Braemac General Terms & Conditions
General Terms & Conditions of Purchase
Applicable to Purchase Orders issued by Braemac Pty Ltd
Agreement means the agreement to purchase Goods as evidenced by these general terms and conditions and the terms of any Order.
Corporations Act means the Corporations Act 2001 (Cth), as amended.
Delivery Date means the date the Goods will be despatched to the Delivery Point as specified by Braemac.
Delivery Point means the place where the Goods are to be delivered as specified by Braemac.
Goods means the goods or services purchased by Braemac from the Supplier as specified by Braemac in the Order.
GST has the meaning given to that term in the GST Law.
GST Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property Rights means all present and future rights throughout the world conferred by statute, common law or equity in or in relation to inventions, discoveries, innovations, know how, technical information and data, prototypes, processes, improvements, patent rights, circuitry, drawings, plans, specifications, copyright, trade mark rights, design rights, plant variety rights and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether or not registrable, registered, or patentable. These include all rights in all applications to register these rights, all renewals and extensions of these rights and all rights in the nature of these rights.
Braemac means Braemac Pty Ltd (ABN 71 332 650 026) and its successors, assigns and related corporations.
Order means a Purchase Order issued by Braemac to the Supplier.
Purchase means the purchase of Goods by Braemac from the Supplier.
Purchase Order means a written document issued by Braemac to the Supplier, containing the Delivery Date, Delivery Point, the Goods to be purchased and the price for Goods to be purchased.
RFQ means a request for quotation.
State means the state of NSW in the Commonwealth of Australia.
1. SUPPLY OF GOODS
1.1 Braemac and the Supplier agree that unless otherwise agreed in writing these terms and conditions apply to all purchases of Goods by Braemac from the Supplier .
1.2 In the event of any inconsistency between these terms and conditions and terms in any document of the Supplier. These terms and conditions will prevail unless otherwise agreed in writing by Braemac.
1.3 If Braemac places an Order with the Supplier for Goods or enters into a contract with the Supplier or Braemac makes any payment to the Supplier in respect of the Goods, the Supplier is taken to have accepted the supply of such Goods on these terms and conditions
1.4 To the extent the Supplier's terms and conditions are supplied with the Goods (including as printed on consignment notes or other documents) those terms and conditions will be of no legal effect and will not constitute part of any agreement to supply the Goods.
2. COUNTERFEIT GOODS PREVENTION
2.1 Supplier agrees and must ensure that no counterfeit Goods or components are supplied to Braemac through the implementation of policies that include prevention, detection, and risk mitigation methods to protect against the use of counterfeit Goods.
2.2 If the Supplier becomes aware or suspects that it has supplied counterfeit Goods or components , it must immediately notify Braemac. If the Goods supplied are, or include, counterfeit components, the Supplier must promptly investigate, analyse and report in writing to Braemac whether such counterfeit components should be replaced with genuine components conforming to the requirements of the Order, or whether an alternative solution is recommended to meet the Order requirements at Supplier’s sole expense. The parties must then agree upon the appropriate course of action acting in good faith However if no agreement is reached Braemac is entitled to reject the Goods and the Supplier must within 30 days of notice of rejection refund to Braemac any moneys paid to the Supplier in respect of those Goods.
2.3 The rights conferred on Braemac by Clause 12 also apply to counterfeit Goods.
3. REQUEST FOR QUOTATIONS AND ORDERS
3.1 Purchase Orders: If Braemac issues a Purchase Order and does not, within 24 hours of having done so, receive written notification from the Supplier that the Supplier is unable to supply the Goods according to the Purchase Order , the Supplier will be deemed to have accepted the Purchase Order.
3.2 Request for Quotation: If Braemac issues the Supplier with an RFQ, the RFQ will not of itself constitute an offer to purchase by Braemac and Braemac may withdraw or alter the RFQ without notice. All responses to RFQs provided by the Supplier and received by Braemac in Braemac's standard form will constitute a valid quotation and offer for the supply of the Goods (Supplier’s Offer). For the avoidance of doubt, the Supplier’s Offer does not constitute an acceptance by Braemac of the Supplier’s Offer.
4. CANCELLATION AND MODIFICATION OF ORDERS
Braemac may cancel without penalty:
4.1 the undelivered portion of any Purchase Order upon written notice of cancellation to Supplier. Upon receipt of notice of cancellation, Supplier must immediately stop work on the undelivered portion of the affected Purchase Order and make no further commitments for materials or services to complete such affected Purchase Order.
4.2 orders for Goods where the Supplier has failed to supply the Goods in whole or part by the Delivery Date and in accordance with clause 8.
5. PRICE AND PAYMENT
5.1 Unless Braemac consents in writing, Orders may not be invoiced at prices higher than that in the Order.
5.2 Save in the event of breach by the Supplier of these terms and conditions or the delivery of Goods by the Supplier that are not in accordance with the Order or are not of merchantable quality or fit for purpose, payment for the Goods will be made by Braemac in accordance with the agreed trading terms.
5.3 If the Supplier breaches the Agreement, in a material respect Braemac may by notice to the Supplier reject the Goods and the Supplier must refund to Braemac any monies paid in respect of the Goods within 30 days of notification of breach.
6.1 Unless otherwise stated, the price for the Goods is GST inclusive.
6.2 If the price is stated to be exclusive of GST then in addition to the price for the Goods, Braemac must pay to the Supplier an amount equal to any GST the Supplier must pay in respect of the supply of the Goods.
7. PACKING, LABELLING AND SHIPPING
The Supplier covenants and agrees with Braemac that:
7.1 all Goods must be properly packed to prevent damage or deterioration and, in such manner, as will obtain the lowest transportation rates;
7.2 the Supplier must be responsible for all charges by way of preparation, crating, dunnage and other costs unless separately stated in this Agreement;
7.3 all consignments must be clearly marked with Braemac's order reference and name;
7.4 each consignment must be issued with a packing slip which must clearly state Braemac's order number, the type of goods, quantities and product name; and
7.5 the shipment of Goods to Braemac is deemed to be acceptance of these terms and conditions.
8. DELIVERY OF GOODS
8.1 The Supplier must deliver the Goods to Braemac on the Delivery Date and in accordance with the delivery terms specified in the Order.
8.2 All costs of shipping the Goods to the Delivery Point will be to the Supplier's account unless otherwise stated in the Order.
8.3 If the Supplier does not supply the Goods at the Delivery Point on the Delivery Date, Braemac may, in addition to any other remedy:
a) obtain those Goods from another source;
b) refuse to accept the late delivery of those Goods, and will not be liable for any payment for those Goods or any other penalty
c) at its election, accept or reject partial deliveries.
d) require the Supplier to ship the Goods via air (where the context requires) or other expeditious route to minimise delay in delivery, and the Supplier must bear all costs occasioned thereby; and/or
e) treat such default as a repudiation by the Supplier and accept such repudiation and terminate the agreement for the supply of those Goods by notice in writing whereupon Braemac's obligations to the Supplier shall terminate absolutely.
9. INSPECTION AND RETURN
9.1 Notwithstanding any prior payment, all Goods are subject to inspection and acceptance by Braemac within a reasonable time after delivery at the Delivery Point.
9.2 If the Supplier delivers Goods to Braemac that Braemac considers in its sole discretion:
a) do not match the description, specifications or quantity of the Goods ordered;
b) are not fit for the purpose specified by Braemac;
c) breach any of the warranties given in clause 11; or
d) are not of acceptable quality, then the Goods will not be taken to be delivered for the purposes of clause 8.
10. TITLE AND RISK
10.1 Title in Goods will pass to Braemac at the time of delivery to the Delivery Point. Risk of damage or loss of the Goods passes to Braemac at such time as the Goods are delivered to the Delivery Point and Braemac has completed its inspection of the Goods and has accepted the Goods in accordance with clause 9. Until that time, the Goods remain at the risk of the Supplier.
11.1 The Supplier acknowledges that where the supply of Goods are “consumer” supplies, under applicable State, Territory and Commonwealth law(s) (including, without limitation, the Competition and Consumer Act 2010 (Cth)) certain statutory express and implied guarantees and warranties will be implied into this Agreement (Non- Excluded Guarantees).
11.2 The Supplier acknowledges that nothing in this Agreement purports to modify or exclude the Non-Excluded Guarantees.
11.3 In addition to the Non-Excluded Guarantees, the Supplier agrees that the Goods must :
a) Be in compliance with any applicable laws for the packaging, promotion, distribution, storage, sale, leasing or hire of the Goods in the Commonwealth of Australia;
b) Be in conformity with the specifications, drawing samples or other descriptions furnished or specified by Braemac; and
c) not infringe the Intellectual Property Rights of any third party.
12. SUPPLIER LIABILITIES
12.1 Subject to clause 11 and to the extent permitted by law, the liability of the Supplier and its employees or agents for a breach of any term of the Agreement (including the supply of counterfeit Goods or components) and any warranty or liability implied or otherwise, is limited, at Braemac's option, to:
a) for a major failure, Braemac is entitled to a replacement or refund for the Goods and compensation for any reasonably foreseeable damage;
b) the replacement of the Goods or the supply of equivalent Goods;
c) the repair of the Goods;
d) the payment of the costs of replacing the Goods or of acquiring equivalent goods; or
e) the payment of the cost of having the Goods repaired.
12.2 Notwithstanding clause 12.1, the Supplier is liable for damages and losses incurred by Braemac (and users of the Goods) in connection with a demand, action, arbitration or other proceeding, arising directly or indirectly as a result of or in connection with:
a) a breach by the Supplier of any representation or warranty or guarantee provided herein or implied by law;
b) a breach or non-performance of any obligation of the Supplier under these terms and conditions, whether express or implied; and
c) a claim that the Goods supplied to Braemac infringe any Intellectual Property Rights of a third party.
d) The Goods do not conform to specification as either published or provided to Braemac or agreed to with Braemac or specified on Braemac’s Purchase Order.
12.3 The Supplier is liable for all legal costs and other expenses, on a full indemnity basis, incurred by Braemac in connection with matters referred to in clause 12.2.
12.4 The provider of the warranties under these terms and conditions is the Supplier.
12.5 Other than as expressly provided for in this clause 12 and subject to the limitations in clause 11, Braemac, its contractors and/or agents will not be liable for any loss or damage (including consequential loss or damage, which includes without limitation, loss of profit and loss of revenue) suffered in connection with the Goods except in circumstances where such loss or damage is due to the gross negligence of Braemac, its contractors and/or agents.
13. SUPPLIER INDEMNITY
13.1 Subject to clauses 11 and 12, the Supplier indemnifies Braemac from every liability, loss, damage, cost or expense directly or indirectly incurred or suffered by Braemac that is caused by or contributed to by any of the following:
a) Braemac' compliance with any of the Supplier's instructions about the Goods;
b) the Supplier's or its employees' failure (or any third party associated with its failure) to:
(i) adequately provide safety information relating to the Goods;
(ii) comply with any laws relevant to providing the Goods;
(iii) take any reasonable precaution to bring to the attention of any potential users the attention of any potential users of the Goods any dangers associated with the Goods;
(iv) take any reasonable precaution to detect any matters to which Braemac may become liable in any way (for example, under the Competition and Consumer Act);
(v) provide correct information to Braemac; and
(vi) use and maintain the Goods prior to delivery to Braemac in accordance with the manufacturer's instructions and or any other written materials supplied with the Goods relating to the storage, installation and operation of the Goods.
c) any negligence or breach of duty by the Supplier or any breach by any third party of these terms and conditions;
d) any workmanship or procedure performed by the Supplier or a third party in connection with the Goods; and
e) any misuse, neglect or alteration by the Supplier, its agents, its employees or any third party of the property of Braemac in connection with supplying the Goods.
14. INTELLECTUAL PROPERTY
14.1 Braemac grants to the Supplier a non-exclusive licence to use its Intellectual Property Rights for the sole purpose of fulfilling Orders in accordance with these terms and conditions. The Supplier acknowledges that there is no transfer of title, interest or ownership to the Supplier of any Intellectual Property Rights in the Intellectual Property Rights of Braemac.
15. QUALITY ASSURANCE
15.1 Upon request by Braemac, the Supplier must provide Braemac and its nominees with access to the Supplier's premises to undertake quality audits and quality surveillance as defined in AS/NZ ISO 9001 of the Supplier's quality system and/or the production processes related to the Supplies.
16.1 The Supplier must procure and maintain such insurances and, on such terms, and conditions as a prudent supplier, providing supplies similar to the Supplies, would procure and maintain.
17. DEFAULT AND TERMINATION
17.1 If the Supplier breaches any of the terms or conditions of the Agreement, Braemac may issue a Notice of Default. If the Supplier does not rectify the default within the time stated in the notice, Braemac may, by written notice to the Supplier, and without prejudice to any other rights or remedies which Braemac may have, cancel the Order and Braemac will be discharged and released from any further obligation arising from the Order and have no further obligation of any kind to the Supplier. Any amounts due to the Supplier for Goods delivered by the Supplier prior to such cancellation will be subject to offset of Braemac's additional costs of procurement of a replacement Supplier and other damages incurred by Braemac as a result of the Supplier's default, including consequential loss, and is in addition to and not in substitution for any other remedy available at law or in equity.
18.1 Any provision of these terms which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make these terms enforceable, unless this would materially change the intended effect of these terms.
19.1 The Supplier must not assign any of its rights under the Purchase without the prior written consent of Braemac
20.1 Braemac is entitled to vary these terms and conditions in respect of future orders for Goods at any time by providing the Supplier with 10 Business Days prior written notice.
21. ENTIRE AGREEMENT
21.1 The Purchase Order and these terms and conditions represent the parties' entire agreement in relation to the supply of Goods by the Supplier to Braemac and supersede all tendered offers and prior representations, communications, agreements, statements and understandings, whether oral or in writing.
22. APPROVALS AND COMPLIANCES
22.1 The Supplier must obtain any necessary export licenses or other approvals for the provision of the Supplies and arrange any necessary customs entry for the Supplies. The Supplier must comply with and ensure its officers, employees, agents and subcontractors comply with the laws from time to time in force in the State, Territory or other jurisdictions in which any part of the Purchase is to be carried out.
23. HAZARDOUS SUBSTANCES
23.1 Unless Braemac otherwise agrees in writing, the Supplier warrants that the Supplies do not contain any hazardous substances as defined in Part 6 of the Occupational Health and Safety (Safety Standards) Regulations 1994 (Cth).
24.1 Clauses 10, 11, 12, 13, 17, 18, 19, and 21, continue despite the termination of this Agreement.
25. GOVERNING LAW
25.1 These terms will be governed by and construed in accordance with the laws in force in NSW, Australia.
25.2 Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in NSW, Australia, and any court that may hear appeals from any of those courts, for any proceedings in connection with these terms, and waives any right it might have to claim that those courts are an inconvenient forum.