Purchase Orders Terms and Conditions

These are Dairy Australia’s terms and conditions which apply to the provision of goods and services to be delivered under a purchase order issued by Dairy Australia.

DEFINITIONS

1. The following definitions apply to these terms and conditions:

Dairy Australia means the party issuing the Purchase Order, being Dairy Australia Limited ACN 105 227 987, or any one of the Regional Development Programs being Dairy NSW, DairyTas, GippsDairy, Murray Dairy, Subtropical Dairy, Western Dairy, WestVic Dairy, as indicated on the Purchase Order.

Defective means Goods or Services (or any aspect of them) which are supplied not in accordance with this Agreement, or which are damaged, deficient, faulty, inadequate or incomplete.

Delivery Address means the location, if any, where any Goods and / or Services are to be delivered as described in the Purchase Order, or if not indicated in the Purchase Order, as advised by Dairy Australia acting reasonably.

Delivery Date means any dates and timelines which the Goods and/or Services are to be delivered as detailed in the Purchase Order or if not indicated in the Purchase Order, as advised by Dairy Australia acting reasonably.

Fees means the dollar amount in $AUD (excluding GST) for the Goods and/or Services specified in the Purchase Order.

Force Majeure Event means, to the extent beyond its reasonable control: natural catastrophes, accident, riots, war, terrorist act, epidemic, pandemic (including the Covid-19 pandemic), quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, governmental acts or omissions, changes in laws or regulations, national strikes, fire, explosion, or generalized lack of availability of raw materials or energy. For the avoidance of doubt, a Force Majeure Event shall not include (a) financial distress nor the inability of either party to make a profit or avoid a financial loss, (b) changes in market prices or conditions, or (c) a party's financial inability to perform its obligations.

Goods means the goods, if any, described in the Purchase Order.

GST has the meaning given to that term under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Law means any statute, regulation, by-law, ordinance or subordinate legislation in force from time to time, the common law and equity as applicable from time to time and any applicable industry standards and codes of conduct.

Purchase Order means a document ordering Goods and/or Services issued by Dairy Australia to the Supplier from time to time containing, among other things, a description of the Goods and/or Services.

Services means the services, if any, described in the Purchase Order.

Supplier means the party noted in the Purchase Order which is to deliver the Goods and/or Services pursuant to the Purchase Order and includes any of its officers, employees, agents, contractors and sub-contractors delivering the Goods and/or Services.

Transaction Tax means all applicable taxes (including a GST equivalent tax, such as VAT), sales taxes, levies, duties, charges, deductions and withholdings and similar amounts imposed by law or by any government agency, other than amounts charged on net income.

SUPPLY OF GOODS AND / OR SERVICES

2. In consideration of payment of the Fees by Dairy Australia, the Supplier agrees to supply to Dairy Australia the Goods and/or Services in accordance with this Agreement.

3. The Supplier is taken to have accepted this Agreement if they notify Dairy Australia that they accept a Purchase Order or supply the Goods and/or Services described in the Purchase Order.

4. This Agreement:

(a) forms the terms and conditions of the agreement to supply the Goods and/or Services; and

(b) cannot be waived, varied or modified in any way without the express written consent of both parties.

This Agreement will however not supersede or replace any existing long-form contract executed by authorised signatories of the Supplier and Dairy Australia which specifically covers the Goods and/or Services to which a Purchase Order relates.

5. If the Supplier does not accept this Agreement, they must notify Dairy Australia within 10 business days and prior to delivery. The Supplier may propose a variation to this Agreement via the Purchase Order, but any changes must first be approved in writing by Dairy Australia before delivery. Failing such written approval, Dairy Australia may reject the Goods and/or Services.

6. If there is inconsistency between the provisions of the Purchase Order and these terms and conditions, the Purchase Order prevails to the extent of that inconsistency.

7. The parties agree that any Supplier standard terms and conditions which are not specifically drafted to amend these terms and conditions via the Purchase Order, and/or are, for example, included by website reference, will be void and unenforceable.

8. If Dairy Australia wishes to change a Purchase Order, it may do so at any time before delivery of the Goods and/or Services by reasonable prior written notice to the Supplier. If the Supplier, acting reasonably, does not agree to the change, the Supplier may cancel the Purchase Order and Dairy Australia will pay the Supplier for Goods and/or Services delivered in accordance with this Agreement and any reasonable costs which the Supplier has unavoidably incurred in order to deliver Goods and/or Services.

GENERAL

9. The Supplier must, in delivering the Goods and/or Services:

(a) comply with:

(i) all applicable Law; and

(ii) all reasonable lawful directions and orders given by Dairy Australia's representatives.

(b) ensure that Supplier is properly qualified for, and skilled in, the performance of its tasks and does not prejudice:

(i) safe work practices;

(ii) safety and care of property; and

(iii) continuity of work.

PERFORMANCE ON SITE

10. When accessing Dairy Australia's premises, the Supplier must:

(a) comply with all onsite policies and procedures applicable to where the Goods and/or Services are delivered, including policies and procedures relating to work health and safety, and security;

(b) complete any safety and / or other training or induction necessary for the delivery of the Goods and/or Services;

(c) only access Dairy Australia's premises in the manner and at the time of day as directed by Dairy Australia upon request by the Supplier; and

(d) to the extent that the Supplier accesses the premises, ensure the premises are left secure, clean and tidy.

TIME FOR DELIVERY OF GOODS AND / OR SERVICES

11. The Supplier must deliver the Goods and/or Services to the Delivery Address by the Delivery Date. Unless agreed otherwise, time is of the essence with respect to the Delivery Date.

12. The Supplier must notify Dairy Australia immediately in writing if the delivery of the Goods and/or Services, is likely to be delayed in any way.

13. If the Supplier gives notice under clause 12 of a delay caused by the Supplier, Dairy Australia may, acting reasonably (and without limiting its rights at law):

(a) extend the time for delivery of the Goods and/or Services, by confirming a later Delivery Date (noting that Dairy Australia is not required to do so for the benefit of the Supplier); or

(b) refuse to take delivery of the delayed Goods and/or Services, without liability to Dairy Australia and immediately terminate the Purchase Order by providing written notice; and

(c) the Supplier will be liable to Dairy Australia for any demonstrable loss, cost, expense, and damage suffered by Dairy Australia arising out of or in connection with such delay.

GOODS DELIVERY CONDITIONS

14. The Supplier must ensure:

(a) the Goods delivered correspond with the Goods ordered;

(b) the Goods are suitably packed to avoid damage in transit or storage; and

15. Where the Supplier delivers any Goods in excess of the quantity specified in the Purchase Order, Dairy Australia reserves the right to return the excess Goods at the risk and reasonable expense of the Supplier.

ACCEPTANCE

16. Payment of an invoice is not to be taken as evidence that the Goods and/or Services have been supplied in accordance with this Agreement but must be taken only as payment on account.

17. Dairy Australia may, by providing written notification to the Supplier, reject the Goods and / or Services within 20 business days after delivery or such longer period as agreed to in writing by the parties (Acceptance Period) if the Goods and / or Services are Defective.

18. If Dairy Australia does not notify the Supplier of a rejection of the Goods / Services within the Acceptance Period, Dairy Australia will be taken to have accepted the Goods / Services.

GOODS WARRANTY

19. The Supplier warrants to Dairy Australia that the Goods:

(a) are fit for the purpose for which the Goods, or Goods of the same kind, are usually acquired and for any other purposes which Dairy Australia made known to the Supplier;

(b) will function and perform in all respects as represented by the Supplier in any written correspondence or document;

(d) comprise of new and unused components (unless indicated otherwise in the Purchase Order);

(e) are of merchantable quality;

(f) are free from all faults and defects;

(g) do not, and Dairy Australia's use of the Goods will not, infringe any intellectual property rights of any third party;

(h) are free of any third party or other security interests; and

(i) comply with all relevant Law.

DEFECTIVE GOODS

20. If the Goods are Defective, Dairy Australia may, without limitation to any other rights it may have, and at its sole discretion:

(a) return the Goods and require the Supplier to repair or resupply the Goods at the Supplier's expense; or

(b) return the Goods and require the Supplier to provide a refund of any Fees paid by Dairy Australia to the Supplier.

21. If Defective Goods are returned to the Supplier, the Supplier must refund Dairy Australia for any reasonable expenses incurred by Dairy Australia in returning such Defective Goods.

SERVICES WARRANTY

22. The Supplier warrants to Dairy Australia that the performance of the Services will:

(a) comply with every aspect of the Services' description in the Purchase Order;

(b) be delivered in all respects as represented by the Supplier in any written correspondence or document;

(d) be professionally performed with all due care and skill; and

(e) comply with all relevant Law.

DEFECTIVE SERVICES

23. If the Services, or part of the Services, are Defective, Dairy Australia may, without limitation to any other rights it may have, and at its sole discretion:

(a) require the Supplier to resupply or remedy the Defective Services at the Supplier's expense; or

(b) require the Supplier to provide a refund of any money paid by Dairy Australia to the Supplier on a pro-rata basis with respect to the Defective Services.

INDEMNITY

24. Each party (Indemnifier) indemnifies the other Party (Indemnified Party) against all claims and actions which may be brought against the Indemnified Party arising out of:

(a) any material breach of this Agreement by the Indemnifier and its officers, employees, agents, and subcontractors; or

(b) any unlawful or negligent act or omission by the Indemnifier and its officers, employees, agents, and subcontractors in connection with this Agreement.

25. The Indemnifier’s liability to indemnify the Indemnified Party will be reduced proportionally to the extent that any negligent act or omission, or material breach of this Agreement by the Indemnified Party contributed to the loss or liability.

26. Neither party will be liable for any special, exemplary, punitive or consequential loss or damage (including without limitation, loss of profit, loss of opportunity and loss of goodwill) incurred by the other party either directly or indirectly in connection with this Agreement.

GST

27. If GST is imposed on any supply made by the Supplier under or in connection with this Agreement, the Fees are inclusive of GST unless otherwise expressly stated in the Purchase Order.

INTERNATIONAL TRANSACTIONS

28. This clause only applies where the Supplier is not a resident of Australia and does not conduct an enterprise in Australia. The Supplier is solely responsible for paying any Transaction Tax and other payments incurred in acquitting tax and legal liabilities in its country of residence that relate to the supply of the Goods and/or Services (in their country or Australia), unless otherwise agreed in writing by the parties. The Supplier acknowledges that they rely on their own independent investigation, professional and other tax, legal and accounting advice, and risk assessment in connection with this Agreement.

INVOICING & PAYMENT

29. Unless agreed otherwise in the Purchase Order, the Supplier must promptly provide Dairy Australia with a duly rendered tax invoice upon delivery of the Goods and/or Services.

30. The invoice must include the following details:

(a) the Supplier’s ABN (if the Supplier is Australian);

(b) the Supplier’s invoice reference number;

(d) the Supplier’s contact details;

(e) a description of the delivered Goods and/or Services;

(f) the Fees relating to the Goods and/or Services, including any Fee breakdown in the Purchase Order; and

(g) the amount of any applicable GST.

31. If Dairy Australia requests, acting reasonably, the Supplier must provide Dairy Australia will all relevant records and information to verify the amount set out in any Supplier invoice.

32. Dairy Australia is not obliged to pay for any Goods and/or Services which are Defective or not supplied, or any part of the Goods and/or Services which are Defective or not supplied.

33. Dairy Australia will pay all invoices within 30 days of receipt of the duly rendered Supplier invoice (regardless of any contradictory payment term set out in the Supplier invoice).

34. Dairy Australia will not be liable for any additional fees, costs or expenses which have not been agreed to in writing prior to being incurred.

TERMINATION

35. Each party may terminate this Agreement where the other party is in material breach of any provision of this Agreement, and the breach is not capable of remedy or, where the breach is capable of remedy, they fail to remedy that breach within 10 business days written notice specifying the breach and the intention to terminate if the breach is not remedied.

36. Either party may terminate this Agreement for convenience by giving one month’s written notice to the other party.

37. Either party may terminate this Agreement by giving not less than 30 days written notice to the other party if a Force Majeure Event continues for more than 14 days starting from the day the Force Majeure Event starts.

38. On termination for any reason:

(a) the Supplier must stop work as specified in a written notice and both parties must take all available steps to minimise loss arising from the termination;

(b) subject to clause 39, Dairy Australia will only be liable to pay Fees for Goods and/or Services delivered (on a pro-rata basis in the case of partial delivery of Goods and/or Services); and

(c) any upfront Fees paid for Goods and/or Services not delivered must be refunded to Dairy Australia (on a pro-rata basis in the case of partial delivery of Goods and/or Services).

39. If Dairy Australia terminates this Agreement for convenience, Dairy Australia must also pay the Supplier any unavoidable and substantiated costs incurred by the Supplier as a direct result of the termination.

CONFIDENTIALITY

40. If in the performance of this Agreement or otherwise, a party obtains or becomes aware of any sensitive or confidential information relating to the other party, the receiving party must not without the disclosing party’s prior written consent, disclose any such information to any person except:

(a) to the extent as permitted by Law; or

(b) as required for the delivery of the Goods and/or performance of the Services.

PRIVACY

41. If the Supplier collects or is provided any personal information from Dairy Australia in connection with this Agreement, the Supplier must comply with the Privacy Act 1988 (Cth) and Dairy Australia’s Privacy Policy.

INTELLECTUAL PROPERTY

42. The Supplier:

(a) assigns to Dairy Australia all intellectual property in any documents, data, code, or other materials which are specifically created for Dairy Australia and delivered to Dairy Australia in accordance with this Agreement; and

(b) grants to Dairy Australia a fee-free, world-wide, irrevocable licence to use any pre-existing intellectual property incorporated into any such materials.

INSURANCE

43. Except where otherwise agreed in writing by the parties, the Supplier must effect and maintain adequate insurances, including workers’ compensation insurance as required by Law and such other insurance policies that a prudent person supplying and delivering the Goods and/or Services would obtain and maintain including, without limitation, insurance policies for goods in transit and product liability insurance in the case of Goods, to cover the performance of their obligations under this Agreement.

44. On reasonable request, the Supplier must provide written proof of currency of such insurance to Dairy Australia.

INFORMATION TECHNOLOGY

45. The Supplier will not knowingly or negligently damage or destroy any part of Dairy Australia's data, networks, platforms, systems, devices, or computers, or knowingly or negligently introduce any viruses or similar programming effects into the same.

CONFLICT OF INTEREST

46. The Supplier must declare any actual or perceived conflicts of interest that exist or might arise, or that no conflicts of interest exist or are anticipated relevant to the performance of its obligations under this Agreement. If any conflict or potential conflict arises during the provision of the Goods and/or Services, the Supplier will immediately notify Dairy Australia and comply with any reasonable written notice given to the Supplier by Dairy Australia to address or manage such conflict.

DISPUTE RESOLUTION

47. Any disputes between the Supplier and Dairy Australia shall be dealt with as follows:

(a) the parties must use their best efforts to resolve any dispute in good faith without involving other parties; and

(b) the parties may at any time give written notice to the other party requesting that a meeting take place to resolve the dispute. If such notice is given, nominated senior representatives of both parties must meet within 5 business days of the notice and endeavour to resolve the dispute in good faith. If such a meeting does not take place, or if after 10 business days of the meeting the dispute remains unresolved, either party may pursue their rights at law.

GOVERNING LAW

48. This Agreement is to be interpreted in accordance with the laws of the State of Victoria and each party irrevocably submits to the jurisdiction of the courts of the State of Victoria.

SEVERANCE

49. If any provision of this Agreement is invalid or unenforceable, the provision in question is to be read down or severed to the extent of the invalidity or unenforceability which will not affect the remaining provisions.

ASSIGNMENT

50. The Supplier may not assign or novate its rights and obligations under this Agreement without Dairy Australia's prior written consent.

EXCLUSIVITY AND MINIMUM PURCHASE

51. Nothing in this Agreement imposes an obligation of exclusivity on Dairy Australia. Dairy Australia may engage a third party to provide any combination of goods and services of the same nature as the Goods and/or Services in addition to or in place of Supplier at any time and from time to time.

52. Dairy Australia has no obligation to purchase a minimum volume, or any particular volume of Goods and/or Services from Supplier.

FORCE MAJEURE

53. Neither party will be liable for any failure or delay in performing an obligation under this Agreement that is due to a Force Majeure Event.

SURVIVAL

54. Clause 19 (Goods Warranty), clauses 20 and 21 (Defective Goods), clause 22 (Services Warranty), clause 23 (Defective Services), clauses 24 to 26 (Indemnity), clauses 29 to 34 (Invoicing & Payment), clause 38 and 39 (Termination), clause 40 (Confidentiality), clause 41 (Privacy), clause 42 (Intellectual Property), clause 47 (Dispute Resolution), clause 48 (Governing Law), clause 49 (Severance), and clause 54 (Survival) survive the expiration or termination of this Agreement.

These Terms and Conditions apply to all Purchase Orders issued on or after 9 November 2023.

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