Purchase Order Agreement

Switch Supply Pty Ltd - Purchase Order Conditions

Application of Conditions

These Conditions govern our engagement with you to acquire Goods and Services from you and apply to all Purchase Orders we issue.
If you wish to negotiate these Conditions with us then you should respond to this document marking up these Conditions and drawing those changes to our attention and obtain our agreement in writing.
It is not our practice to otherwise review terms and conditions on documents that you issue to us.
Unless we otherwise agree in writing we do not accept and will not be bound by any terms or conditions included in or attached to or referenced in any other document you give to us like a Quotation or sales confirmation.
For the removal of doubt you acknowledge and agree where we reference a Quotation or other document of yours (such as in our Purchase Order) which includes or incorporates any terms or conditions of yours we will not be deemed to have accepted and will not be bound by such terms or conditions.

Basis of Engagement

You are not an exclusive supplier of Goods or Services to us and we are under no obligation to meet any minimum order requirements you may set from time to time.
You acknowledge and agree that where we are acquiring Services from you, you are providing those Services as an independent contractor.
Nothing in these Conditions or any Contract of which these Conditions form part is to be construed as creating a relationship of employment, agency, joint venture, partnership or other relationship with duties or incidents different from those of parties to an arm’s length contract for services.

Customer Enquiries
If we submit a Customer Enquiry to you, you must issue a Quotation to us as soon as practicable (and in any event within three (3) Business Days) that complies with the requirements set out in clause 4 (Quotations).

Quotations
Any Quotation you issue to us:

will constitute an offer to supply the Goods or Services described in that Quotation;
must be inclusive of GST and all other imposts;
must be inclusive of the cost of delivering the Goods (including packaging costs, cartage/freight, and insurance);
must specify the Incoterm(s) applicable to the supply of Goods as agreed by us; and
will remain valid for acceptance for a period of thirty (30) days from the date of the Quotation (unless the Quotation states that it will remain valid for acceptance for a longer period, in which case it will remain valid for acceptance for that period).

Purchase Orders
We may issue a Purchase Order to you irrespective of whether you have issued a Quotation to us.
A Purchase Order number shall be stated on all documents and correspondence relating to this purchase order.
A Purchase Order may include additional terms or conditions which will supplement these Conditions.
If you do not have sufficient stock to fulfil our Purchase Order you must:

notify us in writing as soon as practicable; and
not place any Goods on backorder without our prior approval.
You must not vary the Goods or Services the subject of our Purchase Order without first obtaining from us a modified Purchase Order.
Invoices, advice notes, shipping receipts and other like documents relating to items dispatched in accordance with this purchase order must be prepared and provided to us seven (7) days prior to dispatch or such further time as we may request in writing.
We may reject any Goods or Services you have supplied where we have not issued you a Purchase Order in respect of those Goods or Services.

Formation of Contract
A Contract is formed and you have accepted these Conditions when we have issued a Purchase Order to you and either you have:

accepted our Purchase Order in writing; or
supplied us with any Goods or provided any Services following receipt of our Purchase Order.

If we revoke our Purchase Order:

prior to the formation of a Contract then:
- you will refund any deposit we have paid in respect of our Purchase Order; and
- we will not be required to pay any fee or reimburse you for any costs associated with us cancelling our Purchase Order; or alternatively
after the formation of a Contract then unless we are in breach of the Contract:
- we will pay your reasonable costs (as evidenced by supporting documentation) incurred directly with fulfilment of our Purchase Order to the extent that you are unable (acting reasonably) to mitigate such costs in other ways; and
- you may apply any deposit we have paid towards those costs and refund any balance to us as soon as practicable.

Price
The price payable for the Goods or Services is stated in our Purchase Order is all-inclusive and includes:

the price or rates payable for the Goods or Services;
all verification and other documentation necessary for our purchase, transport, delivery, use or on-sale of the Goods including but not limited to material certificates, product testing verifications, quality assessments or country of origin certifications;
all taxes, duties, levies, excises, fees, charges and all other sums payable on or in respect of the Goods or Services; and
the costs of delivering the Goods (including packaging costs, cartage/freight, insurance, and such other Incoterm costs that may be applicable).

After a Contract has been formed, we may request that you carry out a Variation in accordance with clause 8 (Variations) in which case the price or rates payable in respect of the Variation will be determined:

by agreement; or failing agreement
by the prices or rates stated in our Purchase Order.

Variations
If we require a Variation, we will issue a Variation Request to you.
If you accept our Variation Request, you must not commence any work towards the Variation until:

we have issued you with a Purchase Order for the Variation Request (or a modified Purchase Order); and
you have accepted our Purchase Order.
You must not carry out any Variation except in accordance with this clause 8.

Delivery and Risk
You will use reasonable endeavours to deliver the Goods at the time and place agreed for delivery stated in our Purchase Order.
If no time for delivery is stated in our Purchase Order, you must deliver the Goods as soon as practicable.
You may only deliver the Goods prior to the time agreed for delivery with our prior approval.
You acknowledge and agree that unless our Purchase Order expressly states otherwise:

time in respect of delivery is of the essence; and
you must deliver the Goods in one lot.
You must ensure that all Goods:
are suitably packed to permit their safety and security during transport; and
are accompanied by a delivery docket and packing slip which includes:
- your tax invoice number;
- a detailed description of the Goods;
- the total quantity and unit of measure for each of the Goods;
- the method of transport and carrier consignment note number (where applicable); and
- the purchase order reference number applicable to the Goods.
  Risk of loss, damage or deterioration to the Goods passes to us and delivery is deemed to occur at the time:
we or any third party on our behalf collect the Goods from you;
you or your nominated carrier delivers the Goods to the delivery location stated in our Purchase Order (or to such other location as agreed in writing) during Business Hours;
our nominated carrier takes possession of the Goods; or
determined by the agreed Incoterm(s) applicable to the Goods.
If we sign your delivery docket or consignment note or that of your nominated carrier it will:
not be deemed to be our acceptance of the Goods in good order and condition in the quantity or volume we have ordered; and
only be confirmation that we have received the number of packages, cartons or other containers delivered.

Title in the Goods
Ownership and unencumbered title in the Goods passes to us on the earlier of:

us making payment for those Goods; or
delivery.

Invoicing and Payment Terms
Unless our Purchase Order expressly states otherwise you may only issue an invoice to us:

(in the case of a supply of Goods): on or after delivery of the Goods;
(in the case of a supply of Services):
- where our Purchase Order provides for Services to be provided by you on a one-off basis or as a single engagement following your completion of the Services; or
- where our Purchase Order provides for Services to be provided by you on an ongoing basis on a progressive basis as rendered.
  Each invoice you issue to us must:
be sent to us via email to: accounts@switchsupply.com
reference the Purchase Order number to which the invoice relates;
contain all information required in a tax invoice for the purposes of the GST Act; and
contain any other information we reasonably require.
Payment of an invoice is conditional upon you having provided us with all QA Documentation we require in respect of the Goods or Services the subject of that invoice.
The terms of payment are:
for domestic suppliers) thirty (30) days from the end of the month in which we receive the invoice; or
(for international suppliers) to be determined on a case-by-case basis as agreed between the parties at the time a Contract is formed.
We may make payment by cash, cheque, electronic funds transfer or credit card. We reserve the right to change the payment methods that we use at any time.
Payment of an invoice does not constitute our acceptance of the Goods or Services or of the amount you have invoiced and will be deemed to be payment on account only.
We agree to pay GST on all taxable supplies upon you issuing us a tax invoice relating to the taxable supply.
You agree we will not be required to pay any interest on any amount which remains unpaid after the due date for payment.
You agree we may set off, deduct or withhold any amounts you owe us from any amount we owe you.
Without derogating from clause 11.9, we may but are not obliged to deduct and withhold from any payment due to you any amount we determine (acting reasonably) we are required to deduct or withhold by law including PAYG withholding and compulsory superannuation contributions (notwithstanding clause 15.4(d.

Claims
We may give you notice in writing with particulars of any Claim that:

the Goods delivered are not in accordance with the Contract (including any Claim for shortfall, incorrect supply or defect in or damage to the Goods) or for have not been delivered; or
the Services have not been provided in accordance with the Contract.
You acknowledge and agree that no time bar or limitation period (other than any applicable limitation period under statute) will apply to any Claim we make under clause 12.1.
You must at all times have appropriate, current and adequate insurance cover including but not limited to public and product liability insurance.
You must maintain professional indemnity and product liability insurance for at least six (6) years after the completion of the Services or supply of the Goods.

Returns
You must accept the return of any Goods if:

the Goods supplied do not conform with the Contract;
the Goods are defective;
you are required by law to accept the return of the Goods; or
we change our mind but only if:
- we reimburse you for all reasonable costs you incur in connection with the return of those Goods (except for Goods you have incorrectly supplied or are defective);
- the Goods are in substantially the same condition to the condition in which they were delivered; and
- the Goods were not specifically produced or procured at our request.

Warranties (Goods)
This clause 14 applies for Contracts where you supply Goods to us.
You warrant and represent to us that the Goods:

match the description stated in our Purchase Order;
conform with the Specifications and all applicable laws, regulations and standards;
are new or of merchantable quality;
are free from all defects in design, materials and workmanship;
are free from any security interests, liens or other encumbrances; and
are fit for the purpose for which goods of the same kind are commonly supplied and for any specific purpose we have made known to you.
You must document, plan and maintain a Standard QA System HACCP or ISO standard (or other equally recognised and applicable standard as the context requires) to ensure comprehensive control is achieved in the quality of the Goods being supplied under this Purchase Order.

Warranties (Services)
This clause 15 applies for Contracts where you provide Services to us.
You warrant and represent to us that the Services:

will be provided in accordance with our Purchase Order and to our reasonable satisfaction;
conform with the Specifications and all applicable laws, regulations and standards;
will be provided by appropriately qualified, competent and skilled Personnel of yours; and
will be provided in a proper and professional manner with due skill, care and diligence and in accordance with generally accepted industry standards.
You warrant and represent to us that you (and your Personnel):
are legally entitled to operate in Australia;
hold and will maintain all necessary Approvals;
are authorised to and not restricted in any way (whether by contract or otherwise) from providing the Services; and
will not be a party to any act or thing prejudicial to our goodwill, commercial reputation or overall public image.
You warrant and represent to us that you:
have an Australian Business Number (ABN) and have provided your ABN to us;
will quote your ABN on each invoice you issue to us;
will immediately advise us if your ABN or GST registration is cancelled; and
are solely responsible for:
- payment of your own taxes and compliance with your taxation obligations including income tax (and consent to us furnishing the Commissioner of Taxation with your name and address and with the details of any payments we make to you); and
- all Employee Benefits and Obligations due or accruing to you or your Personnel from time to time.

Australian Standards
Materials and supplies are to comply with the Work Health and Safety Act 2011 (Cth) and all standards applicable to the Goods as determined from time to time by the following departments and bodies (and including without limitation their successors or assignees as the case may be):

Food Standards Australia New Zealand (FASNZ);
the Department of Agriculture, Fisheries and Forestry (DAFF); and
the Biosecurity Import Conditions system (BICON).
Items of plant and chemical substances are to comply with OHS legislation and relevant Standards.
You must notify us of any OH&S or Environment order judgment made against you within the process of manufacture or the supply of goods.

Access
If you are engaged to provide Services at our premises you must and must ensure that your Personnel:

protect people and property;
prevent nuisance;
act in a safe and lawful manner;
comply with all of our safety standards and policies (as made known to you from time to time); and
comply with any lawful directions we give.
You must provide our inspectors or representatives with access at all reasonable times to your manufacturing Plant, Factories, shops or premises for the purpose of inspecting goods, materials, equipment or any part thereof during the process of manufacture.

Customer Property
You acknowledge and agree that:

we are the legal and beneficial owner of the Customer Property;
your right to use the Customer Property is as bailee only and limited to the performance of your obligations under the Contract;
you must maintain the Customer Property and keep it in good order and condition;
you must allow us to inspect the Customer Property at all reasonable times while it is in your possession or under your control;
you must not sell, pledge, assign, reproduce, license, modify, destroy or dispose of the Customer Property or otherwise deal with the Customer Property in a manner inconsistent with our rights or interest without our prior written and fully informed consent; and
you must promptly return the Customer Property to us upon demand.

Security Interest
Nothing in these Conditions or any Purchase Order we issue to you creates a security interest in the Goods or any Customer Property in your favour.
Unless you have obtained our prior written and fully informed consent you undertake not to create nor purport to create any security interest in the Goods (or any proceeds derived from the sale of such Goods) nor register nor permit to be registered a financing statement or financing change statement in relation to the Goods or Customer Property in your favour or in favour of any third party.

Particular Purpose for Goods or Services
If we require any Goods or Services for a particular purpose we will make that purpose known to you prior to or at the time we issue a Purchase Order to you.
You acknowledge and agree that:

we may provide you with documentation specifying the particular purpose (the ‘Particular Purpose Documentation’) required for Goods or Services; and
any Particular Purpose Documentation that we provide to you pursuant to this clause forms part of any contract for supply of which these Conditions form part.
You must advise us if the Goods or Services are fit for our intended purpose (including as required under clause 20.2) and will meet our requirements (including the Specifications) and at our request must provide us with a written assurance to this effect.

Indemnities
If you default in the performance or observance of your obligations under any Contract of which these Conditions form part then:

we will take steps to mitigate our loss and act reasonably in relation to any default by you; and
we will give you notice requesting payment for loss and damage occasioned in respect of those events and requesting that you remedy any breach within a reasonable time; and
if that demand is not met then you indemnify us in respect of loss, damage, costs (including collection costs, bank dishonour fees and legal costs on an indemnity basis) that we have suffered arising therefrom.
You are responsible for and must indemnify and hold us harmless from and against any Claims arising in connection with any tax, charge, fine, penalty or other impost which we incur or become liable to pay as a result of your breach of any of the warranties contained in clauses 14 (Warranties (Goods or 15 (Warranties (Services.
Your liability to indemnify us will be reduced proportionally to the extent that any fraud, negligence or wilful misconduct by us or a breach of our obligations under contract has contributed to the Claim, loss, damage or cost which is the subject of the indemnity.
Your liability to indemnify us is a continuing obligation separate and independent from your other obligations and survives the termination or performance of any Contract of which these Conditions form part.

Termination
A party may with immediate effect terminate any Contract of which these Conditions form part by notice in writing if the other party:

commits a material or persistent breach of these Conditions and does not remedy that breach (if capable of remedy) within seven (7) days of the receipt of a notice (or such longer time as specified in the notice) identifying the breach and requiring its remedy; or
has failed to pay sums due to the party within seven (7) days; or
has indicated that it is or may become insolvent; or
ceases to carry on business; or
comprises an entity which is the subject of the appointment of receivers or managers; or
comprises a natural person who:
- has committed an act of bankruptcy; or
- has been made bankrupt;
comprises a corporation which:
- enters into voluntary administration;
- is subject to a deed of company arrangement; or
- is subject to the appointment of liquidators or provisional liquidators.
  If the Contract is terminated we are liable to only pay to you:
the amount due for any Goods that have been delivered to us or for Services already rendered in accordance with our Purchase Order prior to the date of termination; and
any reasonable costs you have incurred (as evidenced by supporting documentation) directly with fulfilment of our Purchase Order up until the date the Contract is terminated to the extent that you are unable (acting reasonably) to mitigate such costs in other ways.
The payment we make under clause 21.2 (if any) will constitute the full and final compensation we are required to pay under or in connection with termination of the Contract.

Intellectual Property
You acknowledge and agree that we own all Intellectual Property you develop in the course of or arising out of any Contract of which these Conditions form part. For the removal of doubt, you immediately and irrevocably assign any such Intellectual Property to us.
You agree to make prompt and full disclosure to us of the development of any Intellectual Property and you will not make use of or reproduce any of our Intellectual Property without our prior written and fully informed consent.
You consent to us, our Personnel, licensees and assigns doing any act or making any omissions that might otherwise constitute an infringement of your Moral Rights in any Works made you during the course of your engagement including:

not naming you as the author of the Works; and
amending or modifying (whether by changing, adding to or deleting or removing) any part of the Works but only if you are noted named as the author of the amended or modified Works whether such acts or omissions occur before or after the performance or termination of the Contract.

Confidentiality
Each party must not:

use the other party’s Confidential Information other than as strictly necessary to undertake its obligations under the Contract; or
directly or indirectly disclose to any other person or exploit the other party’s Confidential Information other than with the prior written and fully informed consent of that party
except to the extent that:
disclosure is permitted by the Contract;
the information is available to the public generally (except as a result of a previous breach of this clause 23.1);
a party is required to make disclosure by operation of law; or
the disclosure is made on a confidential basis to a party’s representatives or professional advisers for the purpose of obtaining professional advice.
Each party’s obligation under clause 23.1 is a continuing obligation separate and independent from that party’s other obligations and survives the performance or termination of a Contract for a period of three (3) years.

Media Releases
You must not make any media releases, public announcements or public disclosure (including promotional or marketing material) concerning our acquisition of Goods or Services from you without our prior written and fully informed consent.

Subcontracting and Assignment
You must not subcontract:

the manufacturing or supply of any part of the Goods to be supplied; or
the Services to be provided or any part of those Services
without our prior written and fully informed consent (which we may give conditionally or withhold in our absolute discretion).
A party may only assign its rights under the Contract with the written consent of the other party.

Variation
We may amend these Conditions in the future by notifying you in writing. The amended Conditions will thereafter apply to each Purchase Order we issue to you unless you earlier give us written notice to the contrary in advance of accepting our Purchase Order.

Waiver
A waiver of any provision of these Conditions will only be effective if made by the affected party in writing.

Conflicts and Inconsistencies
If there is any conflict or inconsistency between any of the documents which together govern the relationship between the parties, it is agreed the order of precedence will be (highest to lowest):

any additional terms or conditions contained in our Purchase Order applicable to your supply of Goods or Services; and
these Conditions.

Severance
If any part or term of our agreement with you is illegal, invalid or unenforceable it will be read down so far as necessary to give it a valid and enforceable operation or if that is not possible it will be severed from the Contract and the remaining provisions will not be affected, prejudiced or impaired by such severance.

Governing Law and Jurisdiction
Our relationship is governed by and must be construed according to the law applying in the State of Victoria.
The parties irrevocably submit to the non-exclusive jurisdiction of the courts of the State of Victoria with respect to any proceedings that may be brought at any time relating to our relationship.

Definitions
In these Conditions unless the context otherwise requires the following definitions apply:

Approval means any authorisation, assessment, accreditation, determination, registration, clearance, permit, licence, consent, certificate or other approval obtained or required or applying in connection with your business or the supply of the Goods or Services.
Business Hours means:
- (Monday to Thursday) between 08:00am to 4:00pm; and
- (Friday) between 08:00am to 3:00pm
  on days that are not gazetted public holidays in the place where the Goods or Services are or are to be supplied.
Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment or award howsoever arising whether present, unascertained, immediate, future or contingent whether based in contract, tort, pursuant to statute or otherwise and whether involving a third party or a party to a Contract.
Confidential Information means:
- the terms of a Contract and all negotiations leading to its formation;
- all information in any form disclosed or made available by a party that:
  - is by its nature (or the circumstances in which it is disclosed) confidential;
  - is designated by a party to be confidential; or
  - a party knows or ought reasonably to know is confidential
    including confidential information relating to a party’s business not in the public domain including trade secrets, industrial practices, know-how, scientific, technical, product, market or pricing information.
Contract means a contract for the purchase of Goods or Services as constituted by your Quotation (if any), our Purchase Order and these Conditions.
Copyright Act means the Copyright Act 1968 (Cth) as amended.
Customer, we, us means Switch Supply Pty Ltd (ACN 600 011 247).
Customer Enquiry means an enquiry from us regarding the potential purchase of Goods or Services which includes the Specifications and any Supply Timeframe we require.
Employee Benefits and Obligations means:
- all remuneration, annual leave, sick leave, long service leave, redundancy payments, extra payments for overtime or public holidays and any similar benefits payable to or in respect of you or your Personnel; and
- all accident or workers’ compensation payments and premiums, payroll tax, pay as you go tax and related income tax deductions, superannuation contributions or other similar payments or contributions payable to or in respect of you or your Personnel.
Goods means the goods or materials to be supplied by you as described in our Purchase Order.
GST Act means A New Tax Systems (Goods and Services Tax) Act 1999 (Cth).
Incoterms or International Commercial Term means the pre-defined commercial term(s) published by the International Chamber of Commerce relating to international commercial law as published or amended from time to time.
Intellectual Property means all industrial and intellectual property rights throughout the world whether present or future and whether protectable by statute, at common law or in equity including rights in relation to copyright, trade secrets, know-how, trade marks (whether registered or unregistered or whether in word or logo/device form), designs, patents and patentable inventions including the right to apply for registration of any such rights.
Moral Rights has the meaning given to this term in the Copyright Act as amended and includes any other rights of an analogous nature which may now exist or which may exist in the future under the law of a country other than Australia.
Personnel means the officers, employees and agents engaged by each party (but does not include the other party) and in the case of the Supplier includes its subcontractors (and any employee of those subcontractors).
PPS Act means the Personal Property Securities Act 2009 (Cth) as amended.
Purchase Order means a written purchase order we issue to you for the supply of Goods of Services which accompanies or incorporates these Conditions together with all documents accompanying the purchase order.
Services means the services to be provided by you as described in our Purchase Order.
Specifications means any physical data, safety, technical or material specifications or other characteristics or requirements in relation to the Goods or Services stated in our Customer Enquiry or Purchase Order.
Supplier, you means the person or other entity described in our Purchase Order.
Customer Property means all materials, tools, equipment, dies, moulds, patterns, drawings, blueprints, designs, specifications, samples, technical data and any other items we supply to you for the purposes of you supplying the Goods or Services.
Supply Timeframe means the timeframe in which you are required to supply the Goods or provide the Services (as the context requires) stated in our Customer Enquiry or Purchase Order.
QA Documentation means any and all quality assurance documentation required by us in relation to the Goods or Services including but not limited to certificates, approvals or other such documentation outlined and reasonably required by us in our onboarding process.
QA System means a certified and current quality assurance or quality management system to ensure the Goods are fully compliant under all relevant Australian and International standards.
Quotation means a quotation, proposal or similar document you issue in response to our Customer Enquiry (and the Specifications and any Supply Timeframe detailed therein) which sets out the net price or rates payable for the Goods or Services.
Variation means any change to, addition or omission in the scope, quality or character of the Goods or Services to be supplied by you (and includes any change to the Specifications or Supply Timeframe).
Variation Request means a written request we issue to you which describes the Variation we require.
Works includes all photographs, videos, literary, dramatic, musical and artistic work within the meaning of the Copyright Act.

Interpretation
In these Conditions unless the context otherwise requires:

A time is a reference to the time zone of Melbourne, Australia unless otherwise specified.
A party includes a reference to that person’s executors, administrators, successors, substitutes (including a person who becomes a party by novation), assigns and in the case of a trustee includes any substituted or additional trustee.
A right includes a benefit, remedy, authority, discretion or power.
The singular includes the plural and vice versa and a gender includes other genders.
“In writing” or “written” means any expression of information in words, numbers or other symbols which can be read, reproduced and later communicated and includes electronically transmitted and stored information.
If a word or phrase is given a defined meaning, its other grammatical forms have a corresponding meaning.
Words such as “includes”, “including”, and “for example” are not words of limitation and are to be construed as though followed by the words “without limitation”.
A term of an agreement in favour of two or more persons is for the benefit of them jointly and each of them separately.