Braemac General Terms & Conditions
General Terms & Conditions of Purchase
Applicable to Purchase Orders issued by Braemac Pty Ltd (ABN 71 332 650 026)
DEFINITIONS
Agreement means these general terms and conditions of purchase.
Corporations Act means the Corporations Act 2001 (Cth), as amended.
Delivery Date means the date the Goods will be dispatched 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 and assigns.
Modern Slavery Laws means the Modern Slavery Act 2018 (Cth) and any relevant regulations or ancillary legislation published in respect of the above or any similar modern slavery legislation in another jurisdiction of which the Principal is required to comply.
Modern Slavery Offence means any conduct which would constitute “modern slavery” under the Modern Slavery Act 2018 (Cth).
Order means a Purchase Order provided by Braemac to the Supplier.
Purchase Order means a written document provided 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 by Braemac.
State means the state of NSW in the Commonwealth of Australia.
1. SUPPLY OF GOODS
1.1 Braemac agrees to purchase and the Supplier agrees to supply the Goods in accordance with this Agreement.
1.2 This Agreement shall apply to all Goods supplied by the Supplier to Braemac unless otherwise agreed in writing by Braemac's Purchasing Manager.
1.3 This Agreement is deemed to be incorporated into all contracts for the purchase of Goods by Braemac from the Supplier and will prevail over any inconsistent terms in any document of the Supplier unless otherwise agreed by Braemac' purchasing staff in writing.
1.4 If Braemac places an order with the Supplier for Goods or enters into a contract with the Supplier and the Goods provided to Braemac, or Braemac makes any payment, the Supplier is taken to have accepted the supply of such Goods on the terms of this Agreement.
1.5 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 Good
2. COUNTERFEIT GOODS PREVENTION
2.1 Supplier agrees and shall ensure that Counterfeit Goods are not contained in Goods delivered to Braemac through the implementation of policies that include prevention, detection, and risk mitigation methods to protect against the use of Counterfeit Parts.
2.2 In the event Supplier becomes aware or suspects that it has furnished Counterfeit Parts, it shall immediately notify Braemac. In the event that Goods delivered under the purchase order are, or include, Counterfeit Parts, Supplier shall promptly investigate, analyse and report in writing to Braemac whether such Counterfeit Parts should be replaced with genuine parts conforming to the requirements of this Order, or whether an alternative solution is recommended to meet the Order requirements at Supplier’s sole expense. The parties shall then agree upon the appropriate course of action.
3. REQUEST FOR QUOTATIONS AND ORDERS
3.1 Purchase Orders: Braemac will issue a written Purchase Order for Goods. If Braemac does not receive a written notification from the Supplier that they are unable to supply the Goods according to the Purchaser Order within 24 hours of receipt of the Purchaser Order, the Supplier will be deemed to have accepted the Purchaser Order.
3.2 Request for Quotation: If Braemac provides the Supplier with a RFQ, the RFQ shall not constitute an offer 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 shall 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 provide 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, any order for Goods may not be invoiced at a price higher than that set out in an Order.
5.2 Save in the event of breach by the Supplier of this Agreement or the delivery of inadequate Goods by the Supplier, payment for Goods shall be made by Braemac in accordance with the agreed trading terms.
5.3 In the event that the Supplier breaches this Agreement, the Supplier must refund to Braemac any monies paid pursuant to this Agreement within 30 days of a notification of breach.
6. GST
6.1 Unless otherwise stated, the price for the Goods is GST inclusive.
6.2 In addition to the price for the Goods, Braemac must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under this Agreement.
7. PACKING, LABELLING AND SHIPPING
The Supplier covenants to Braemac that:
7.1 all Goods shall be properly packed to prevent damage or deterioration and, in such manner, as will obtain the lowest transportation rates;
7.2 the Supplier shall be responsible for all charges by way of preparation, crating, dunnage and other costs unless separately stated in this Agreement;
7.3 all consignments shall be clearly marked with Braemac's order reference and name;
7.4 each consignment shall be issued with a packing slip which shall 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 this Agreement for the supply or provision of those Goods.
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 The costs of shipping to the Delivery Point in order to provide the Goods will be at the Supplier's cost 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 and quantity of the Goods ordered;
b) are not fit for the purpose specified by Braemac;
c) breach any of the warranties given in under clause 11; or
d) are not of acceptable quality,
then the Goods shall not be taken to be delivered for the purposes of clause 8.
10. TITLE AND RISK
10.1 Title in Goods shall pass to Braemac at the time of delivery to the Delivery Point. Risk of damage or loss of the Goods shall pass 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. WARRANTIES
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 hereby agrees that the Goods will be provided:
a) 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) conform to the specification 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 warranty or liability implied by this Agreement, 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 all liabilities 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 in this Agreement or implied by law;
b) a breach or non-performance of any obligation of the Supplier under this Agreement, 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(a).
12.4 The provider of the warranties under this Agreement 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 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 this Agreement;
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 or 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 this Agreement. 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. INSURANCE
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 The Supplier breaches any of the terms or conditions of the Purchase, Braemac may issue a Notice of Default. If the Supplier does not correct the default within the time stated in the Default Notice, Braemac may, by written notice to the Supplier, and without prejudice to any other rights or remedies which Braemac may have, terminate any further performance by the Supplier of the Purchase. Any amounts due to the Supplier for Supplies delivered by the Supplier prior to such termination 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. SERVERABILITY
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. ASSIGNMENT
19.1 The Supplier must not assign any of its rights under the Purchase without the prior written consent of Braemac.
20. VARIATION
20.1 Braemac is entitled to vary this Agreement 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 represents the parties' entire agreement in relation to the subject matter and supersedes 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. SURVIVAL
24.1 Clauses 10, 11, 12, 13, 17, 18, 19, 21, continue despite the termination of this Agreement.
25. MODERN SLAVERY
25.1 The Supplier acknowledge that the Purchaser has obligations to comply with Modern Slavery Laws, and represents and warrants to the Purchaser that, at the date of this Agreement, the Supplier:
(a) has no knowledge of any Modern Slavery Offence currently occurring within its organisation or supply chain; and
(b) takes and will continue to take reasonable steps to identify the risk of, and prevents the occurrence of Modern Slavery Offences within its organisation or supply chains.
25.2 The Supplier will notify the Purchaser in writing as soon as practicable and no later than 2 Business Days upon becoming aware of any Modern Slavery Offence (or of any charges laid or orders made in relation to a Modern Slavery Offence) within its organisation or supply chain.
25.3 If requested by the Purchaser, the Supplier will, subject to any existing confidentiality requirements and any relevant law:
(a) take all the reasonable steps to provide the Purchaser with any information, policies, reports or documents in relation to any Modern Slavery Offence or any risk of a Modern Slavery Offence with the Supplier’s organisation or supply chain, including if required the completion of self-assessment questionnaire;
(b) take all the steps to remedy or remove any part of the Supplier’s organisation or supply chain in which a Modern Slavery Offence has been committed (or any changed laid or orders made in relation to Modern Slavery Offence).
26. GOVERNING LAW
26.1 These terms will be governed by and construed in accordance with the laws in force in NSW, Australia.
26.2 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.