Australian Purchase Order Terms & Conditions
Tribe Technology Pty Ltd (TRIBETECH) – TERMS AND CONDITIONS OF PURCHASE ORDER
1.1. The clauses set out below form the terms and conditions under which goods ordered on the form (as specified on the front of this Purchase Order) are to be supplied by the Supplier to TRIBETECH.
1.2. The goods shall be supplied and delivered in the manner and at the time stated in, and shall otherwise conform in all respects, to the Purchase Order.
1.3.1. Contract means the Contract formed by the Supplier’s acceptance of the Purchase Order including the Terms and Conditions, as specified on the Purchase Order.
1.3.2. Deliverables means the completion of the delivery of the goods, by the Supplier, in accordance with these terms and conditions of Purchase Order and includes the delivery of all accompanying materials and documentation.
1.3.3. Goods means all goods, works, services, chattels, plant and equipment and the like referred to in this Purchase Order, together with any associated documentation.
1.3.4. Intellectual Property means all rights resulting from intellectual activity whether capable of protections by statute, common law or in equity and including copyright, discoveries, inventions, patent rights, registered and unregistered trademarks, design rights, circuit layouts and plant varieties and all rights and interests of a like nature including but not limited to methods and techniques, together with any documentation relating to such rights and interests.
1.3.5. Purchase Order means the order on the form accompanying these terms and conditions as referred to in clause 1.1.
1.3.6. TRIBETECH means Tribe Technology Pty Ltd. (the Purchaser).
1.3.7. Supplier means the person/s, partnership, company or corporation from whom the goods have been ordered (as specified on the Purchase Order) and shall mean any person/s that, for the purposes of this Contract, supplies any goods directly to the Supplier or indirectly to the Supplier through another person and shall include all employees, subcontractors, agents and third parties who may represent the Supplier.
1.3.8. Standards means any standards or codes issued from time to time by industry, national or international standards, and any other applicable standards and codes specifically referred to in the Purchase Order applicable to the goods.
2. ACCEPTANCE OF PURCHASE ORDER INCLUDING TERMS
2.1. This Purchase Order, bearing an order number, is the only form which will be recognised by TRIBETECH as authority for charging goods to its account and supersedes all previous communications and negotiations.
2.2. These Purchase Order terms and conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. No terms or conditions stated by the Supplier, in quotations, account/credit applications or by accepting or acknowledging this Purchase Order, shall be binding upon TRIBETECH unless accepted in writing by TRIBETECH.
2.3. The Purchase Order constitutes an offer by TRIBETECH to purchase the goods in accordance with these Purchase Order terms and conditions. The commencement of supply of any goods, by the Supplier, will constitute acceptance of the Purchase Order terms and conditions by the Supplier.
2.4. Unless otherwise stated, the price on the Purchase Order (in Australian Dollars) is a firm price and is not subject to rise and fall. All prices quoted in the Purchase Order shall include, but not limited to, all taxes, charges, duties, packaging, use of supplied pallets or containers, certification, testing, insurance, tariffs, delivery and shall not be increased, unless agreed in writing by TRIBETECH.
3. TAX INVOICE AND PAYMENT
3.1. After completing delivery of all goods referred to in the Purchase Order, the Supplier is to provide a Tax Invoice which satisfies the requirements of the Goods and Services Tax Act (GST) 1999 (if the supply is a ‘taxable supply’ under the GST Act), as amended from time to time.
3.2. A Tax Invoice must only be applicable to one Purchase Order.
3.3. Terms of Payment – 30 days from the end of month of the Invoice Date.
4. DELIVERY (INCL. HAZARDOUS AND/OR DANGEROUS GOODS)
4.1. Except where the Purchase Order provides otherwise, the Supplier is responsible for ensuring that the goods are properly marked, packed and delivered by the time or times, and to the location/s specified, on the Purchase Order. Goods are to be supplied and delivered in accordance with the requirements of all relevant laws and standards, in accordance with any shelf life or preservation requirements and to avoid damage during storage, transit, delivery, loading or unloading.
4.2. Time is of the essence in the Supplier’s performance of the contract. The Supplier’s failure to perform any of its obligations under the Contract on or before the time specified in the Contract gives TRIBETECH the right, in addition to any other right, to cause the Supplier to do whatever is necessary to expedite the provision of the goods at the Supplier’s expense.
4.3. Extension of time may be granted at the sole discretion of TRIBETECH. If any extension of time in respect of the Purchase Order is granted by TRIBETECH, time will remain of the essence in respect of the extended time.
4.4. If the Supplier is unable to make delivery, or as specified in clauses 4.1 – 4.3, TRIBETECH will, unless the delay results from TRIBETECH’s own act of omission, be at liberty to either:
4.4.1. Cancel the Purchase Order without prejudice to any right or remedy which has occurred or may thereafter accrue to TRIBETECH; or
4.4.2. To make special arrangements for transport to TRIBETECH’s site at which the goods are required; and TRIBETECH may deduct from any amount payable to the Supplier the transport and related expenses incurred over and above those which would have incurred had delivery not been delayed.
4.5. All Suppliers invoices, packing slips, delivery dockets and correspondence must clearly show the Purchase Order Number.
4.6. Unless otherwise agreed in writing, the Supplier shall not make partial deliveries. If the parties have agreed that partial deliveries will be made, then for the purposes of these terms and conditions of purchase, the term delivery includes a partial delivery.
4.7. In the event of late delivery of goods, the Supplier shall be liable for damages incurred by TRIBETECH howsoever arising from such late delivery including but not limited to damages or costs assessed against TRIBETECH by other parties.
4.8. TRIBETECH shall be entitled to reject the goods or any of them, notwithstanding that property may have passed, if the correct quantity is not delivered or the goods are not delivered within the time specified in the Purchase Order.
4.9. Prior to delivering any goods, including but not limited to Dangerous and/or Hazardous Goods, onto TRIBETECH premises, the Supplier must provide copies (manual and electronic) of all relevant Material Safety Data Sheets (MSDS) which must comply with all relevant laws and standards.
4.10. Dangerous and/or Hazardous Goods are to be documented, handled, transported and stored in accordance with all relevant laws and standards.
All specifications, plans, drawings, blueprints, materials, samples and other information or articles furnished or disclosed at any time in connection with the Purchase Order, are confidential to TRIBETECH and the Supplier. Such information and articles shall be used solely to complete the Contract hereby constituted or any other Contract between TRIBETECH and the Supplier and shall remain the property of the furnishing/disclosing party, and to be returned to the furnishing/disclosing party on demand.
6. INTELLECTUAL PROPERTY
6.1. Both the Supplier and TRIBETECH agree that it will not have any claim, ownership or interest in the other party’s Background Intellectual Property. For the purposes of this clause the term ‘Background Intellectual Property’ shall mean any Intellectual Property owned by a party at the date of the acceptance of the Purchase Order.
6.2 Any new Intellectual Property Rights created in connection with:
(a) the Deliverables; and
(b) any Improvements to the specifications, plans, designs, drawings, blueprints, materials, samples and other information furnished by TRIBETECH producedby the Supplier (Supplier Improvements),
will be owned by and vest in TRIBETECH from the date of their creation.
6.3. If any Background Intellectual Property subsists in the goods:
6.3.1. the Supplier grants TRIBETECH a non-exclusive, irrevocable, perpetual, worldwide, transferable and royalty-free licence to use any of the Supplier’s Background Intellectual Property for the purpose of using or exploiting the goods acquired in any Purchase Order, to sub-licence the rights to any of TRIBETECH’s customers or other third parties in the resupply of the goods to enable a customer or third party to make full use of the goods or otherwise use or exploit the goods in connection with TRIBETECH’s business; and
6.3.2. TRIBETECH grants the Supplier a non-exclusive, royalty-free, non-sub-licensable licence to use any of TRIBETECH’s Background Intellectual Property for the sole purpose of complying with this Agreement and any Purchase Order.
6.4. The Supplier warrants that:
6.4.1. the use (including the resale) of the goods delivered or supplied to TRIBETECH or any third party does not infringe the Intellectual Property rights or other rights of any third party;
6.4.2. it is the owner of its Background Intellectual Property; and
6.4.3. it will not seek to challenge, object, oppose, seek to revoke, remove or invalidate TRIBETECH’s Background Intellectual Property, prevent TRIBETECH from seeking to register or use TRIBETECH’s Background Intellectual Property or encourage or assist any person to do any of these things.
6.5. The Supplier shall indemnify TRIBETECH against all and any claim or proceeding that is made or commenced and any liability, loss, damage or expense (including legal costs on an indemnity basis) whether incurred directly or indirectly as a result of TRIBETECH’s use or resale of the goods, or a claim that TRIBETECH infringed the Intellectual Property rights of a third party and the Supplier shall compensate TRIBETECH for all damage resulting therefrom.
6.6. All drawings, materials and other auxiliary materials provided by TRIBETECH or made or purchased by the Supplier at the expense of TRIBETECH, are the property of TRIBETECH and may at all times be claimed by TRIBETECH without notice. The Supplier shall administer all these auxiliary materials and keep them in good condition at its own expense and risk. It shall not use them for or allow them to be used by third parties except with the written authorisation of TRIBETECH.
7. TITLE AND RISK
Unless otherwise stated in the Purchase Order, title to and risk in the goods does not pass to TRIBETECH until TRIBETECH takes delivery of the goods.
8. INDEMNITY AND INSURANCE
8.1. The Supplier indemnifies TRIBETECH and will keep TRIBETECH and its Personnel indemnified from and against all claims and losses (including legal costs on a full indemnity basis), that the other may suffer or incur as a result of or in connection with any breach of these terms and conditions, including any warranties, or any act or error or omission of the Supplier, in relation to the supply of goods to TRIBETECH.
8.2. The Supplier acknowledges that it enters any TRIBETECH sites at the Supplier’s own risk. The Supplier must ensure that all personnel are also aware that they enter TRIBETECH sites at their own risk.
8.3. The Supplier will affect and maintain in force at its own expense, with a reputable insurance company at least the following insurance:
8.3.1. Worker’s Compensation Insurance in accordance with the laws of the State or Territory in which the work is being done together with insurance in respect of any common law liability of an employer to an employee.
8.3.2. Public Liability and Product Liability Insurance with insured limits in respect of bodily injury and property damage of at least $10million in respect of each and every claim.
8.3.3. Professional Indemnity of at least $5million in respect of each and every claim (as applicable).
8.4 The Supplier shall, on TECHTRIBE’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
9. QUALITY AND INSPECTION
9.1. The Supplier shall operate and maintain an effective Quality Management System appropriate to the type of goods ordered and/or in accordance with that specified in the Purchase Order. If required the Supplier shall provide TRIBETECH, its principal or authorised representative, access to the Supplier’s premises or working area for the purpose of verifying quality or carrying out inspections or audits.
9.2. All goods supplied, or used in conjunction with the supply, and including all component parts, must be safe, new, free of defects or faults, are of merchantable quality and are suitable for the purpose for which they were ordered.
9.3. All goods must comply with all applicable standards and all requirements stated, referenced or supplied as part of this Purchase Order,
9.4. TRIBETECH shall, at it’s own cost and at all times have the right of access to the premises of the Supplier, for the purpose of inspecting and testing goods to be supplied under this Purchase Order, and TRIBETECH shall at all times have the authority to inspect and reject all or any goods thereof during manufacture and after delivery, whether paid for in full or part, which do not conform to the requirements of this Purchase Order or found to be unsatisfactory, defective, or of inferior quality or workmanship or fails to meet the specifications or any other requirements of the Purchase Order or other supplied relevant documents, specifications etc.. Any such inspection shall not relieve the Supplier of any obligations contained in the Purchase Order. Goods rejected will be replaced or rectified, as directed by TRIBETECH, at no additional cost to TRIBETECH.
9.5. Whether or not TRIBETECH rejects the goods or any of them TRIBETECH shall be entitled to damages for any actual loss, including loss of goodwill, sustained by reason of the failure of the goods to comply precisely with all specifications (whether mechanical or otherwise) or to an approved sample or by any reason that such goods are not of merchantable quality, or are not manufactured from materials supplied by TRIBETECH (if any), or reasonably fit for any purpose which TRIBETECH has made known to the Supplier or for which the Supplier represented the goods would be fit.
9.6. If it is found (regardless of the results of earlier inspections) that the Supplier is in breach of this clause, TRIBETECH may, at its option:
9.6.1. require the Supplier to repair the goods or make good what is missing at the Supplier’s expense; or
9.6.2. reject the goods and require the Supplier to replace the goods at the Supplier’s expense; or
9.6.3. reject the goods and require the Supplier to remove the goods from TRIBETECH’s Site at the Supplier’s expense and refund any, all or part of monies already paid by the TRIBETECH.
9.7. The exercise by TRIBETECH of any of the options specified in clause 9.6 is without prejudice to TRIBETECH’s other rights under these terms and conditions of Purchase Order.
9.8. In all cases where the Supplier fails to perform its obligation under this clause, TRIBETECH shall have the right to carry out the repair or replacement of the goods itself or to have the same carried out by a third party, the additional cost shall be a debt due and recoverable from the Supplier. The exercise of such a right shall not release the Supplier from its obligations under these terms and conditions of Purchase Order.
10. SITE WORKS
10.1. The Supplier must, when entering any TRIBETECH site, comply with the relevant site procedures and policies. Site and area specific inductions must be completed, as required, prior to entering each Site. It is the responsibility of TRIBETECH to provide the Supplier with each site’s procedures and policies.
10.2. All reasonable costs associated with the requirements of subclause 10.1 are to be borne by TRIBETECH.
10.3. The Supplier shall supply all labour, tools, equipment and materials or other products necessary to complete the supply of the goods and ensure they are all kept secure from theft or damage and comply with any relevant law, standard, manufacturer or owner specifications, government authorisation and site safety requirements.
10.4. The Supplier must not unreasonably interfere with any of the activities of TRIBETECH or any other persons at any site and shall ensure that all rubbish and other debris the supplier creates is removed from the site and that those areas of the site the Supplier reasonably controls are reinstated back to their condition prior to the works commencing, failing which a debt is due to TRIBETECH from the Supplier for any costs incurred to ensure the site is reinstated back to the condition prior to the works commencing.
10.5. The Supplier must not cause pollution, contamination or environmental harm to occur in, on or under the works sites or surrounding land.
10.6. TRIBETECH may direct the Supplier to permanently remove from site any person who, in the opinion of TRIBETECH, is deemed to be incompetent, negligent, or engaging in misconduct.
10.7. Site working days and hours will only be as approved by TRIBETECH, prior to the acceptance of the Purchase Order.
11.1 TRIBETECH may direct the Supplier to perform a variation. All such directions must be in writing and specify that they direct a variation.
11.2 If the Supplier considers any direction requires a variation but the direction is not in writing or does not specify that it directs a variation, then the Supplier must promptly notify TRIBETECH in writing setting out why the Supplier considers the direction requires a variation. In that case the Supplier must not comply with the direction unless the Supplier receives a written direction specifying a variation.
11.3 The fee must be adjusted for each variation. Unless the amount of the adjustment is agreed, the adjustment must be calculated by TRIBETECH on the basis of applicable rates or fees in this Contract or, if none, then reasonable rates or fees.
11.4 The Supplier is not obliged to perform a variation that is outside the general scope of the services.
12.1. The Supplier shall not assign or sub-let the whole or any portion of the Purchase Order without the written consent of TRIBETECH, whether or not the Supplier shall have sub-let any portion of the Purchase Order, the Supplier shall be wholly responsible for the Purchase Order at all times.
12.2. The Supplier may not assign any of its rights and obligations under the Purchase Order to third parties without the prior written permission of TRIBETECH.
12.3. The Supplier may not contract out the performance of any of its obligations under the Purchase Order to third parties without the prior written permission of TRIBETECH.
13.1. TRIBETECH may terminate this purchase order If the Supplier:
13.1.1. is in substantial breach of any term of these terms and conditions of Purchase Order;
13.1.2. being an individual, commits an act of bankruptcy, becomes a bankrupt, executes a deed of assignment or deed of arrangement under Part 10 of the Bankruptcy Act 1966 as amended or a creditor accepts a composition under that Act or any analogous overseas law;
13.1.3. being a corporation (other than for the purpose of a reconstruction or amalgamation) commits an act of insolvency, is the subject of a compromise or arrangement with its creditors, or in respect of which an administrator or a provisional liquidator or liquidator is appointed, TRIBETECH can, without prejudice to any other rights and remedies it has under these terms and conditions of purchase, terminate the Agreement in whole or part by notice in writing to the Supplier.
13.2. In addition to TRIBETECH’S other right to cancel or terminate this Purchase Order, TRIBETECH may, at its option, immediately terminate all or any part of this Purchase Order, at any time and for any reason, by giving written notice to the Supplier. Upon such termination, the Supplier is to stop work to the extent required by the written notice and TRIBETECH’s obligation shall be to pay the supplier:
(a) the applicable portion of the fee for the services performed prior to the date of termination;
(b) all disbursements incurred by the Supplier prior to the date of the termination which would have been payable had this Contract not been terminated; and
(c) any costs and expenses reasonably incurred by the Supplier by reason of termination.
If the Supplier becomes insolvent or (being a Company) makes an arrangement with its creditors or has a receiver appointed or commences to be wound up (other than for the purposes of amalgamation or reconstruction), TRIBETECH may, without prejudice to any other rights, terminate the Contract by written notice to the Supplier or any person in whom the Contract may have become vested.
15.1. The Supplier warrants that the goods conform to the Purchase Order.
15.2. Without limiting clauses 9 and 15.1, the Supplier warrants that the goods:
15.2.1. comply with the drawings, specifications and any other references set out in the Purchase Order;
15.2.2. are unencumbered by any rights of third parties and are not the subject of any registered security interest within the meaning of the Personal Properties Securities Act 2009 granted by the Supplier to any third party;
15.2.3. bear and are accompanied by all information and instructions which are necessary for their correct and safe use, and the goods are provided with and accompanied by all documentation requested by TRIBETECH, regardless of whether that documentation was requested by TRIBETECH before, during or after the Purchase Order was issued.
15.3. The Supplier warrants that TRIBETECH acquires the unencumbered ownership of the goods upon completion of delivery.
15.4. Without limiting clauses 15.1 to 15.3, the Supplier warrants that all information which the Supplier has provided to TRIBETECH in relation to the goods is true and accurate.
15.5. The Supplier must if applicable provide all usual manufacturers’, importer’s and any applicable third party warranties in respect of the goods.
15.6. If the Supplier does not provide any warranties under clause 15.5, the Supplier must if applicable obtain for the benefit of TRIBETECH all usual manufacturers’, importer’s and any applicable third party warranties in respect of the goods.
15.7. After TRIBETECH’s acceptance of the goods, the Supplier agrees to promptly replace and reinstall any defective goods (including parts or units) at no cost to TRIBETECH (including without limitation labour, material, freight and delivery charges) or re-supply free of charge any goods, as appropriate and only as agreed by TRIBETECH, as per the usual manufacturer’s, importer’s and any applicable third party warranties, or if not applicable, for a minimum period of twelve (12) months unless otherwise specified by TRIBETECH.
16. GOVERNING LAW
The legal relationship between TRIBETECH and the Supplier is governed exclusively by the laws of the Commonwealth of Australia and the State of Western Australia.