CONDITIONS OF PURCHASE
1.1 These Conditions of Purchase replace any existing written agreement between General Cable Australia Pty Ltd ACN 008 553 660, (“GCA”) and the Supplier for the supply of Goods or Services by the Supplier to GCA.
1.2 Any purchase order placed for Goods and/or Services by GCA with the Supplier will be placed on the basis of these Conditions of Purchase to the exclusion of all other terms. Any terms and conditions on the Supplier's Quote, confirmation of order, or any other documentation provided by the Supplier to GCA, do not form part of the Contract unless those terms are expressly accepted by the GCA in writing.
1.3 For the avoidance of doubt, where there is a conflict between:
(a) a purchase order and these Conditions of Purchase, these Conditions of Purchase shall prevail;
(b) a Quote and a purchase order, the purchase order shall prevail; and
(c) these Conditions of Purchase and any terms of sale of the Supplier, these Conditions of Purchase shall prevail.
1.4 No agent or representative of GCA is authorised to make any representations, guarantees, warranties, conditions or agreement not expressly confirmed by GCA in writing and GCA is not in any way bound by any such unauthorised statements nor can any such statements be taken to form a Contract or part of a Contract with GCA.
1.5 No purchase order (whether or not confirmed) may be varied or cancelled without GCA’s prior written consent and without payment of any variation or cancellation charge reasonably prescribed by GCA.
2. PURCHASE ORDERS
2.1 Purchase orders bind the Supplier to the Delivery of the quantities of the Goods and/or Services specified in the purchase order at the Price:
(a) set out in the relevant Quote to which it relates (where the purchase order is made in reliance on a Quote and Delivery is required before the expiry of the Quote); or
(b) the Price determined in accordance with the price list of the Supplier at the relevant time the Supplier confirms acceptance of the purchase order in writing to GCA.
2.2 The Supplier is deemed to have accepted a purchase order if it does not reject the purchase order by notice in writing to GCA in whole or in part within three Working days of its receipt.
2.3 Purchase orders must specify:
(a) the Goods and quantity required;
(b) the Services required;
(c) the Specifications (if necessary);
(d) the required date and place of Delivery;
(e) any relevant Quote number, Quoted Price and Quote expiry date (if applicable);
(f) the Price;
(g) any agreed Price variations (ie for metal or exchange rates);
(h) the relevant Contract number (if applicable);
(i) the Delivery address; and
(j) any other information reasonably required by GCA.
2.4 Purchase orders may be cancelled by GCA on payment by GCA of the actual costs incurred by the Supplier (which cannot otherwise be recovered by the Supplier) in manufacturing the relevant Goods (if any) or supplying the Services prior to the date of cancellation. In such circumstances, the Supplier has an obligation to mitigate its costs.
3. GOODS MADE TO ORDER
3.1 Where Goods are made to order for GCA, GCA may, in its absolute discretion, issue a Specification change order to the Supplier in writing on the following grounds:
(a) to improve manufacture, including but not limited to, technological improvements, reduction in cost or time of production;
(b) to correct a problem in a design current at that time; or
(c) to respond to a request from any of its customers for a change to the design, manufacturing process or the Specifications.
3.2 The Specification change order must specify:
(a) the change to the Specifications;
(b) the name and signature of the person with the authority to approve and release the Specification change order;
(c) the date from which the Specification change order is effective; and
(d) whether the Specification change order is effective in respect of any or all of the following:
(i) new production;
(ii) existing stock; or
3.3 The Supplier must notify GCA if it accepts or rejects a Specification change order within 2 Working day of receiving the Specification change order from GCA (Change Notice). If the Supplier accepts a Specification change order it must notify GCA in writing of any change to the Price as a result of the Specification change order (Price Variation).
(a) the Supplier accepts the Specification change order; and
(b) GCA notifies the Supplier within a further 2 Working days of receipt of a Change Notice that it agrees to the Price Variation resulting from the Specification change order (or it requires the Specification change order to occur but disputes the value of the Price Variation),
then subject to clause 3.5, the Supplier must carry out and comply with the Specification change order made under the relevant purchase order.
3.5 Subject to this clause 3.5, the parties agree that the Price will be adjusted in accordance with any Price Variation notified by the Supplier to GCA in writing. If GCA has a bona fide dispute in respect of any Price Variation, then:
(a) GCA may request that the Supplier proceeds with the Specification change order; and
(b) refer the matter to dispute resolution in accordance with clause 23.
3.6 If the Supplier notifies GCA in a Change Notice that it rejects the Specification change order and confirms this to GCA in writing, then GCA may, within 5 Working days of receipt of the Change Notice:
(a) direct the Supplier to proceed with the original Specifications provided to the Supplier; or
(b) cancel the purchase order at no cost GCA.
3.7 If a purchase order is cancelled in accordance with clause 3.6(b), and manufacturing or procurement of the relevant purchase order commenced prior to the date of cancellation, then any completed items, work in progress or raw materials that cannot be altered or will not be required to comply with the Specification change order will be invoiced to GCA. This will be at the previously agreed Price (in terms of completed items) or at the cost of manufacture and processing the order to the date the Supplier accepts in writing the Specification change order request in accordance with clause 3.3.
4.1 The Price for Goods and Services will be:
(a) as set out in the relevant Quote;
(b) in the absence of a Quote, as recorded by GCA on a purchase order which is then confirmed in writing to GCA by the Supplier; or
(c) in the absence of a purchase order which documents the Price, then by using the agreed pricing applicable at the date of Delivery of the Goods or the date of supply of the Services which must be evidenced in writing.
4.2 The Price will be DDP (Delivered Duty Paid) as defined by Incoterms 2010 published by the International Chamber of Commerce and includes freight and any goods and services tax and other taxes and duties assessed or levied in connection with the supply of the Goods to GCA unless otherwise specified. Where there is any conflict between these Conditions of Purchase and the Incoterms specified on the purchase order, the purchase order shall prevail.
4.3 Any change to the Price will be subject to GCA's prior written approval.
5.1 The Supplier must invoice GCA for each purchase order within 30 days from the date of supply
5.2 Payment for Goods Delivered and Services supplied to GCA in accordance with a purchase order will be made by the end of the month following the date of receipt by GCA of the Supplier's relevant invoice.
5.3 If GCA does not pay any amount owing under an invoice by the due date for payment, the Supplier shall contact GCA to discuss such delay and the parties shall work together in good faith using reasonable endeavours to ensure the Supplier receives payment as soon as GCA is reasonably able to pay any amount owing.
5.4 The Supplier must comply with clause 5.3 before:
(a) delaying the supply of any Services to GCA;
(b) delaying Delivery of any Goods to GCA;
(c) suspending or cancelling GCA's account with the Supplier or the Delivery of any Goods or supply of any Services; or
(d) commencing any debt recovery proceedings.
5.5 For the avoidance of doubt, the Supplier shall not be entitled to withhold Delivery of any Goods or the provision of any Services where there is no dispute in relation to those Goods or Services and if an invoice relates to a Delivery where some Goods or the supply of some Services are in dispute and some are not, then the Supplier must deliver the Goods or supply the Services that are not in dispute in accordance with the Contract.
5.6 GCA may offset any payments due to the Supplier while any overdue amounts payable to GCA remain outstanding.
5.7 If the Supplier is in default in the performance of its obligations under the Contract or any other contract or arrangement between GCA and the Supplier then GCA may, at its option, suspend or terminate the Contract (or any nominated purchase orders), and the Supplier must Deliver all work in progress up to the date of such suspension or termination immediately to GCA.
6.1 Delivery shall be made at the place specified in the relevant purchase order. The Supplier will meet any costs incurred if Goods have been turned away and returned to a depot. Off-loading shall be the responsibility of, and at the cost of, GCA.
6.2 The date and place for Delivery specified in the relevant purchase order may be changed at the request of GCA.
6.3 GCA will not accept Goods that have been damaged in transit.
7.1 The Supplier must supply GCA with the Goods and Services at the dates and times and in the manner specified by GCA in the purchase order and provide information on the status of supply as required by GCA in writing on a weekly basis.
8. TIME FOR DELIVERY
8.1 The date and time stated for Delivery of Goods and Services in a purchase order shall be of the essence.
8.2 If the Supplier is, or is likely to become, unable to supply the Goods or Services, by the date and time specified in the purchase order, the Supplier shall:
(a) advise GCA immediately in writing; and
(b) use its best endeavours to provide alternative Goods or Services (with the consent of GCA) that satisfy the purchase order and that are (in GCA's sole opinion) of equal or superior quality and at no greater cost to GCA.
8.3 If the Supplier appears, in GCA's opinion, unlikely to or does not deliver the Goods or Services or suitable alternatives, by the date and time specified in the purchase order, or the Supplier’s alternatives are unsuitable (in GCA's sole opinion) for any reason, GCA may do one or all of the following:
(a) terminate the purchase order;
(b) purchase equivalent Goods or Services from an alternate supplier and the Supplier shall cooperate, at its cost, with GCA and any supplier appointed to take over the provision of the Goods or Services; and/or
(c) recover from the Supplier (by payment on demand) the difference between the Price for the Goods or Services and the price for the Goods and Services that GCA pays to the alternate supplier.
9. RISK AND TITLE
9.1 Risk of any loss, damage or deterioration of or to the Goods shall be borne by the Supplier until Delivery of the Goods.
9.2 Up until the time of Delivery the Supplier will insure the Goods against all appropriate risks and provide copies of all insurance policies or certificates of currency to GCA on request.
9.3 Title in the Goods will pass from the Supplier to GCA on Delivery.
10. PERSONAL PROPERTY SECURITIES REGISTER
For the purposes of this clause 10 the following definitions apply:
PPS Law means the PPSA and any amendment made at any time to any other law as a consequence of the PPSA;
Security Interest has the meaning given to that term in section 12 of the PPSA;
Transaction means any transaction contemplated by or in connection with any Transaction Document; and
Transaction Document means:
(a) the Conditions of Purchase;
(b) any purchase order (whether accepted or not);
(c) any document or agreement that the parties agree in writing is to be a transaction document for the purposes of this Contract;
(d) any document or written agreement that is entered into under any of the above; and
(e) any written undertaking by or to a party or its lawyers that is given under or related to any of the above.
10.2 PPSA further steps
(a) If in GCA's opinion:
(i) any Transaction Document contains or any of the Transactions create a Security Interest for the purposes of the PPS Law; or
(ii) the PPS Law does or could affect GCA's rights or obligations under or in connection with any Transaction Document,
(each a PPSA Event), GCA may, at its discretion, do any of the following:
(iii) register or give any notification in connection with any relevant Security Interest and exercise rights in connection with the Security Interest; and
(iv) give notice to the Supplier requiring it to do anything at its expense that GCA requires for the purposes of the relevant PPSA Event including, but not limited to, amending any Transaction Document, executing any new document or agreement, obtaining consents and supplying information.
(b) The Supplier must comply with any notice received pursuant to clause 10.2(a)(iv) within the time stipulated in the notice.
(a) The Supplier irrevocably and unconditionally waives its right to receive from GCA any notice under the PPS Law (including notice of a Verification Statement) unless required by the PPS Law and if the notice cannot be excluded.
(b) The Supplier must not register a Security Interest against GCA without its prior written consent.
(c) The Supplier must notify GCA immediately of any change in its name, address, and any other information provided to GCA to enable GCA to register a financing change statement under the PPS Law if required.
(d) The parties agree that the subject matter referred to in section 275(1) of the PPS Law is confidential and each party must not disclose any such information to a third party.
(e) The Supplier is responsible for the costs of complying with this clause 10.
10.4 Contracting out
(a) The following provisions of the PPS Law do not apply and, for the purposes of section 115 are "contracted out" of these terms, namely sections 95, 96, 121(4), 130, 132(3)(d), 132(4), 135, 142 and 143.
(b) The parties agree that GCA has the power to retain, deal with or dispose of any property seized by it in the manner specified in sections 123, 125, 126, 128, 129 and 134(1) of the PPS Law and in any other manner it deems fit.
11. NON-COMPLIANT GOODS AND SERVICES
11.1 GCA will use its best endeavours to advise the Supplier in writing within twenty Working days of the date of Delivery of the Goods or date of supply of the Services (as applicable) if there is any discrepancy between:
(a) the Goods which should have been Delivered and the Goods actually Delivered; or
(b) the Services which should have been supplied and the Services actually supplied,
(each a Non-compliant Matter) including details of any deficiencies in quantity, quality and any other relevant matters (the Non-compliance Notice)
11.2 If GCA issues a Non-Compliance Notice at any time on or after Delivery of the Goods or provision of the Services, then the Supplier will have 20 Working days (or such shorter period as reasonably required by GCA having regard to the nature of the relevant Non-compliant Matter) to investigate the details of the Non-compliant Matter as set out in the Non-compliance Notice.
11.3 Notwithstanding clause 11.2, GCA may at any time on or after Delivery of the Goods or provision of the Services elect to do one or all of the following at the Supplier's cost:
(a) in respect of any Goods the subject of a Non-compliance notice (Non-Compliant Goods):
(i) reject any defective Goods;
(ii) require the Supplier to rectify the Non-Compliant Goods (as the case may be) as reasonably required by GCA, at the Supplier’s cost at any date and time nominated by GCA; or
(iii) require the Supplier to refund to GCA the full cost of the Non-complaint Goods; or
(b) in respect of any Services the subject of a Non-compliance notice (Non-Compliant Services):
(i) reject any defective Services;
(ii) require the Supplier to rectify the Non-Compliant Services (as the case may be) as reasonably required by GCA, at the Supplier’s cost at any date and time nominated by GCA; or
(iii) require the Supplier to refund to GCA the full cost of the Non-Complaint Services.
11.4 If the Supplier is unable to comply with clause 11.3 to GCA's reasonable satisfaction, GCA may engage a substitute supplier to supply such Goods or Services (Alternate Supplier).
11.5 In the event that GCA engages an Alternate Supplier in accordance with clause 11.4, then the Supplier must pay GCA on demand the difference between the Price for the Goods or Services that would have been payable to the Supplier had the Goods not been Non-Compliant Goods or the Services not been Non-Compliant Services (as the case may be) and the price payable by GCA to an Alternate Supplier for the Goods and/or Services (including any freight, taxes and other costs and charges associated with the provision of the Goods and/or Services by the Alternate Supplier).
11.6 For the avoidance of doubt, GCA is not required to pay for Non-Compliant Goods or Non-Compliant Services and, if and to the extent GCA has paid for any Non-Compliant Goods or Non-Compliant Services, GCA shall be entitled to set off such amounts against any payments due and owing by GCA to the Supplier.
12. GENERAL OBLIGATIONS
12.1 In providing the Goods and Services, the Supplier must:
(a) maintain and comply with all necessary certificates, licences and consents to supply the Goods and Services;
(b) comply with all applicable laws and industry codes of practice;
(c) act with reasonable care, skill and diligence;
(d) without limiting any express obligation under the Contract, comply with all reasonable timeframes, directions and other requirements of GCA;
(e) not damage or adversely affect GCA's reputation or business operations; and
(f) promptly respond to any reasonable requests for information made by GCA in relation to the Goods and Services.
Without derogating from any warranties that the Supplier provides for its Goods and Services, the Supplier shall ensure that any Goods and Services it supplies to GCA:
(a) will, at the time of delivery, be free of any Encumbrance;
(b) will not infringe the Intellectual property rights of any person when sold to GCA or used by GCA;
(c) are fit for their intended purpose and free from defects;
(d) are manufactured at all times by appropriately trained, qualified and experienced individuals;
(e) strictly comply with the Contract and any Specifications; and
(f) comply with any relevant statute, regulation, bylaw, industry standards and code of practice.
14.1 Without limiting the Supplier's obligations, the Supplier acknowledges that it will be liable for, and indemnifies and must keep GCA indemnified, from and against any Claim or Liability that GCA pays, suffers, incurs or is liable for in connection with:
(a) any breach of any warranty or any of the other terms and conditions of this Contract by the Supplier or its Personnel;
(b) any damage to the physical property of GCA caused by the Supplier or the Supplier’s Personnel;
(c) any personal injury, illness or death to any person or damage to any property or any other loss or damage of any kind whatsoever caused or contributed to by:
(i) the Goods or the performance of any Services by the Supplier or its Personnel; or
(ii) the entry onto, or the activities undertaken on and in, GCA's premises by the Supplier or its Personnel;
(d) any loss or damage to any plant, equipment, tools, appliances or other property owned, rented or hired by the Supplier or its Personnel and used in relation to this Contract;
(e) any breach of confidentiality or privacy obligation by the Supplier or its Personnel; and
(f) any negligence, misconduct or wilful, reckless, malicious or fraudulent acts or omissions by the Supplier or its Personnel.
15. INTELLECTUAL PROPERTY
15.1 All rights, title and interest to any Intellectual property used or relied upon by a party at the date of these Conditions of Purchase remain vested in that party and nothing in the Contract entitles a party to use or rely upon the other party's Intellectual property, except with the prior written approval of the other party.
15.2 The Supplier indemnifies and must keep indemnified GCA against any Liability, whether direct or indirect, arising out of a Claim by a third party against GCA alleging that any aspect of the Goods or Services infringes any Intellectual property rights of another person.
15.3 GCA may enforce this right of indemnity at any time, including before it has incurred the Liability.
15.4 Each party must notify the other party as soon as practicable of any infringement, suspected infringement or alleged infringement by any aspect of the Goods or Services of the Intellectual property rights of any person.
15.5 Without limiting clauses 15.2, 15.3 and 15.4 if it is determined by any independent tribunal of fact or law or if it is agreed between the parties to a dispute that an infringement of Intellectual property rights has occurred, the Supplier must at its sole election and expense either:
(a) modify the relevant part of the Goods to avoid continuing infringement (as long as the Goods still comply with the Specifications after these modifications); or
(b) procure for GCA the right to continue to use or maintain possession of the infringing part of the Goods.
15.6 If the Supplier fails to achieve either of the solutions referred to in clause 15.5 within a reasonable time, GCA may in its sole discretion terminate this Contract with immediate effect and pursue all remedies available to it under this Contract or any other agreement it has with the Supplier, or at law for breach by the Supplier of this Contract.
16.1 GCA does not guarantee or make any representation to the Supplier that it will acquire any minimum volume of Goods or Services under the Contract and GCA will not be liable to the Supplier for any costs, expenses or losses incurred or suffered by the Supplier arising directly or indirectly out of the amount of Goods or Services GCA orders from the Supplier.
17.1 In this clause:
(a) the expressions Consideration, GST, Input Tax Credit, Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999 (GST Act); and
(b) GST Supplier means any party treated by the GST Act as making a Supply under this Contract.
17.2 Unless otherwise expressly stated, all prices or other sums payable or Consideration to be provided under or in accordance with this Contract are inclusive of GST.
17.3 If GST is imposed on any Supply made under or in accordance with this Contract, the Recipient of the Taxable Supply must pay to the GST Supplier an amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply at or before the time of payment.
17.4 Payment of the relevant amount must be made at the same time as payment for the Taxable Supply is required to be made under this Contract.
17.5 If this Contract requires a party (the First Party) to pay for, reimburse, set off or contribute to any expense, loss or outgoing (Reimbursable Expense) suffered or incurred by the other party (the Other Party), the amount required to be paid, reimbursed, set off or contributed by the First Party will be the sum of:
(a) the amount of the Reimbursable Expense net of Input Tax Credits (if any) to which the Other Party is entitled in respect of the Reimbursable Expense (Net Amount); and
(b) if the Other Party's recovery from the First Party is a Taxable Supply, any GST payable in respect of that Supply,
so that after the Other Party meets the GST liability, it retains the Net Amount.
18. SET OFF
18.1 Without derogating from GCA's other rights under the Contract or at law (including its right to claim for damages), GCA may set off against any amounts owing by it to the Supplier all direct and indirect actions, proceedings, penalties, fines, losses, damages, claims, liabilities, costs (including legal costs) and expenses whatsoever that GCA may incur or suffer directly or indirectly, arising out of or in connection with:
(a) engaging another supplier (under clauses 8.3(b) and 11.4) to supply the Goods or Services;
(b) any act or omission of the Supplier;
(c) any breach of the Contract;
(d) any Non-Compliant Goods and Non-Compliant Services; and
(e) any breach by the Supplier of any other legislation or regulation applicable to the supply of the Goods.
19.1 The Supplier shall take all reasonable care to ensure that the Delivery and provision of the Goods and Services does not disrupt the operations of GCA, its employees or other contractors or Suppliers and provide reasonable cooperation to any other supplier of GCA where the Goods or Services provided by such other Supplier interface with or relate to the Goods and Services.
19.2 Should a disruption occur in GCA's sole and absolute opinion, GCA may set off, deduct or otherwise claim the direct cost of such disruption to GCA or any other supplier of GCA, reasonably determined by GCA and at its sole discretion, from any amount owing to the Supplier.
20.1 GCA may terminate the Contract if:
(a) the Supplier breaches any obligation under the Contract and such breach is incapable of being remedied, or if capable of being remedied such breach is not remedied within ten Working days after the Supplier is notified of the breach;
(b) the Supplier undergoes a Change of Control;
(c) the Supplier is given a notice deregistration under sections 601AA(5) or 601AB(5) of the Corporations Act;
(d) the Supplier ceases or threatens to cease to carry on business or a substantial part of it;
(e) the Supplier is subject to an Insolvency Event;
(f) any representation, warranty or statement made or repeated by the Supplier in or in connection with this Contract is untrue or misleading in any respect (including by omission) when so made or repeated;
(g) the Supplier assigns or transfers any of its rights or obligations under the Contract in breach of clause 22; or
(h) an event set out in clause 27.1 occurs.
20.2 Termination of the Contract shall not affect any rights or remedies each party may have accrued before the date of termination.
21. CONSEQUENCES OF EXPIRY OR TERMINATION
21.1 Subject to clauses 21.2, 21.3 and 21.4, on the expiry or termination of this Contract, this Contract is at an end as to its future operation except for the enforcement of any right or Claim that arises on, or has arisen before, the expiry or termination.
21.2 If this Contract expires or is terminated for any reason then all outstanding accepted purchase orders that remain undelivered at the date of expiry or termination are also terminated as at that date unless otherwise directed by GCA.
21.3 On termination or expiry of this Contract the Supplier must refund to GCA within ten Working days of the date of termination all money paid by GCA in respect of any Goods and Services which were to be supplied to GCA after the date of termination and which will not be supplied.
21.4 Clauses surviving termination
(a) Despite any other provision of this Contract, this clause 21 and clauses 32 (Interpretation), 10 (Personal Properties Securities Register), 13 (Warranties), 14 (Liability), 15 (Intellectual Property Rights), 24 (Confidentiality), 23 (Disputes) and 25 (General) survive the expiry or termination of this Contract.
(b) In addition to the specific clauses referred to in clause 21.4(a), the obligations under this Contract which are expressed to or, by their nature, survive expiry or termination of this Contract, will survive expiry or termination of this Contract and are enforceable at any time at law or in equity.
22. ASSIGNMENT AND SUB-CONTRACTING
22.1 The Supplier shall not assign or transfer or otherwise subcontract the whole or any part of its rights or obligations under the Contract without GCA's prior written consent. The entry by the Supplier into a subcontract shall not relieve the Supplier from liability for the performance of any obligations under the Contract. The Supplier is liable to GCA for the acts and omissions of each of its subcontractors as if they were acts or omissions of the Supplier.
22.2 GCA may assign or transfer or otherwise subcontract the whole or any part of its rights or obligations under the Contract without the Supplier's prior written consent.
23.1 The parties will meet and discuss in good faith any disputes between them arising out of the Contract.
23.2 If the discussions referred to in clause 23.1 fail to resolve the relevant dispute within twenty Working days of the dispute arising, any party may (by written notice to the other parties) require that the dispute be submitted for mediation by a single mediator that is administered by the Australian Commercial Disputes Centre (ACDC) in accordance with the ACDC Guidelines for Commercial Mediation, which Rules are taken to be incorporated into this Contract.
In the event of any such submission to mediation:
(a) the mediator will be deemed to be not acting as an expert or an arbitrator;
(b) the mediator will determine the procedure and timetable for the mediation.
23.3 The cost of the mediation will be shared equally between the parties to the dispute.
23.4 If the dispute has not been resolved within twenty Working days of the mediator being appointed or such longer period agreed in writing by the parties then the parties agree to refer the dispute to arbitration administered by ACDC in accordance with, and subject to, the ACDC Rules for Arbitration (Arbitrator).
23.5 The parties agree to be bound by the award of the Arbitrator.
23.6 Pending final settlement of any dispute, the parties shall continue to perform their obligations under the Contract so far as possible as if no dispute had arisen.
23.7 A party may not commence court proceedings in respect of a dispute unless it has complied with this clause 23 and until the procedures in this clause 23 have been followed in full, except where:
(a) the party seeks injunctive relief in relation to a dispute from an appropriate court; or
(b) following those procedures would mean that a limitation period for a cause of action relevant to the issues in dispute will expire.
24.1 Each party agrees that it will not without the prior written consent of the other use Confidential Information or disclose Confidential Information to any person other than those of its officers, employees and advisers essential to the implementation of the provisions contained in it or as required by law.
24.2 Each party shall use its best endeavours to ensure those of its officers, employees and advisers to whom Confidential Information is disclosed in terms of clause 24.1 are aware of and comply with the confidentiality obligations imposed by that clause.
24.3 If a party is required by law to disclose any Confidential Information it will immediately, and prior to such disclosure, advise the other party.
24.4 The obligations under this clause shall survive termination or cancellation of this agreement.
24.5 Except as required by law, neither of the parties shall make any announcement or disclosure relating to the existence of the Contract or its subject matter or terms except in such form and manner, and at such time as the parties agree.
25.1 Each notice, agreement and other communication (each a "communication") to be given, delivered or made under the Contract is to be in writing but may be sent by personal delivery, post (by airmail if to another country) or email.
25.2 Each communication under the Contract is to be sent to the address or facsimile number of the relevant party set out below or to any other address from time to time designated for that purpose by at least five Working days’ prior notice to the other. The initial details of the parties are:
As notified in writing to GCA.
General Cable Australia Pty Ltd:
Suite 3, Level 1, 205-211 Forster Road
25.3 A communication under the Contract will only be effective:
(a) in the case of personal delivery, when delivered;
(b) if posted or delivered to a document exchange, five Working days, in the place of receipt, after posting (by airmail if to another country) or delivery to the document exchange; and
(c) if made by email, on the date and time at which it enters the recipient's information system (as shown in a confirmation of delivery report from the sender's information system, which indicates that the email was sent to the email address of the recipient designated for the purposes of the Contract),
provided that any communication received or deemed received after 5pm or on a day which is not a Working day shall be deemed not to have been received until the next Working day.
All the original rights, powers, exemptions and remedies of GCA shall remain in full force notwithstanding any neglect, forbearance or delay in the enforcement thereof. GCA shall not be deemed to have waived any condition unless such waiver shall be in writing under signature of GCA or an authorised officer thereof and any such waiver, unless the contrary shall be expressly stated, shall apply to and operate only in particular transaction, dealing or matter.
27. FORCE MAJEURE
27.1 No party will be liable for failure to perform its obligations if the failure results from Force Majeure.
28. NO PARTNERSHIP/AGENCY
28.1 Nothing contained in the Contract is deemed to constitute the parties partners nor, except as otherwise expressly provided in the Contract constitute any party the agent or legal representative of another party. No party has authority to act or to assume any obligation or liability on behalf of any other party except as expressly provided in the Contract.
29. LAW AND JURISDICTION
29.1 This Agreement is governed by and must be construed in accordance with the laws in force in Victoria.
29.2 The parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to this Agreement, its performance or subject matter.
If any of the provisions of the Contract, or the application of them to any person or circumstance, shall to any extent be invalid or unenforceable, the same shall, to such extent only, be severable and the remainder of the Contract or the application of any such term or provision to persons or circumstances other than those in respect of which it is being held invalid or unenforceable shall not be affected thereby and each term and provision of the Contract shall be valid and enforceable to the fullest extent permitted by the law.
31. UNITED NATIONS CONVENTION ON CONTRACTS
Where there is any inconsistency between the provisions of the United Nations Convention on Contracts for the International Sale of Goods (as enacted by Sale of Goods United Nations Convention Act 1994) and the terms of these terms and conditions between the parties, the terms of the Conditions of Purchase shall prevail.
32.1 In these Conditions of Purchase:
'Associate' has the same meaning as "associate" in the Corporations Act and includes a person deemed to be an associate of a designated body (within the meaning of section 12 of the Corporations Act).
'Claim' includes a claim, notice, demand, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to this Contract or otherwise.
'Change of Control' means, in relation to a body corporate, the occurrence of an event or circumstance where a person who is not presently able to do any of the following things becomes able to do one of the following things (whether alone or together with any Associates and whether directly or indirectly or through one or more intervening persons, companies or trusts):
(a) control the composition of more than one half of the body's board of directors;
(b) be in a position to cast, or control the casting of, more than one half of the maximum number of votes that might be cast at a general meeting of the members of the body or its ultimate holding company; or
(c) hold or have a beneficial interest in more than one half of the issued share capital of the body or its ultimate holding company.
‘Confidential Information’ means:
(a) the existence of the Contract, its subject matter and the terms and conditions contained in it;
(b) any information belonging or relating to a party to this Contract, whether oral, graphic, electronic, written or in any other form (Information) which is not public knowledge and which is obtained from the other party pursuant to or in the course of the negotiation or implementation of the Contract; and
(c) any Information that is, or should reasonably be regarded as, confidential to the party to whom it belongs or relates.
'Conditions of Purchase' means these conditions of purchase including any background, schedules and annexures.
‘Contract’ means these Conditions of Purchase together with each purchase order and confirmation of order submitted in accordance with these Conditions of Purchase from time to time.
'Corporations Act' means the Corporations Act 2001 (Cth).
‘Delivery’ occurs on the earlier of the date on which:
(a) the Goods are delivered to the premises (or agent's premises) nominated by GCA in the relevant purchase order; and
(b) the Goods are signed for by GCA (or its agent) as having been received in full,
and ‘Delivered’ has a corresponding meaning.
(i) legal or equitable interest or power created, arising in or reserved in or over an interest in any property or asset; or
(ii) security for payment of money, performance of obligations or protection against default (including a mortgage, bill of sale, charge, lien, pledge, trust, power or retention of title arrangement, right of set-off, assignment of income, garnishee order, monetary claim and flawed deposit arrangement);
(b) any thing or preferential interest or arrangement of any kind giving a person priority or preference over claims or other persons with respect to any property or asset;
(c) a PPSA Security Interest; or
(d) any agreement or arrangement (whether legally binding or not) to grant or create anything referred to in paragraphs (a), (b) or (c).
'Force Majeure Event' means any act, event or cause including:
(a) an act of God, peril of the sea, accident of navigation, war, sabotage, riot, act of terrorism, insurrection, civil commotion, national emergency (whether in fact or law), martial law, fire, lightning, flood, cyclone, earthquake, landslide, storm or other adverse weather conditions, explosion, power shortage, strike or other labour difficulty (whether or not involving employees of the party concerned), epidemic, quarantine, radiation or radioactive contamination; or
(b) an action or inaction of a Government Agency, including expropriation, restraint, prohibition, intervention, requisition, requirement, direction or embargo by legislation, regulation, decree or other legally enforceable order,
to the extent that the act, event or cause directly results in a party (Affected Party) being prevented from or delayed in performing one or more of its material obligations under this Contract and that act, event or cause is beyond the reasonable control of the Affected Party.
'GCA' means General Cable Australia Pty Ltd ACN 008 553 660.
‘Goods’ means the goods (if any) set out in a purchase order to be supplied by the Supplier to GCA on the terms set out in the Contract.
'Government Agency' means any government or any public, statutory, governmental (including a local government), semi-governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute.
'Insolvency Event' means where the Supplier suspends or ceases to conduct its principal business or threatens to do so; becomes or is presumed to be insolvent; makes or proposes to make any assignment, arrangement, compromise or composition with, or for the benefit of, any of its creditors; has any of its assets subject to any form of seizure or execution; has a receiver, liquidator, administrator, statutory manager or any similar insolvency administrator appointed; has a controller (as defined in the Corporations Act) or analogous person appointed to it or any of its property; or suffers any analogous event.
‘Intellectual property’ includes copyright, and all rights conferred under statute, common law or equity in relation to inventions (including patents), registered and unregistered trademarks, registered and unregistered designs, circuit layouts, Confidential Information, know-how, and all other rights resulting from intellectual activity in all fields, together with all right, interest or licence in or to any of the foregoing.
'Liability' includes all liabilities, losses, damages, costs, interest, fees, penalties, fines, assessments, forfeiture and expenses of whatever description (whether actual, contingent or prospective).
'Personnel' means the employees, officers, agents and contractors of a person.
'PPSA Security Interest' means a security interest as defined in the Personal Property Securities Act 2009 (Cth) as amended from time to time.
‘Price’ means the price for the Goods and/or Services set out in the relevant purchase order.
‘Quote’ means a quote issued by the Supplier to GCA in relation to specific Goods and Services which GCA may purchase from the Supplier.
'Services' means the services (if any) set out in a purchase order to be provided by the Supplier to GCA on the terms set out in the Contract.
‘Specifications’ means the specifications to which GCA requires the Supplier to supply the relevant Goods or Services as set out or referred to in the applicable Quote or purchase order.
‘Specification change order’ means a request by GCA to the Supplier for the Supplier to change the Specifications of any Goods or Services the subject of a purchase order, in accordance with clause 3.
'Supplier' means the person supplying the Goods or Services to GCA.
‘Working day’ means a day other than a Saturday or Sunday, on which the banks in the location in which the Goods and Services are supplied are generally open for business.
32.2 Headings are used as a matter of convenience and shall not affect the interpretation of these conditions.
32.3 In the Contract unless the context requires otherwise:
(a) the singular includes the plural and vice versa and a gender includes the other genders;
(b) other grammatical forms of defined words or expressions have corresponding meanings;
(c) a reference to a document includes the document as modified from time to time and any document replacing it;
(d) if something is to be or may be done on a day that is not a Working day then it must be done on the next Working day;
(e) the word "person" includes a natural person, partnership, body corporate, association, governmental or local authority, agency and any body or entity whether incorporated or not;
(f) the words "in writing" include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient;
(g) a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re-enacted or replaced from time to time;
(h) wherever "include", "for example" or any form of those words or similar expressions is used, it must be construed as if it were followed by "(without being limited to)"; and
(i) money amounts are stated in Australian currency unless otherwise specified.