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PURCHASE ORDER TERMS AND CONDITIONS

 

1. Definitions and Interpretation: In this Contract unless the contrary intention appears:

ABN means Australian Business Number;

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) as amended from time to time;

Contract means (in order of priority) the Purchase Order, these Purchase Order Terms and Conditions, any Trade Terms Agreement, any schedules and attachments to the Purchase Order, including the Specification;

End User means person designated in the Purchase Order that is a customer of OCTA and to whom the Supplier is to supply the Products directly to;

GST means any goods and services tax, value added tax or similar tax imposed on the sale or supply of goods, services and rights;

OCTA means Accumulate Loyalty Services Pty Ltd trading as “O.C Tanner | Accumulate” (ABN 38 085 529 979) and its related bodies corporate (as defined by the Corporations Act 2001 (Cth));

Personal Information has the meaning given in the Privacy Act 1988 (Cth);

Product means any goods and, or, services supplied under this Contract;

Purchase Order or PO means any document issued by OCTA for the supply of Product by the Supplier;

Product Safety Law means the product safety laws that apply to the supply of products or services under the Australian Consumer Law set out in Part 3-3 of Schedule 2 to the Competition and Consumer Act 2010 (Cth) as amended from time to time;

Specification means (in order of priority): (a) any description of or representation about the Products provided to OCTA and referred to in the Purchase Order; and (b) the Supplier’s published specifications for the Products;

Supplier means the party detailed in the Purchase Order from whom goods or services are ordered by this Contract;

Tax Invoice means an invoice regulated by GST laws;

Trade Terms Agreement means an agreement between the parties specifying any additional payment terms, currency, price change process, discounts and rebates associated with the supply of Products to End Users that has been agreed in writing by the parties; 

Any other capitalised word used in these Terms has the meaning given to it in the Purchase Order; and

Monetary references are references to Australian currency.

2. Contract Formation: A binding Contract between OCTA and the Supplier will come into existence on the earlier of the date the Supplier confirms acceptance of the Contract, or the Supplier commences delivery of any of the Products. OCTA hereby expressly objects to and rejects any such additional or different terms, and none of such terms will be deemed to be part of this Contract. 

3. Supply: The Supplier acknowledges that it is a supplier for the purposes of law in relation to the Product it supplies. Time is of the essence in relation to all Supplier obligations under this Contract. The Supplier acknowledges and agrees that Products supplied to OCTA may be supplied directly to an End User.

4. Delivery: The Supplier must deliver the Products to the delivery address detailed in the PO by the date detailed in the PO (if any) and in accordance with any delivery instructions and schedules. On delivery, the Supplier must obtain the name (printed) and signature of the OCTA employee (or third party designated by OCTA) that receives the Products.

5. Inspection and Acceptance: OCTA, its authorised agent or the End User has the right to inspect the Product and has the right to reject any Product that does not conform with the Contract (including any Specification). If the Products do not comply with the Contract, including the Specification, OCTA may terminate this Contract or require the Supplier to promptly modify or resupply the Products, at no additional cost to OCTA, so that they comply with the Contract, including the Specification. Execution of a delivery document or payment by OCTA does not constitute acceptance by OCTA.

6. Price: The prices are fixed and the total PO values include all levies, duties, taxes (including GST, unless expressly stated as being exclusive of GST), insurance, packaging and delivery costs. The total amount payable by OCTA under this Contract will not exceed: (a) the total PO value; or (b) if no total PO value is stated in the PO, the amount specifically authorised in writing by the Requestor. 

7. Payment: Each invoice must itemise the GST included in the prices, state the PO Number and be addressed to OCTA at the billing address specified in the PO. Unless otherwise agreed in a Trade Terms Agreement: (a) the Supplier will only invoice OCTA on the completion of the services or on or after the delivery of the goods; and (b) OCTA will pay a correctly rendered invoice (less any amounts due to OCTA from the Supplier) 45 days from the end of the month in which the invoice was dated. OCTA is entitled to withhold payment of any invoice to the extent that it relates to Products that do not meet the Contract, including the Specification.

8. Price Discounts and Rebates: OCTA is entitled to any price discount and, or, price rebate specified in a Trade Terms Agreement. Any such discount will be deducted from the price as agreed by the parties, that being by either: (a) OCTA in the PO; or (b) the Supplier in the invoice. Any such rebate will be paid by the Supplier to OCTA in accordance with the Trade Terms Agreement.

9. Goods and Services Tax: Where GST is applicable to the supply of the Product, the Supplier must ensure that any invoice or other request or demand for payment constitutes a Tax Invoice that will enable OCTA to claim tax credits in respect of supplies to which the invoice relates and acknowledges that no amount will be due and payable by OCTA in respect of any such supply unless OCTA has received from the Supplier such an invoice. If the PO nominates an amount of GST, this amount is an estimate only and should not be relied upon. The Supplier is responsible to ensure the invoice or other request or demand for payment specifies the correct amount of GST.

10. Withholding Tax: If required by the relevant withholding tax legislation or any Australian Taxation Office Public Ruling, OCTA will withhold an amount of tax from any payment it makes to the Supplier for a supply (including for the failure by the Supplier to quote the Supplier’s Australian Business Number (“ABN”) unless the Supplier provides OCTA with a written statement in a form approved by the Australian Taxation Office as to the reason for not quoting an ABN. See “Statement by a supplier not quoting an ABN” at www.ato.gov.au).

11. Risk and Title: Risk in the Products will pass to OCTA, a third party designated by OCTA in the PO or an End User designated by OCTA in the PO when the Products are delivered. Title in the Products (other than Product licensed under the IPR clause) will pass to either: (a) OCTA; or (b) an End User, as applicable, on the earlier of acceptance of or payment for the Products.

12. Cancellation: OCTA may cancel or reduce the quantity of a Product by notifying the Supplier: (a) before the relevant delivery date in the PO (if any); (b) if the Supplier fails to supply a Product by the delivery date in the PO (if any); or (c) if a delivery date is not specified in the PO, 30 days after the issue date of the PO. OCTA will not be liable for any amounts or expenses for cancelled Product.

13. Intellectual Property Rights (“IPR”): The Supplier assigns (now and in the future) to OCTA all IPR in any material created for OCTA in the supply of the Products. The Supplier grants OCTA (and its contractors) or an End User, as applicable, a non-exclusive paid up, royalty free, perpetual licence to use and copy the Products so that OCTA (and its contractors) or the End User, as applicable, can make full use of them. OCTA owns IPR in any modifications by OCTA to the Products.

14. Warranty: The Supplier warrants that: (a) all goods supplied by the Supplier are: (i) new and in good condition; (ii) compliant with all relevant Australian standards and industry codes; (iii) free from defects in design, materials and workmanship; (iv) of good and merchantable quality and fit for their intended purposes; and (v) compliant with the Specifications; (b) any services supplied by the Supplier will: (i) be supplied with the degree of skill, care and diligence that would be expected of a skilled professional experienced in providing the same or similar services; (ii) comply with all reasonable directions of OCTA; and (iii) comply with all OCTA’s conduct policies (as notified to the Supplier by OCTA from time to time) and relevant Australian standards and industry codes; (c) the Products and their use and supply will not breach any obligation of confidence or infringe any IPR of any person; and (d) it will comply with any obligation at law in relation to any consumer guarantees detailed in Australian Consumer Law including any return, replacement or refund of any Product.

15. Breach of Warranty: If the Supplier becomes aware, or OCTA notifies the Supplier, that a Product fails to comply with any of the warranties given under this Contract, the Supplier must, without prejudice to any other rights of OCTA: (a) in the case of the clause 14(a), during the 12 month period (or longer period as agreed) from the acceptance of the Product, fix any non-compliance; and (b) in the case of any other warranty provided under this Contract (except clause 14(d)), promptly (at OCTA’s option): (i) remedy that failure (including by replacing or resupplying the Product), (ii) provide to OCTA a full refund of the price paid for the Product (or in accordance with OCTA’s directions deduct the price paid for the Product from any amounts owing to the Supplier.  If the Supplier becomes aware, or OCTA or an End User notifies the Supplier, that a Product fails to comply with any of the warranties given under clause 14(d) for a consumer guarantee as detailed in Australian Consumer Law, the Supplier must, without prejudice to any other rights of OCTA or the End User, during the period of the consumer guarantee, fix any non-compliance in accordance with the requirements of the Australian Consumer Law by (and where permitted at its option) replace or repair the Non-Conforming Product, or refund OCTA any amounts paid to the Supplier in respect of the Non-Conforming Product (or in accordance with OCTA’s directions deduct the price paid for the Product from any amounts owing to the Supplier).

16. Product Related Issues: The Supplier must provide all reasonable assistance to OCTA in regards to any Product related obligation of OCTA to the End Users, including any return, replacement, refund, change of mind or product recall, provided OCTA advises the Supplier of any such obligation as soon as practicable. The Supplier must immediately notify OCTA if a Product: (a) ceases to be available; (b) ceases to comply with applicable Product Safety Law; or (c) is the subject of any interim or permanent ban or product recall.

17. Indemnity: The Supplier indemnifies OCTA against all losses and damages (on a full indemnity basis and whether incurred by or awarded against OCTA) that OCTA may sustain or incur as a result, whether directly or indirectly, of: (a) a claim that the Products or their use or supply breaches any obligation of confidence or infringes the IPR of any person; (b) a claim, demand, suit, action or proceeding by a third party arising from an act or omission of the Supplier in connection with this Contract whether negligent or not; (c) without limiting paragraph (b), any act or omission of the Supplier in connection with this Contract resulting in or contributing to (i) claims by any third party against OCTA in respect of personal injury or death, or (ii) loss of or damage to OCTA’s or a third party’s physical property; or (d) failure by the Supplier to comply with the requirements of the Contract.

18. Insurance: The Supplier must take out and maintain with a reputable insurer valid and enforceable insurance policies: (a) ‘Public and Product Liability’ insurance covering the Supplier and its Personnel against any liability to any party arising out of or in connection with this Contract for an insured amount of not less than A$10 million per accident or incident claim; (b) ‘Workers Compensation’ insurance covering the Supplier for any claim against it by any person employed by the Supplier who provides services in relation to this Contract (and ensure that each of its other Personnel have similar insurance) for an amount necessary to cover any potential liability under statute or at common law; and (c) ‘Property Insurance’ covering the Supplier for any loss or damage to any property used directly or indirectly in connection with the Products.

19. Assignment and Subcontracting: The Supplier must not assign the whole or any part of this Contract. The Supplier must not use any subcontractors for supply of the Products without OCTA’s prior written consent. If the Supplier uses a subcontractor, the Supplier remains liable for the subcontractor’s performance.

20. Termination: OCTA may terminate this Contract: (a) on one month’s notice without any liability for compensation and without being obliged to give any reason for so doing; or (b) immediately if the Supplier: (i) becomes insolvent or is petitioned in bankruptcy; (ii) being a company, a petition for winding up the company is presented; (iii) an order is made or an application is brought or a resolution is passed for its winding up; (iv) any step is taken to appoint a receiver or receiver and manager or administrator or liquidator to the Supplier; or (v) the Supplier makes any arrangement for the benefit of creditors; or (vi) the Supplier breaches any provision of this Contract. Any such termination by OCTA shall be without prejudice to any other of its rights. The failure by OCTA to exercise any right or remedy in relation to any specific default by the Supplier, including by terminating this Contract or any part thereof when such a right arises shall not constitute a waiver by OCTA of any of its rights pursuant to this Contract.

21. Entire Agreement: This Contract is the complete contract between OCTA and the Supplier in relation to the Products. No confirmation, shipment, delivery document, shrink-wrap licence or representation will vary this Contract.

22. Confidentiality: This Contract and any information which the Supplier obtains from OCTA relating to this Contract (whether in writing or otherwise) is OCTA’s confidential information unless it is: (a) public knowledge at the time it is obtained by the Supplier, or (b) in the Supplier’s lawful possession prior to being obtained from OCTA. The Supplier must keep OCTA’s confidential information confidential, safe and secure, not disclose it to any person (except personnel of the Supplier who have a need to know) and return it when it has performed all of the work under this Contract or this Contract terminates or expires. The Supplier may not make any public statement about this Contract unless it has first obtained written consent from OCTA.

23. Privacy: The Supplier must comply with the Privacy Act 1988 (Cth) (the “Privacy Act”) and any other applicable privacy laws and any reasonable instruction of OCTA, including the OCTA privacy policy, in respect of any Personal Information that it obtains related to this Contract, and must ensure that any Supplier’s subcontractors (including couriers), comply with the Privacy Act and any reasonable instruction of OCTA in respect of any Personal Information the Supplier provides to them related to this Contract. The Supplier and any Supplier’s subcontractors (including couriers) are permitted to use Personal Information disclosed by OCTA only for the purposes of this agreement, and in doing so Personal Information must be: (i) secured, safe guarded from damage, loss or unauthorised disclosure; (ii) not disclosed overseas without the prior written approval of OCTA; and (iii) destroyed or de-identified when it is no longer required. In the event of an eligible data breach (as that term is defined in the Privacy Act) concerning Personal Information disclosed by OCTA, Supplier will notify OCTA as soon as practicable. In the event of breach of this clause the Supplier will notify OCTA, in writing, as soon as practicable. The Supplier indemnifies OCTA for any failure to comply with this clause. OCTA warrants that any disclosure of Personal Information by it for the purposes of this Contract is in accordance with Privacy Act. To the extent Supplier receives from OCTA what is considered “personal data” subject to the EU General Data Protection Regulation (“GDPR”), Supplier agrees to: (i) not engage another processor without OCTA’s prior consent; (ii) only process personal data on documented instructions from OCTA; (iii) ensure that persons authorized to process personal data are under appropriate obligations of confidentiality; (iv) take all measures required by Article 32 of GDPR; (v) assist OCTA (insofar as possible and taking into account the nature of the processing) in responding to data subject rights set forth in GDPR; (vi) refer all data subject rights requests to OCTA; (vii) assist OCTA with its compliance with Articles 32 through 36 of GDPR (taking into account the nature of the processing); (viii) at the choice of OCTA, delete or return all personal data upon termination of this Contract; and (ix) make available to OCTA all information necessary to demonstrate compliance with GDPR and to contribute to audits as deemed necessary by OCTA.

24. Compliance with Law: The Supplier must comply with all relevant legislation and regulations in the performance of this Contract. The Supplier warrants that its supply of Products is in accordance with all contractual obligations and does not infringe on the rights of any other party. 

25. Governing Law: The laws of State of Victoria apply to this Contract and the parties submit to the exclusive jurisdiction of the courts of that State.

26. Health and Safety and Behaviour at OCTA Sites: The Supplier must carry out its obligations under this Contract in a way that is safe, ethical and without risk to the health of its employees and contractors, OCTA’s employees and contractors and any person who may come into contact with the Products. The Supplier must prepare all necessary documents recording the procedures and policies it will employ to ensure it meets its obligations under this clause and must make all such documents available to OCTA on request. OCTA may suspend or terminate this Contract if OCTA considers that the Supplier’s policies, procedures or documents are inadequate to meet the obligations of this clause. The Supplier must comply with the requirements of the O.C. Tanner legal compliance disclosure, a copy of which is available at www.octanner.com/au/legal. The Supplier acknowledges it has reviewed the disclosure. 

 

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