These terms and conditions govern the supply of Products and/or Services to PI as ordered under the Purchase Order.
These terms and conditions take effect on and from 1 February 2022.
Agreement means the agreement between PI and Supplier for the provision of the products and/or Services, comprising the Purchase Order and these Purchase Order Terms.
Certificate of Conformance (CoC) means a document that certifies that the Products meet the Specifications.
Deliverables means any deliverables resulting from the performance of the Services as specified in the Purchase Order.
Expenses means expenses related to the performance of Services as specified in the Purchase Order.
Manufacturing Documentation means drawings, manufacturing controls and other specifications required to build, qualify and release the Product to PI as specified by PI.
Key Personnel means any specific personnel named in the Purchase Order as performing the Services.
PI means the purchasing entity identified in the Purchase Order.
Products means components, assemblies or equipment (if any) specified in the Purchase Order.
Product Prices means the prices for the Products specified in the Purchase Order.
Purchase Order means the purchase order issued by PI to which these Purchase Order Terms are attached or linked, and includes any document attached to, or incorporated by reference into, the Purchase Order.
Service Fees means the fees for the Services as specified in the Purchase Order.
Services means the services (if any) described in the Purchase Order.
Specifications means the specifications for each Product set out or referred to in the Purchase Order and includes the functional, technical, materials or performance specifications, manufacturing documentation, protocols or instructions, QC test requirements, drawings, work instructions or other information or requirements needed for the operation, maintenance and/or storage of each Product.
Supplier Code of Conduct means the code of conduct available here. (PDF 90KB)
2. Supply of Products
- Delivery. Supplier shall deliver to PI the Products and all corresponding Manufacturing Documentation. Unless otherwise specified, title in the Products will pass to PI on delivery.
- Mode of Delivery. The mode of delivery to PI of Products shall be ex Works (Supplier’s premises as set out in the Purchase Order) (Incoterms 2020), unless agreed otherwise in writing.
- Time of Delivery. Supplier must deliver the Products within the time specified in the Purchase Order, unless PI delivers to Supplier reasonable notice of a deferment, in which case, the time for delivery shall be at that deferred time.
- Delivery documents, declarations and invoices. Supplier shall deliver to PI the following documents with each delivery of Products:
a. delivery docket;
b. a valid tax invoice that complies with GST law;
c. CoC and inspection details defined in the Purchase Order or any agreed alternative quality acceptance document; and
d. for all international shipments – Airway Bill (AWB) or Bill of Lading (BoL), and Harmonised Commodity (HS) codes for all Products.
e. A copy of the Certificate of Origin for international shipments to be made available to PI on request.
- Supplier to Notify. If, for any reason, Supplier believes that it is or is likely to be unable to fulfil all or any part of thePurchase Order, it shall immediately inform PI in writing of such inability to meet demand. Nothing in this clause 2.5shall release the Supplier from its obligation to fulfil a Purchase Order.
- Manufacture. Supplier shall manufacture the Products ordered by PI 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 PI 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 the Purchase Order.
- Inspection. PI shall have the right to enter Supplier’s premises to inspect the manufacturing facilities and the equipment used by Supplier in the manufacture of the Products, subject to PI providing reasonable notice to that effect.
- 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 PI delivers to Supplier an appropriate written change order to such effect. All changes impacting on form, fit and/or function must first be approved by PI in writing before implementation including in relation to:
a. substitution of alternate materials, components or processes; and
b. any change to manufacturing location(s).
- 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 PI such records for its safe keeping. Whilst in 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 PI as requested.
3. Performance of Services
- Provision of Services. Supplier shall supply the Services at the times and in the manner set out in the Purchase Order.
- Deliverables. Supplier must provide the Deliverables at the times specified in the Purchase Order.
- Personnel. Supplier must ensure that its personnel who perform the Services are appropriately qualified and experienced in providing services of that nature. Supplier must replace any personnel on request of PI. All replacement personnel must also be appropriately qualified and experienced in providing services of that nature. Supplier must ensure that any of its personnel who are on PI’s premises comply with all of PI’s relevant policies and procedures. Supplier is responsible for meeting all entitlements of its personnel, including annual leave, sick leave, superannuation and workers compensation.
- Key Personnel. If any Key Personnel are nominated, Supplier must ensure that the services are performed by the Key Personnel.
- Compliance with directions. Supplier must comply with PI’s directions from time to time in relation to the performance of the Services.
- Subcontracting. Supplier may not subcontract the performance of any of the Services without the prior written approval of PI, which approval PI may withhold or make subject to such conditions as it sees fit.
- Delays. Supplier must:
a. promptly notify PI of any delays in the performance or completion of the Services;
b. take all steps to minimise any such delays.
4. Payment and Prices
- Invoices for Products. Supplier must issue a valid tax invoice for the Product Prices for Products delivered to PI at the time of delivery. Each invoice for Products must:
a. reference the Purchase Order;
b. itemise the quantity of Products delivered and the Product Price for each Product.
- Invoices for Services. Supplier must issue a valid tax invoice for the Service Fees and Expenses on completion of the Services or at such other times specified in the Purchase Order. Each invoice for Services must:
a. reference the Purchase Order;
b. itemise the Services performed;
c. set out how the service fees have been calculated, whether on a time and materials or fixed price basis. If Service Fees are stated in the Purchase Order to be fixed price or subject to a fee cap, the total Service Fees invoiced may not exceed that fixed price or fee cap; and
d. itemise the Expenses incurred, and include documentation as requested by PI evidencing the expenses incurred.
- Payment. PI shall pay Supplier for undisputed amounts invoiced within thirty (30) days from the date of receipt of the invoice, unless alternative payment terms are agreed in writing.
- Price adjustments. Supplier acknowledges and agrees that:
a. the Product Prices and Services Fees are fixed and cannot be adjusted for the Products and Services purchased under this Purchase Order; and
b. it will, in good faith, endeavour to maintain or reduce Product Prices and Services Fees for the same or equivalentProducts and Services purchased under future purchase orders; and
c. if, despite paragraph (b) above, there are to be increases in the Product Prices and Services Fees for the same or equivalent Products and Services purchased under future purchase orders, such increases will not exceed 3% in any 12 month period unless agreed by the parties in writing and supported by documented evidence that reasonably supports any price increase.
- 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 Products and/or Services are supplied to PI from outside Australia, Supplier shall have sole responsibility for payment of all taxes, duties 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.
5. Supplier’s Product Warranties
- Product warranties. Supplier represents and warrants to PI that:
a. the Products will be manufactured with all due skill, competence, care and attention, consistent with standards reasonably recognized by the industry, and free from defects in workmanship and material;
b. for a period of 12 months from delivery in accordance with Section 2 (Warranty Period), the Products will be free from manufacturing defects;
c. it shall supply to PI all the Products ordered by PI under the Purchase Order;
d. the Products shall conform in all respects with the Specifications;
e. it shall comply with all labelling, packaging, handling and storage instructions;
f. the Products comply with all applicable laws and are of merchantable quality;
g. the 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;
h. the Products or their use do not infringe any intellectual property rights, privacy rights, or other rights of any third party.
- Remedy under Product warranties. Without limiting PI’s other remedies, where Supplier breaches a warranty set out in Section 5.1, the Supplier shall, at PI’s election:
a. replace or repair the non-confirming Products; or
b. issue a credit note for the replacement value of the Products and refund the amount paid by PI and all return costs in respect of those Products.
- Remedy Process – Notice. Within three (3) weeks of identifying a breach of a warranty set out in Section 5.1, PI shall deliver to the Supplier written notice to such effect (Warranty Notice) in which it sets out:
a. the non-compliance or defect;
b. the affected part number;
c. the quantity of Products or parts affected;
d. the applicable Purchase Order number.
- RMA and Return. Supplier shall deliver to PI a return material authorization (RMA) number within three (3) days of receiving from PI a Warranty Notice, following which:
a. PI shall be entitled to return to Supplier the Products which are the subject of the Warranty Notice; and
b. 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 PI in accordance with Section 5.2 and, in the case of replacements, bear all costs and expenses of and related to the delivery of returned Products from PI to Supplier and the delivery of replacement Products from Supplier to PI.
- Complaints. Supplier shall, within three (3) days of receipt of information of any complaint which relates to the Products, deliver to PI written notice to such effect. For complaints which the Supplier receives directly or of which PI deliversnotice to Supplier, Supplier must review and investigate the complaint within five (5) days of receipt. Supplier must notify PI (Attention: Quality Assurance) within twenty-four (24) hours regarding any report of serious injury or serious health risk. Supplier must provide assistance, without charge, to PI at its request to investigate and respond to such complaints.
6. Supplier’s Services Warranties
- Services warranties. Supplier represents and warrants that:
a. the Services will be performed with all due skill, competence, care and attention, consistent with standards reasonably recognized by the industry;
b. in performing the Services, Supplier will comply with all applicable laws and regulations; and
c. the performance of the Services and the use of the Deliverables in the manner intended will not infringe any intellectual property rights, privacy rights, or other rights of any third party.
- Remedy under Services warranties. Without limiting PI’s other remedies, where Supplier breaches a warranty set out in Section 6.1, the Supplier shall, at PI’s election:
a. reperform the Services;
b. pay the cost of an alternative supplier to reperform the Services; or
c. refund the amount paid by PI for the Services.
7. Quality standards, compliance and audits
- Code of Conduct. Supplier must comply with PI’s Supplier Code of Conduct, as updated from time to time. A copy of PI’s Supplier Code of Conduct is available here [PDF 90KB].
- ISO. Supplier 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 PI’s authorized representatives at mutually convenient times during normal business hours for audit purposes and shall take any reasonable actions required by PI to facilitate such audit. Supplier must take prompt steps to address any issues identified in the audit.
- Unannounced Audits. Supplier must permit PI 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 PI, relevant notified bodies, or any other regulatory authority in respect of the Products and/or Services, and shall provide support for Product specific audit at PI’s expense (which expenses are limited to out-of-pocket fees and expenses incurred by PI).
- Modern Slavery. Supplier must cooperate with and provide PI, when requested, information and assistance required for PI to comply with its obligations under the Modern Slavery Act 2018 (Cth). Supplier shall take reasonable steps to ensure it complies with relevant employment and human rights laws and shall promptly notify PI upon becoming aware of any actual, alleged or suspected material breach of this clause by Supplier, its personnel, or third party involved in the chain of production or provision of the Products.
- Reports. Supplier must provide such information as PI may request from time to time in relation to:
a. the Products;
b. the Services;
c. the Supplier and its Personnel, contractors and suppliers.
8. Intellectual Property
- IP Licence. Supplier hereby grants, and shall ensure that all applicable third parties shall grant, to PI a royalty-free, worldwide, perpetual, irrevocable, transferable licence to use, alter, maintain, repair, market, demonstrate, distribute, supply or otherwise dispose of the Products and any Deliverables and to permit PI’s distributors and customers to do so (IP Licence).
- Newly created IP. Supplier assigns to PI all existing and future copyright and other intellectual property rights in the Deliverables or otherwise created or arising out of the performance of the Services.
- Definition. “Confidential Information” of a party (Disclosing Party) means any information which has been communicated by the Disclosing Party to the other party (Recipient) in confidence, or which by its nature ought to be regarded as confidential, including but not limited to (i) the business, affairs, technical data, financial data, customers, clients, suppliers, plans, intentions, or market opportunities of the Disclosing Party; and (ii) the operations, processes, product information, know-how, designs, trade secrets or software of the Disclosing 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 Recipient by the Disclosing Partyin 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 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 PI’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 Products; 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 Products.
10. Insurance, Indemnity and Limitation of Liabilities
- Insurance. Supplier shall maintain at its own cost the following insurance policies:
a. 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;
b. professional indemnity insurance for not less than the amounts specified in the Purchase Order;
c. workers compensation insurance as required by law; and
d. such other insurance policies specified in the Purchase Order.
- Indemnity. Supplier indemnifies PI and PI’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 Supplier’s breach of any of the terms or conditions of this Agreement or Supplier’s negligence
11. 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:
a. the circumstances in question could not have been reasonably foreseen;
b. the party affected by Force Majeure takes all reasonable steps in good faith to mitigate the effects of Force Majeure; and
c. 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 Agreement by delivering notice to such effect to the affected party.
- Termination for cause. PI may terminate this Agreement by written notice effective immediately if:
a. Supplier becomes subject to any form of insolvency administration; or
b. Supplier commits a breach of this Agreement and fails to remedy that breach within 7 days of notice requiring it to do so.
- Termination for convenience. PI may terminate this Agreement and cancel any order for products and/or Services without cause by giving Supplier 14 days’written notice.
- Survival of sections. Sections 5, 6, 7, 8, 9 and 10 survive termination or expiry of this Agreement.
- Order of Precedence. Unless the parties expressly agree in writing otherwise, the Purchase Order Terms take precedence over any terms and conditions included in a Purchase Order to the extent of any inconsistency between them.
- No waiver. 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.
- Severability. 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.
- Nature of relationship. Nothing in this Agreement shall be deemed to constitute a partnership between the parties nor constitute one party the agent of the other party for any purpose.
- Governing law. 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.
- Variation. This Agreement may only be varied by agreement of the parties in writing.
- Assignment. Neither party may assign this Agreement or any right under this Agreement without the prior written consent of the other party.
- Entire Agreement. This Agreement constitutes the entire agreement between the parties in relation to its subject matter and supersedes all prior agreements, arrangements and understandings between the parties in relation to that subject matter.