Purchase Order – Terms and Conditions

1. Application of the Terms and Conditions

1. These terms and conditions apply to an order of goods (“Goods”) and/or services (“Services”) placed by Victor Chang Cardiac Research Institute (“VCCRI”) as described in the attached purchase order ("Purchase Order") with the supplier of the Goods and/or Services ("Supplier”). Capitalised terms in this document not otherwise defined shall have the meaning given in clause 20.

1.1. Upon the Supplier's acceptance of a Purchase Order, the Supplier agrees to comply with these Terms and Conditions.

1.2. The Supplier agrees that any terms and conditions which may generally apply to its supply of goods and/or services to other parties do not apply to the supply of the Goods and/or Services to VCCRI notwithstanding the fact that any Quote, invoice, receipt or other document issued to VCCRI states otherwise except where:

(a) VCCRI first provides its agreement in writing; or

(b) these Terms and Conditions are replaced by a longer form agreement agreed between the Parties in which case the terms of that agreement will apply between the Parties.

1.3. These Terms and Conditions are to be read as in addition to any other terms specified by VCCRI in the Purchase Order and/or any attachment to it that is expressly incorporated in writing. If there is any inconsistency between the Purchase Order and these Terms and Conditions, these Terms and Conditions prevail to the extent of that inconsistency.

1.4. When the Supplier accepts a Purchase Order, a binding agreement is formed between the parties for the supply of the Goods and/or Services stated in the Purchase Order, and the terms of that agreement are made up of the Purchase Order and these Terms and Conditions (“Agreement”).

1.5. These Terms and Conditions may be amended periodically, and you will be deemed to have accepted any amendments if you adopt a Purchase Order after those amendments have been posted or published.

2. Engaging the Supplier

2.1. VCCRI may request the Supplier to provide it with a Quote in respect of the Goods and/or Services.

2.2. Neither VCCRI's request for a Quote nor a Quote provided by the Supplier forms a contract or any other agreement between VCCRI and the Supplier.

2.3. If VCCRI accepts a Quote, VCCRI will issue a Purchase Order to the Supplier.

2.4. The Supplier is taken to accept the Purchase Order on these Terms and Conditions upon the earlier of it notifying VCCRI that it accepts the Purchase Order or the Supplier supplying or part supplying the Goods and/or Services to VCCRI.

3. General Obligations of the Supplier

3.1. The Supplier must supply everything necessary for the proper provision of the Goods and/or Services and will provide the Goods and/or Services:

(a) to the reasonable satisfaction of VCCRI;

(b) in accordance with these Terms and Conditions, including achieving the timeframes;

(c) with due skill, care and diligence and to a high professional standard;

(d) in accordance with all applicable laws (including but not limited to laws in relation to work health and safety and the environment) and relevant Australian standards and best practice guidelines.

3.2. The Supplier must comply with any requirements relating to the provision of Services as stated in the Purchase Order and all Goods must conform to any specifications relating to the Goods as stated in the Purchase Order.

3.3. The Supplier:

(a) must ensure that, when performing its obligations under the Agreement, it complies with all applicable Anti-Slavery Laws and relevant VCCRI policies, procedures or statements relating to anti-slavery;

(b) must provide, at its cost, all reasonable assistance (including the provision of information and access to documents, personnel and contractors) that VCCRI may require to enable VCCRI to comply with its obligations under the Anti-Slavery Laws;

(c) must immediately notify and provide full particulars to VCCRI upon becoming aware that the Supplier has or may have breached clause 3.3(a) or that it or any of its personnel or subcontractors have been found guilty by a court of, or have admitted guilt or accepted liability in relation to, a contravention of any Anti-Slavery Laws; and

(d) acknowledges that if it gives a notice to VCCRI under clause 3.3(a) VCCRI is entitled in its absolute discretion to terminate the Agreement pursuant to clause 17.

4. Performance and Delivery

4.1. The delivery of all Goods and the performance of all Services must be made at the time and place, and in the manner, stated in the Purchase Order.

4.2. VCCRI may reasonably specify in writing to the Supplier another time, place or manner for delivery of Goods or performance of Services, in which case that other time, place or manner applies in place of that stated in the Purchase Order.

4.3. The Supplier must ensure that Goods must be packed, marked and labelled to ensure their safe delivery and safe handling by VCCRI after delivery and, if specific packing, marking or labelling is required under the Purchase Order, comply with those requirements.

4.4. Time is of the essence.

5. Supply of Goods

5.1. Where the Purchase Order relates to the supply of Goods, the Supplier must ensure that the Goods are free of any Security Interest and that no Security Interest is registered on the Personal Property Securities Register.

5.2. The Supplier must deliver the Goods to the place specified by VCCRI and provide a delivery receipt and valid tax invoice.

5.3. VCCRI, acting reasonably, may reject any Goods that have not been supplied in accordance with the Purchase Order.

5.4. Where VCCRI rejects any Goods, VCCRI may direct the Supplier to promptly rectify any defects or re-supply any Goods at no additional cost to VCCRI, and the Supplier must promptly comply with such directions from VCCRI.

5.5. Without limiting any other warranty given by the Supplier, the Supplier represents and warrants that:

(a) the Goods are of merchantable quality;

(b) the Goods are free from defects;

(c) the Goods are fit for the specified purpose, or if no purpose is specified, the Goods are fit for the purpose for which goods similar to the Goods are normally acquired;

(d) the Supplier has all necessary approvals of any Government Agency or professional body to supply the Goods;

(e) the Goods meet all relevant Australian standards; and

(f) use of the Goods will not cause VCCRI to be in breach of any law.

6. Inspection and Acceptance of Goods

6.1. VCCRI may inspect the Goods at any time prior to acceptance and reject any Goods found not to be in accordance with these Terms and Conditions or the Purchase Order. After acceptance, VCCRI may reject any Goods for any non-conformity which could not have been discovered by reasonable inspection before acceptance.

6.2. VCCRI will not be liable to pay for any rejected Goods or for any damage or costs arising from inspection or rejection of Goods.

6.3. If VCCRI rejects any Goods, the Supplier must, without prejudice to VCCRI's rights otherwise arising under the Agreement or at law, comply with a requirement of VCCRI to:

(a) replace, without cost to VCCRI, the rejected Goods with Goods complying in all respects with the Agreement;

(b) refund any payment for the rejected Goods; or

(c) repair the Goods, on site or otherwise, to the satisfaction of VCCRI.

In the case of (a) or (b), the Supplier must remove the rejected Goods at the Supplier’s expense.

6.4. If VCCRI requires the Supplier to submit samples of Goods, the Supplier must not proceed to bulk fulfillment or manufacture until VCCRI has approved the samples in writing.

7. Ownership and risk

7.1. Ownership or title in the Goods passes to VCCRI on delivery or payment, whichever is earlier, except where VCCRI within a reasonable time after delivery notifies the Supplier that it rejects the Goods under clauses 5.3 or 5.4.

7.2. Risk of loss of, or damage to, the Goods passes to VCCRI on delivery of the Goods, except where VCCRI within a reasonable time after delivery notifies the Supplier under that it rejects the Goods clauses 5.3 or 5.4.

7.3. If the Goods are retaken by the Supplier, then title and risk of loss or damage passes back to the Supplier on removal from VCCRI's premises.

8. Supply of Services

Were the Purchase Order relates to the supply of Services, the Supplier must:

(a) complete the Services in accordance with any directions in the Purchase Order, or where there are no directions, within a reasonable period of time;

(b) meet relevant Australian standards and perform the Services with the degree of skill and care expected of a person experienced in performing the same or similar services;

(c) supply everything necessary for the proper performance of the Supplier's obligations;

(d) perform the Services to VCCRI's reasonable satisfaction;

(e) ensure that the Supplier and its personnel are appropriately qualified, competent and experienced and hold all necessary licences, permits and authorisations; and

(f) on completion of the Services, provide to VCCRI a valid tax invoice.

9. Compliance with Laws and Directions

The Supplier must, when using VCCRI's premises or facilities, comply with all applicable laws, all reasonable directions of VCCRI, and procedures and policies of VCCRI, including but not limited to those relating to work health and safety requirements (including any requirements of the Work Health and Safety Act 2011 (NSW)), and security in effect at those premises or in regard to those facilities, whether specifically drawn to the attention of the Supplier or as notified by VCCRI or as might reasonably be inferred.

10. Warranty

10.1. In addition to the warranties set out in clause 5.5 and without limiting any other warranty given by the Supplier, if VCCRI gives notice of any defect or omission discovered in the Goods and/or Services, the Supplier must correct that defect or omission without delay and at no cost to VCCRI.

10.2. The Supplier must meet all costs of, and incidental to, the discharge of warranty obligations, including any packing, freight, disassembly and reassembly costs.

11. Inclusive Price and GST

11.1. The price of the Goods and/or Services is the price set out in the Purchase Order. The price stated in the Purchase Order is firm and fixed (unless varied with the consent of VCCRI in writing) and includes:

(a) subject to clause 11.2, all taxes, duties and other imposts for which the Supplier is liable;

(b) all insurance costs;

(c) all amounts payable for the use thereof (whether in the course of manufacture or use of Intellectual Property Rights);

(d) all charges for supply of the Goods and/or Services; and

(e) all charges for testing, inspection, packing, delivery or otherwise.

11.2. Where GST is imposed on any supply made by the Supplier, VCCRI will, in addition to the price payable for the Goods and/or Services, pay an amount equal to the GST payable in respect of that supply.

12. Payment

12.1. VCCRI will pay to the Supplier the agreed amount for the Goods and/or Services as per VCCRI's standard payment terms of 30 days from the date of receipt of a correctly rendered tax invoice.

12.2. An invoice will be correctly rendered if it:

(a) is addressed in accordance with the Purchase Order;

(b) identifies the Purchase Order number;

(c) is, where explanation is necessary, accompanied by documentation substantiating the amount claimed; and

(d) is, where required by Australian law, a valid tax invoice within the meaning of A New Tax System (Goods and Services Tax) Act 1999 (Cth).

12.3. Where VCCRI, acting reasonably, disputes:

(a) the amount, or any part of the amount, to be paid to the Supplier; or

(b) the quality of the Goods and/or Services supplied,

VCCRI will notify the Supplier, and VCCRI is not obliged to pay any invoice until the dispute is resolved, except VCCRI may elect to pay any undisputed part of an invoice.

12.4. Payment is not to be taken as evidence that the Goods and/or Services have been supplied under the Agreement, but must be taken as payment on account only.

12.5. VCCRI reserves the right to set off any amount owing under the Agreement against any amount due by the Supplier to VCCRI for any reason whatsoever. This does not limit VCCRI's right to recover those amounts in other ways.

13. Intellectual Property Rights (“IPR”)

13.1. All IPR of the parties existing before the date of the Agreement will be retained by the relevant party.

13.2. The Supplier grants, and must procure the grant to VCCRI of, a perpetual, royalty-free, non-exclusive, irrevocable licence:

(a) to use any IPR to the extent necessary to receive the full use and benefit of the Goods and/or Services; and

(b) to sub-license the same to any person.

13.3. On reasonable request, a Party must sign all documents and do all things (including requiring its officers, employees and contractors to sign documents) as necessary or desirable to vest, confirm, perfect and record the IPR of a Party under clause 13.2.

14. Confidentiality

14.1. The Supplier must keep confidential all Confidential Information which the Supplier receives or comes across in the process of performing its obligations under the Agreement, unless:

(a) such disclosure is required by law or consented to by VCCRI;

(b) the information is disclosed to the Supplier's employees or professional advisers on a need-to-know basis solely for the purposes of the Agreement.

14.2. If the Supplier is required by any law to disclose Confidential Information, the Supplier must promptly (and in any case prior to disclosure) notify VCCRI in writing of the information and reasons for disclosure.

14.3. The obligations of the Parties under this clause are continuing obligations and survive after the Goods have been delivered and/or the Services have been completed.

15. Use of VCCRI's Name or VCCRI Trade Marks

The Supplier must:

(a) not use the name VCCRI or VCCRI Trade Marks without the written approval of VCCRI;

(b) not do or fail to do anything that is likely to prejudice:

(i) the reputation and goodwill associated with the VCCRI Trade Marks; or

(ii) the validity, enforceability or VCCRI's ownership of the VCCRI Trade Marks.

(c) subject to clause 15.1(a), not use the VCCRI Trade Marks in a manner that suggests that VCCRI endorses or is associated with the Supplier's business, products or services; and

(d) only use the name VCCRI or VCCRI Trade Marks in accordance with these Terms and Conditions.

16. Indemnity

16.2. The Supplier must indemnify and keep indemnified VCCRI and its officers, employees, agents and contractors ("those indemnified") against any loss, damage, liability, cost or expense (including legal expense) incurred or suffered by VCCRI:

(a) in connection with a breach of a warranty or clause of these Terms and Conditions by the Supplier;

(b) any negligent or unlawful act or omission of the Supplier or its personnel, agents, contractors or subcontractors in connection with these Terms and Conditions; or

(c) claimed by any third-party against VCCRI in connection with the Goods or Services.

16.2. The extent of the indemnity in clause 16.1 (c) shall be reduced proportionately to the extent that any loss is caused by the unlawful or negligent act of VCCRI.

17. Termination

17.1. Each Party may immediately terminate a Purchase Order at any time if:

(a) the other party has committed a material breach of these Terms and Conditions and such breach:

(i) is not capable of being remedied; or

(ii) is capable of being remedied but has not been remedied within 5 Business Days (or such other time as may be agreed between the Parties in writing) following the receipt of written notice from the party not in default; or

(b) the other party is insolvent or any step has been taken to appoint a receiver, a receiver and manager, an administrator, a liquidator, a provisional liquidator or like person of the whole or any part of the other party's assets or activities.

17.2. VCCRI may immediately terminate the Agreement by written notice to the Supplier if at any time VCCRI determines in its absolute discretion that the image, reputation or brand name of VCCRI has been or could be adversely affected by continuing to receive Goods or Services from the Supplier.

17.3. Either party may cancel a Purchase Order for any reason by giving not less than 10 business days’ written notice to the other party.

17.4. On termination of a Purchase Order:

(a) the Supplier must stop providing the Goods and/or Services;

(b) the Supplier must take all steps possible to mitigate any losses; and

(c) each party must return to the other party all documents, manuals, papers and equipment belonging to the other party and which are in that party's possession or control.

17.5. If a Purchase Order is terminated or partially terminated in accordance with the provisions of this clause 17, VCCRI will be liable only for:

(a) payment for the Goods and/or Services rendered before the effective date of termination; and

(b) reasonable costs incurred by the Supplier and directly attributable to the termination or partial termination of the Purchaser Order.

18. Insurance

18.1. The Supplier must, for so long as any obligations remain in connection with the Agreement, effect and maintain:

(a) all insurances required by any law; and

(b) insurance cover sufficient to cover any loss or costs that may be incurred and for which the Supplier is liable in connection with the supply of the Goods and/or Services, including, as applicable: product liability insurance, public liability insurance and professional indemnity insurance.

18.2. The Supplier will provide evidence of such insurance at the request of VCCRI.

19. General

19.1. The Terms and Conditions may only be varied or replaced by a document duly executed by the Parties.

19.2. The Agreement contains the entire understanding between the Parties as to their subject matter.

19.3. Neither Party has the power to obligate or bind the other Party.

19.4. The Supplier must not sell, transfer, novate, delegate, assign, license or subcontract any right or obligation under the Terms and Conditions to any person without the prior written consent of VCCRI.

19.5. 3.3, 10, 13, 14, 15, 16, 17, 18 and 19 survive the expiry or termination of the Agreement.

19.6. Each indemnity in the Terms and Conditions is a continuing obligation, separate and independent from the other obligations of the Parties, and survives the expiry or termination of the Agreement.

19.7. A Party's failure or delay to exercise a right under the Agreement does not operate to prejudice those rights.

19.8. The Parties must use reasonable endeavours to resolve any dispute under the Agreement by mediation or other alternative dispute resolution method before they commence legal proceedings (except proceedings for interlocutory relief).

19.9. The laws of New South Wales apply to the Agreement and the Parties submit to the exclusive jurisdiction of the courts of New South Wales.

20. Definitions

In the Terms and Conditions, unless expressed or implied to the contrary:

Agreement means these Terms and Conditions and the Purchase Order.

Anti-Slavery Laws means:

(a) Division 270 and 271 of the Criminal Code Act 1995 (Cth);

(b) the Modern Slavery Act 2018 (Cth); and

(c) any other Relevant Law which prohibits exploitation of a worker, human trafficking, slavery, slavery-like behaviour, servitude, forced labour, child labour, debt bondage or deceptive recruiting for labour or services (or similar), and is applicable in the jurisdiction in which VCCRI and the Supplier are registered or conduct business or in which activities relevant to the Agreement are to be performed.

Confidential Information means all information and materials, in any form, which comes into a Party's possession about the other Party pursuant to, or as a result of or in performance of activities contemplated by, the Terms and Conditions excluding information:

(a) which at the time of its first disclosure or observation under the Terms and Conditions was in the public domain;

(b) which, after disclosure or observation under the Terms and Conditions, comes into the public domain otherwise than by disclosure in breach of the Terms and Conditions;

(c) which is received by either Party from a third party who has the right to provide the information;

(d) which was already in the receiving Party's possession or knowledge without restriction prior to its disclosure or observation; or

(e) or which the disclosing Party is required by law to disclose.

Goods means the goods to be provided by the Supplier as specified in the Purchase Order.

Government Agency means a government or government department, a governmental, semi-governmental or judicial person or a person (whether autonomous or not) charged with the administration of any applicable law.

Intellectual Property Rights (IPR) includes, without limitation, all copyright and neighbouring rights, all rights in relation to inventions (including patent rights), plant varieties, registered and unregistered trade marks (including service marks), registered designs, Confidential Information (including trade secrets and know-how) and all necessary consents in relation to moral rights, semiconductor or circuit layout rights, trade, business or company names, or other proprietary rights, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields or any rights to registration of such rights existing in Australia or elsewhere, whether created before on or after the date of the Agreement.

Party means the Supplier or VCCRI and Parties means both the Supplier and VCCRI.

Personal Property Securities Register means the register established under the Personal Property Securities Act 2009 (Cth);

Quote means a written quote from the Supplier to VCCRI confirming receipt of an enquiry for the Goods and/or Services and setting out the price; an estimate of any expenses; any additional services to be provided by the Supplier; and any special conditions in respect of the particular Goods and/or Services requested by VCCRi.

Relevant Law includes orders and awards of any Government Agency, legislation, ordinances, rules, guidelines, regulations, by-laws and proclamations that may be applicable in connection with the performance of any work under the Agreement.

Security Interest means a security interest as defined in the Personal Property Securities Act 2009 (Cth);

Services means the services to be provided by the Supplier as specified in the Purchase Order.

Tax means a tax, levy, duty, charge, deduction or withholding, however it is described, that is imposed by law or by a Government Agency, together with any related interest, penalty, fine or charge (other than one that is imposed on taxable income in Australia).

Terms and Conditions means this document.

VCCRI means Victor Chang Cardiac Research Institute Limited ABN 61 068 363 235.

VCCRI Trade Marks means any brands, names, slogans, logos, devices and other indicia however described, which are capable of distinguishing VCCRI’s products or services from the products or services of others.