apply:
- Personal Information: has the meaning given in the Privacy Act 1988 (Cth).
- Data Protection Legislation: the Privacy Act 1988 (Cth), the Australian Privacy Principles, and all other legislation and regulatory requirements in force from time to time in Australia which apply to a party relating to the use of Personal Information.
12.2 To the extent the Supplier receives Personal Information from the Company, the Supplier shall process such Personal Information only in accordance with the Company’s instructions and only to the extent necessary to perform its obligations under the Contract, and in any event the Supplier shall comply with all requirements of the Data Protection Legislation. The Supplier shall notify the Company in writing within 24 hours of any Personal Information Breach or security breach affecting the Company’s data, including details of affected individuals. The Supplier shall not transfer Personal Information outside Australia without the Company’s prior Written consent. Upon expiration or termination of the Contract, or on written request by the Company, the Supplier shall erase, destroy or return to the Company all Personal Information received from the Company.
12.3 The Supplier represents and warrants for the duration and purposes of the Contract that: (a) it has the necessary authority, consents and notices in place to process Personal Information as permitted in the Contract; (b) it has implemented appropriate technical and organisational measures to ensure processing is performed in accordance with the Data Protection Legislation and to protect against loss, damage or destruction of Personal Information; (c) it has implemented appropriate data protection policies; (d) it shall maintain complete and accurate records to demonstrate compliance with this Section 12 and allow for audits by the Company or its designated auditor; and (e) it shall ensure that all personnel who have access to or process Personal Information are obliged to keep the Personal Information confidential.
13. Cancellations
13.1 The Company may cancel, amend or suspend a Purchase Order at any time before delivery by giving Written notice to the Supplier. Upon such cancellation, the Company’s sole liability shall be to pay for Goods or Services already delivered and accepted, and to reimburse the Supplier for unavoidable and documented direct costs incurred in relation to the cancelled part of the Order.
13.2 The Supplier shall indemnify the Company in respect of any third-party claims arising out of the Supplier’s failure to perform its obligations following an order amendment or cancellation.
14. Delivery & Acceptance of the Goods
14.1 The Supplier shall deliver the Goods on the date specified in the Purchase Order. Time of delivery shall be of the essence.
14.2 If the Supplier fails to deliver the Goods by the specified date, the Company may terminate the Contract immediately and the Supplier’s liability shall include the costs and expenses incurred by the Company in obtaining replacement goods of similar description and quality in the general market.
14.3 Any discrepancy between the Goods and the Supplier’s packing note must be rectified by the Supplier at its own cost immediately upon notification by the Company.
14.4 The Company may require delivery by instalments. Failure by the Supplier to deliver any one instalment shall entitle the Company to terminate the whole Contract.
14.5 Delivery of the Goods shall be deemed to have taken place when the Company accepts delivery Delivered Duty Paid (DDP) (Incoterms 2020) at the location specified in the Purchase Order, unless otherwise agreed in Writing.
14.6 The risk of loss or damage of any kind and title to the Goods shall pass to the Company upon completion of delivery in accordance with Section 14.5, unless otherwise agreed in Writing.
14.7 The Company shall have a period of 30 days following delivery to inspect the Goods and notify the Supplier of any rejection. Acceptance of delivery shall not constitute acceptance of the quality of the Goods.
14.8 Goods that do not comply with Section 8 may be rejected by the Company and returned at the Supplier’s expense and risk.
15. Returns and Rejection
15.1 The Company shall be entitled to reject any Goods or Services delivered which are not in accordance with the Contract or the warranties set out in Section 8. The Company does not accept any “no return” or “restocking fee” policies of the Supplier unless expressly agreed in Writing in the Purchase Order.
15.2 If the Company rejects any Goods, the Supplier shall, at the Company’s option and at the Supplier’s sole expense (including all carriage and insurance costs), promptly (a) replace the rejected Goods with Goods that conform with the Contract; or (b) repair the Goods to the Company’s satisfaction; or (c) refund the Price of the rejected Goods in full. The Supplier must provide a returns reference number immediately upon notification of rejection; however, the Company’s right to reject shall not be contingent on the issuance of such reference. Rejected Goods shall be held at the Supplier’s risk from the moment of rejection.
15.3 The Company shall not be liable for any handling fees, restocking charges, or administrative costs associated with the return of defective or non-conforming Goods.
15.4 If the Supplier fails to collect or accept the return of rejected Goods within 14 days of notification, the Company may, at its sole discretion, store such Goods at the Supplier’s risk and charge the Supplier for such storage, or destroy/dispose of the Goods at the Supplier’s expense. Any costs occasioned by such disposal or destruction shall be a debt due from the Supplier to the Company.
16. Title and Retention of Title (PPSA)
16.1 Title to the Goods and the risk of loss or damage of any kind shall pass to the Company upon completion of delivery in accordance with Section 14.5.
16.2 Until title to the Goods has passed to the Company (in the event of pre-payment), the Supplier shall: 16.2.1 store the Goods separately from all other goods held by the Supplier so that they remain readily identifiable as the Company’s property; 16.2.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; 16.2.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price; 16.2.4 notify the Company immediately if it becomes subject to any of the events listed in Section 5.2.
16.3 The Company may use or resell the Goods in the ordinary course of its business immediately upon delivery.
16.4 If before delivery the Supplier becomes subject to any of the events listed in Section 5.2, then, without limiting any other right or remedy the Company may have: 16.4.1 the Supplier’s right to deal with the Goods ceases immediately; 16.4.2 the Company may at any time require the Supplier to deliver up all Goods in its possession to which the Company has title and, if the Supplier fails to do so promptly, enter any premises (or cause a third-party to do so) of the Supplier or of any third party where the Goods are stored in order to recover them.
16. Personal Property Securities Act 2009 (Cth) (“PPSA”)
16.5 The Parties agree that, to the fullest extent permitted by law:
(a) these Conditions and any Contract do not create or give rise to any security interest (including any purchase money security interest or retention of title) in favour of the Supplier;
(b) title to the Goods passes to the Company on the earlier of delivery or payment for the Goods;
(c) if, notwithstanding the foregoing, any supply under the Contract is deemed to create a security interest in favour of the Supplier, the Supplier irrevocably waives any right it may have to receive a verification statement or any other notice under the PPSA (including under section 157); and
(d) the Supplier must, at its own cost, promptly do anything reasonably required by the Company (including executing documents or providing information) to ensure that any such security interest is unenforceable, subordinate to any interests of the Company or its financiers, or removed from the Personal Property Securities Register.
17. Force Majeure
17.1 Neither Party shall be liable for any delay or failure in performing its obligations under the Contract if such delay or failure results from a Force Majeure Event. A ‘Force Majeure Event’ means any cause outside the reasonable control of the Party including, but not limited to: Acts of God, explosion, fire or accident, acts of terrorism, flood, war or threat of war, civil disturbance, riot, acts of government, import or export regulations or embargoes, or strikes.
17.2 The Supplier shall use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations. If a Force Majeure Event prevents, hinders, or delays the Supplier’s performance of its obligations for a continuous period of more than 30 days, the Company may terminate the Contract immediately by giving Written notice to the Supplier.
18. General
18.1 Notices. Any notices to be served under the Contract must be in Writing and delivered personally, sent by courier or by registered mail with acknowledgement of receipt, or by email with acknowledgment of delivery, in the case of the Company to its registered office or email address and in the case of the Supplier, to the address or email address in its quotation or otherwise notified in Writing to the Company. A notice shall be deemed to have been received: if delivered by courier or personally; when left at the relevant address; if posted by registered mail then two working days (i.e. excluding Saturdays, Sundays, and Australian public holidays) after being posted; and if sent by email, one working day prior to 16.00hrs after successful transmission of the email, otherwise on the next working day.
18.2 Assignment and Other Dealings 18.2.1 The Company may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. 18.2.2 The Supplier may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Company.
18.3 Third Party Rights. A person who is not a Party to the Contract shall not have any rights to enforce its terms.
18.4 Publicity. The Supplier shall not publicise (for example by making press statements or by issuing press releases) or release any information in relation to or about the Contract except with the Company’s prior written consent.
18.5 Relationship. Nothing in the Contract creates a joint venture, relationship of partnership or agency between the Parties. Accordingly, except as expressly authorised under the Contract neither Party has authority to pledge the credit of or make any representation or give any authority to contract on behalf of another Party. No staff of the Supplier shall be construed as being an employee of the Company by virtue only of the Contract or the performance of the respective Party’s obligations under the Contract.
18.6 Waiver. No forbearance, delay or indulgence by the Company in enforcing the provisions of the Contract shall prejudice or restrict the rights of the Company nor shall any waiver of its rights in relation to a breach of the Contract operate as a waiver of any subsequent breach and no right, power or remedy given to or reserved to the Company under the Contract is exclusive of any other right, power or remedy available to the Company and each such right, power or remedy shall be cumulative.
18.7 Severability. Notwithstanding that the whole or any part of any provision of the Contract may prove to be illegal or unenforceable the other provisions of the Contract and the remainder of the provision in question shall remain in full force and effect.
18.8 Variation. The Contract may only be changed or added to by a written variation referencing this Section 18.8, agreed and signed by both Parties.
18.9 Precedence. In the event of any conflict between the various documents forming part of the Contract, the order of precedence shall be as follows: (i) these Conditions; (ii) any special conditions agreed in writing; and (iii) any other written document forming part of the Contract.
18.10 Entire Agreement. These Conditions together with the issued purchase order and any other documents stated to form part of the Contract constitute the entire agreement and understanding between the Parties relating to the subject matter. Except as may be expressly stated in the Contract, it supersedes and cancels all prior agreements, statements, representations, understandings, negotiations and discussions, whether oral or written, between the Parties. Each of the Parties acknowledges and agrees that in entering into the Contract it does not rely on any statement, representation, warranty or understanding made prior to the Contract save to the extent that such statement, representation, warranty or understanding is incorporated into the Contract. Each of the Parties acknowledges and agrees that in entering into the Contract it has not relied on (or has been induced to enter into the Contract by) any statement, representation, warranty or understanding made prior to the Contract.
18.11 Counterparts. The Contract may be executed in counterparts (including electronic signatures), all of which shall constitute one agreement between the Parties.
19. Confidentiality
19.1 The Supplier acknowledges that it may receive and be exposed to Confidential Information that the Company desires to protect from unauthorised access, disclosure, or use. “Confidential Information” shall mean any and all information relating to the Company, the Goods and Services provided under the Contract, know-how, technology, source code, object code, software, writings, designs, flow charts, databases, specifications, documentation, discoveries, inventions, creations, processes, methods, procedures, concepts, ideas, trade secrets, prototypes, plans, designs, illustrations, sourcing information, pricing, financial information, and other information about the Goods and Services, all of which belongs to the Company. Confidential Information may be expressed in oral, written, electronic or other form.
19.2 Confidential Information shall not include: (a) information that is or becomes generally known to the public other than through breach of a duty of confidentiality to the Company; or (b) information that the Supplier had in its possession at the time of disclosure and was not acquired from the Company or a third party that owed a duty of confidentiality to the Company as evidenced by the Supplier’s pre-existing written records.
19.3 If the Supplier is required to disclose Confidential Information by virtue of a legal requirement, the Supplier must first give the Company prompt written notice of the potential for such disclosure and the opportunity to seek a protective order or otherwise intervene and the Supplier must limit the disclosure to the narrowest possible disclosure and continue to protect the confidentiality of the Confidential Information. The Supplier shall only share the Confidential Information with its employees, legal, and financial advisers who have a need to know the Confidential Information to enable the Supplier to assist in the business relationship with the Company and who agree in writing to be bound by the terms of this Agreement prior to receiving any Confidential Information. The Supplier shall not otherwise disclose the Confidential Information to any third party. The Supplier shall protect Company’s Confidential Information from unauthorised access, disclosure, or use at least to the extent and in the same manner the Supplier protects its own similar information, but in no event shall Supplier use less than commercially reasonable methods.
19.4 If any unauthorised access to, disclosure of, or use of any Confidential Information by or through the Supplier occurs, the Supplier shall promptly notify the Company and cooperate with the Company to protect against further unauthorised access, disclosure, or use. The Supplier shall use the Confidential Information exclusively for the purposes of executing the Contract. The Supplier acknowledges that ownership of and title to the Confidential Information, as well as any derivative works, improvements upon or modifications to the Confidential Information shall remain at all times with the Company and that the Confidential Information has value. At any time upon request by the Company, the Supplier shall promptly return to the Company all Confidential Information or, at the Company’s option, destroy the Confidential Information in the Supplier’s possession.
20. Indemnification
The Supplier shall indemnify, reimburse, release, hold harmless, and defend the Company and its affiliates and their respective successors and assigns and their respective directors, officers, agents and representatives, from and against any loss, liability, claims, judgments, settlement amounts, damages, liabilities, deficiencies, expenses (including reasonable legal fees and disbursements of counsel), suits and costs, directly or indirectly, caused by, arising out of or relating to:
(a) the Intellectual Property Rights in the Goods supplied hereunder or the packages or containers in which they are shipped, if such Goods, packages or containers are made pursuant to or in compliance with the Supplier’s design, instruction or specifications;
(b) infringement of any Intellectual Property Rights to the extent that such infringement arises from designs, specifications or instructions furnished or expressly or implicitly required by the Supplier or use of equipment provided by the Supplier or that the Supplier requires the Company to use;
(c) the application or the use to which Goods provided hereunder are put by the Supplier or others; or
(d) any third party claim based on an actual or alleged breach of the covenants, representations, and warranties made by the Supplier in Section 8, or any violation of applicable data protection or privacy laws by the Supplier.
21. Governing Law and Jurisdiction
This Contract is subject to the law of Queensland, Australia to whose exclusive jurisdictions the Parties hereto irrevocably submit save that the Company may take protective proceedings in any jurisdiction it deems necessary to protect its interests. It is noted that export control, sanctions and trade compliance laws of countries other than Australia may apply to the Contract as set out in Section 7.