These terms and conditions govern the supply of Products to Planet Innovation Pty Ltd (ABN 35 137 428 141) and Planet Innovation Products Pty Ltd (ABN 50 153 338 660), Australian corporations with principal offices at 436 Elgar Rd, Box Hill, VIC, 3128, Australia, and Planet Innovation Products, Inc a Delaware corporation with principal offices at 6 Thomas, Irvine, CA 92618, USA.
Product means components, assemblies or equipment supplied in accordance with a Purchase Order.
Manufacturing Documentation means drawings, manufacturing controls and other specifications required to build, qualify and release the Product to PIH as specified by PIH.
Specifications means the specification for each Product respectively that is agreed between the parties in writing and that includes part numbers, bill of materials, a list of all specifications that define the functional, technical, materials or performance specification, manufacturing protocols or instructions, QC test requirements, drawings, work instructions or other information or requirements needed for the operation, maintenance and/or storage.
Certificate of Conformance (CoC) means a document that certifies that the Products meet the Specifications.
PIH means Planet Innovation Holdings Limited and its wholly owned subsidiaries, which includes Planet Innovation Pty Ltd (PI), Planet Innovation Products Pty Ltd (PIP) and Planet Innovation Products, Inc. (PIP Inc.).
2. Orders and Delivery
- Purchase Orders. PIH shall deliver to the Supplier written purchase orders that each specify the:
- purchasing entity
- purchase order number;
- quantity of Products ordered;
- price that conforms to the price set in accordance with Section 3;
- part number;
- time for delivery; and
- place of delivery,
Suppliers must confirm receipt of each Purchase Order delivered to it within five (5) days of receipt thereof and, in doing so, shall notify PIH of the scheduled delivery date, which shall be no later than three (3) months from the date of the corresponding Purchase Order, unless agreed otherwise.
- Delivery documents, declarations and invoices. Supplier shall deliver to PIH the following documents with each delivery of Product:
- Delivery docket;
- Tax invoice (with details in accordance with Section 2.1);
- CoC or agreed equivalent quality approved acceptance document, and inspection details defined in the PO;
- For all international shipments – Airway Bill (AWB) or Bill of Lading (BoL), and Harmonised Commodity (HS) codes for all goods must be supplied.
- Inconsistencies. Any terms or condition relating to the supply of Products that are inconsistent with these terms and conditions are void and are superseded by these terms and conditions.
- Supplier to Notify. If, for any reason, the Supplier believes that it is or is likely to be unable to fulfil all or any part of any Purchase Orders, it shall immediately inform PIH in writing of such inability to meet demand. Nothing in this clause 2.4 shall release the Supplier from its obligation to fulfil a Purchase Order.
- Manufacture. Supplier warrants that it shall manufacture the Products ordered by PIH in accordance with the Specifications and comply with all applicable statutory requirements.
- Stock on Hand. Supplier warrants that throughout the term of this Agreement, it shall have sufficient stock of raw materials, parts and components in order to be able to comply with its obligation to deliver all the Products ordered in accordance with these terms and conditions. Supplier acknowledges that PIH shall not have any responsibility or liability to pay for any raw materials, parts and/or components that Supplier purchased or otherwise acquired and that is required for Products in excess of those that are the subject of binding Purchase Orders.
- Delivery. Supplier shall deliver to PIH the Products ordered in a Purchase Order and all corresponding Manufacturing Documentation.
- Mode of Delivery. The mode of all deliveries to PIH of Product under this Supplier Agreement shall be Ex-Works (Incoterm 2020). The time for delivery shall be within the time specified in a Purchase Order, unless PIH delivers to the Supplier reasonable notice of a deferment, in which case, the time for delivery shall be at that deferred time.
- Inspection. PIH shall have the right to enter the Supplier’s premises to inspect the manufacturing facilities and the equipment used by the Supplier in the manufacture of the Products, all subject to PIH providing reasonable notice to that effect.
3. Payment and Prices
- Pay. PIH shall pay the Supplier for Products delivered to it pursuant to a Purchase Order within thirty (30) days from the date of delivery, unless agreed otherwise.
- Prices. The price for the Products shall be based on an open book, volume pricing model.
- Price Adjustments. The parties shall review and adjust the Product prices every 12 months. Supplier agrees that it shall aim in good faith to achieve a five percent (5%) cost reduction year-on year. The benefit from Supplier driven cost reduction initiatives shall be shared by Supplier and PIH and reflected in the Product price applicable to all Purchase Orders for Product in which the cost reduction is implemented until the subsequent pricing review where the baseline will be reset. All price adjustments shall be subject to the parties’ mutual agreement.
- Price Increases. Any increase in the price of Products must be agreed between the parties at least ninety (90) days in advance of any such increase taking effect. In addition, any increase in the price of Products of 3% or more in any twelve months period must be reviewed by the parties and supported by documented evidence that reasonably supports any proposed price increase. If and once agreed, any price increase will apply only to orders that PIH places with Supplier after the price increase becomes effective.
- Taxes. All applicable taxes, including, without limitation, goods and services tax (GST), if any, and other charges such as duties, customs, tariffs and other government-imposed surcharges shall be stated separately on Supplier’s invoice. Supplier shall remit all such charges to the appropriate tax authority. Where goods are supplied to PIH from outside Australia, Supplier shall have sole responsibility for payment of all taxes and other charges that are imposed by tax and other authorities outside Australia and that relate to the manufacture and/or supply of the Products. Unless otherwise stated, all sums payable under this Agreement are exclusive of GST and any other duties or taxes.
4. Supplier’s Warranties
Supplier represents and warrants to PIH that:
- the Products will be manufactured with all due skill, competence, care and attention, consistent with the competent standards as reasonably recognized by the industry, free from defects in workmanship and material;
- for a period of 12 months from delivery in accordance with Section 2 (Warranty Period), the Product will be free from manufacturing defects;
- it shall supply to PIH all the Products ordered by PIH under a Purchase Order;
- the Products shall conform in all respects with the Specifications;
- it shall comply with all labelling, packaging, handling and storage instructions;
- the Products comply with all applicable laws and are of merchantable quality;
- Supplier has good and marketable title to the Products to be supplied hereunder and there are no liens, claims, security interests or encumbrances of any kind whatsoever against the Products
- to the Supplier’s knowledge, the Products do not infringe or breach any intellectual property rights, privacy or publicity rights, or other proprietary rights of any third party.
5. Remedy under Warranty
- Remedy under Warranty. Where Supplier breaches a warranty set out in Section 4, Supplier will, at its discretion:
- replace or repair the non-confirming Products; or
- issue a credit note for the replacement value of the Products and refund the amount paid by PIH and all return costs (in respect of those units of Product returned to its under Section 5.3
- Remedy Process – Notice. Within three (3) weeks of identifying a breach of a warranty set out in Section 4, PIH shall deliver to the Supplier written notice to such effect (Warranty Notice) in which it:
- describes the non-compliance and otherwise the defect;
- the affected part number;
- the quantity of Products or parts affected; and
- the PO number corresponding to the defective part.
- RMA and Return. Supplier shall deliver to PIH a return material authorization (RMA) number within three (3) days of receiving from PIH a Warranty Notice, following which:
- PIH shall be entitled to return to the Supplier the Products which are the subject of the Warranty Notice; and
- Supplier shall accept return of such Products and, within 15 days of receipt of the RMA, replace at its expense or issue a credit note to PIH in accordance with Section 5.1 and, in the case of replacements, bear all costs and expenses of and related to the delivery of returned Products from PIH to Supplier and the delivery of replacement Products from the Supplier to PIH.
Supplier will, within three (3) days of receipt of information of any complaint which relates to the Product, deliver to PIH written notice to such effect. For complaints which Supplier receives directly or of which PIH deliver notice to Supplier, Supplier will review and investigate the complaint within five (5) days of receipt. Supplier will notify PIH (Attention: Quality Assurance) within twenty-four (24) hours regarding any report of serious injury or serious health risk. Supplier will provide assistance, without charge, to PIH at its request to investigate and respond to such complaints.
7. Quality standards, compliance and audits
- ISO. Manufacturer warrants that throughout the term of this Agreement it shall maintain ISO 9001 and/or ISO13485 accreditation and compliance, as required.
- Inspection. Supplier shall make its records and facilities involved in the performance of this Agreement available for inspection by PIH’s authorized representatives at mutually convenient times during normal business hours for audit purposes and shall take any reasonable actions required by PIH to facilitate such audit.
- Unannounced Audits. Supplier must permit PIH to attend its premises for unannounced audits. In the event of an unannounced audit, Supplier must permit its facilities and processes to be audited by PIH, relevant notified bodies, or any other regulatory authority in respect of the Products, and shall provide support for Product specific audit at PIH’s expense (which expenses are limited to out-of-pocket fees and expenses incurred by PIH).
8. Design change process
- Supplier cannot make any changes or modifications to the manufacturing and/or control procedures, to the materials used in manufacture, the equipment and processes used to manufacture and control the Products or otherwise to the Specifications of the Products unless PIH deliver to the Supplier an appropriate written Change Order to such effect.
- All changes impacting on form, fit and/or function must first be approved by PIH before implementation including in relation to:
- substitution of alternate materials, components or processes; and
- any change to manufacturing location(s).
9. Retention of records and samples
Supplier will properly track each batch number of the Product, for traceability, so as to be able to provide a full manufacturing history and design history records. Supplier shall maintain complete and accurate records relating to the Products for a period of at least five (5) years from the date of last manufacture which records shall include, but not be limited to, all relevant information and documentation relating to the Products. In the event that governmental regulations in the country where the Products are registered require longer retention of records, then Supplier shall comply with said record keeping requirements. At the expiry of such five (5) years, Supplier will deliver to PIH such records for its safe keeping. Whilst in the Supplier’s possession and control, such records shall be maintained at the place where the Products are manufactured and shall be available at all reasonable times for inspection. Copies of records and reference samples shall be made available to PIH as requested.
10. Intellectual Property
IP License. The Supplier hereby grants, and shall ensure that all applicable third parties shall grant, to PIH all the rights to use, alter, maintain, repair, market, demonstrate, distribute, supply or otherwise dispose of the Products and to permit PIH’s distributors and customers to do so too on an unrestricted, royalty-free, worldwide, perpetual, irrevocable, transferable basis (Required Rights). The Supplier shall (and shall ensure that its subcontractors shall), at PIH’s request and reasonable expense, do all reasonable acts and execute all documents and procure the execution of all documents which may be necessary to:
(a) confer upon PIH the Required rights;
(b) enable PIH and its assignees to enforce and defend the Required Rights; and
(c) enable PIH and its assignees to exercise the Required Rights.
- Definition. “Confidential Information” means and any other information which shall have been communicated by either party to the other in confidence under this Agreement, or which by its nature ought to be regarded as confidential, shall be treated by the recipient of information (Recipient) as confidential (both during and after the term hereof) including but not limited to (i) the business, affairs, technical data, financial data, customers, clients, suppliers, plans, intentions, or market opportunities of either Party; and (ii) the operations, processes, product information, know-how, designs, trade secrets or software of either party, PROVIDED THAT “Confidential Information” shall not include information which (i) was in the possession of the Recipient before the Agreement unless disclosed to the receiving party by the disclosing party in contemplation of this Agreement; (ii) was subsequently disclosed to the Recipient without any obligation of confidence, by a third party provided that such third party was acting lawfully; (iii) is or subsequently becomes generally available to the public through no fault of the Recipient; or (iv) was independently developed by the Recipient without any use of the disclosing Party’s (Disclosing Party) confidential information.
- Duty of Confidence. Each Recipient agrees to keep confidential, and not to use or disclose, other than as permitted by this Agreement, any Confidential Information of the Disclosing party. The obligation extends to Confidential Information provided to or obtained by a Recipient before entering into this Agreement. The Recipient must take all steps and do all things as may be reasonably necessary, prudent or desirable in order to safeguard the confidentiality of the Confidential Information of the Disclosing Party.
- Supplier’s duties. Supplier agrees not to disclose any of PIH’s Confidential Information to any other party other than a third party manufacturer of the components and only to the extent necessary for the manufacture of the Product; provided that such third party manufacturer shall be obliged in writing to keep confidential such Confidential Information and not to use it for other purposes than the manufacture of the Product.
12. Insurance, Indemnity and Limitation of Liabilities
- Insurance. The Supplier shall maintain at its own cost product liability insurance for not less than US$2 million for claims arising from any single event and not less than US$5 million in aggregate for all claims arising in a year.
- Indemnity. Each party (Indemnitor) indemnifies the other party and such other party’s directors, officers, employees and other agents (collectively, the Indemnitees) against any and all losses, liabilities, costs and damages, including reasonable attorneys’ fees and expenses of litigation, incurred by or imposed upon any of the Indemnitees in connection with any claims, suits, actions, demands or judgments brought against the Indemnitees as a result of the Indemnitor’s breach of any of the terms or conditions of this Agreement or the Indemnitor’s gross negligence.
- Limitation of Liability. Neither party shall be entitled to recover from the other party any special, incidental, consequential or punitive damages, and neither party will be liable to the other party for any claim for loss or damages arising directly or indirectly in connection with the subject matter of the Agreement that cannot reasonably be considered to arise naturally from the event or events giving rise to the losses or for any claims for loss of profit, loss of revenue, loss of production, loss of goodwill or loss of savings, however caused, under any theory of liability PROVIDED THAT nothing in this Agreement shall limit or exclude the liability of either party for: (i) death or personal injury resulting from negligence; or (ii) fraud or fraudulent misrepresentation; or (iii) the deliberate default or wilful misconduct of that party, its employees, agents or subcontractors.
13. Force majeure
- Definition. Force Majeure means any event beyond such party’s reasonable control, including, acts of God, acts of a public enemy, war, civil unrest, acts of terrorism, embargoes, fires, floods, earthquakes, other natural forces, explosions, accidents or other catastrophes, epidemics, strikes or other labour stoppages, or any other event similar to those enumerated above.
- Effect of Force Majeure. If either party is affected by a Force Majeure, it shall immediately notify the other party in writing of the nature and extent thereof. Neither party shall be deemed to be in breach of this Agreement, or otherwise be liable to the other, by reason of any delay in performance, or non-performance, of any of its obligations hereunder to the extent that such delay or non-performance is due to any Event of Force Majeure properly notified to the other party provided that:
- the circumstances in question could not have been reasonably foreseen; and
- the party affected by Force Majeure takes all reasonable steps in good faith to mitigate the effects of Force Majeure.
- if a party affected by a Force Majeure is not able to perform its obligations under this Agreement for a consecutive period of three (3) months, the other party shall be entitled to terminate this by delivering notice to such effect to the affected party.
- No failure or delay by either party in exercising any of its rights or remedies under this Agreement shall be deemed to be a waiver of that right or remedy and no waiver by either party of any breach of this Agreement by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
- If any provision of this agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
- If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
- Nothing in this Agreement shall be deemed to constitute a partnership between either of the parties nor constitute one party the agent of the other party for any purpose.
- This Agreement will be construed, governed, and interpreted in accordance with the laws of the State Victoria, Australia, without regard to its conflict of laws principles and the parties exclusively submit to the jurisdiction of such courts.