a. "Agreement" means the contract between Ego and Supplier evidenced by the Ego’s Purchase Order and these Terms and Conditions of Purchase.
b. “Business Day” means a day that is not a Saturday, a Sunday or a public holiday or bank holiday in the state of Victoria.
c. “Conditions” means these terms and conditions of purchase and any variations agreed in writing by Ego and the Supplier.
d. "Ego" means Ego Pharmaceuticals Pty Ltd ABN 86 005 142 361, the registered office of which is situated at 21-31 Malcolm Road, Braeside, Victoria 3195; and any related body corporate (within the meaning of section 50 of the Corporations Act 2001) as specified in the Purchase Order.
e. "Goods and/or Services" means the goods and/or services set out in the Purchase Order.
f. “GST” means any tax including any additional tax imposed on the supply of or payment for goods or services which is imposed or assessed under any GST Law.
g. “GST Law” means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and all related and auxiliary legislation.
h. “Orders”: Ego may from time to time request Supplier to supply it with Goods and or Services.
1. All orders will be placed by Ego in writing using its Purchase Order form or such other form as may be reasonably required by Ego from time to time.
2. Supplier must confirm acceptance of each order or notify any reason for non-acceptance in writing within five (5) Business Days of receipt. All orders which are not responded to within that period of five (5) Business Days will be deemed to have been accepted by Supplier.
3. Once accepted or deemed to have been accepted by Supplier, an Order is final and binding upon the parties.
4. Upon the acceptance or deemed acceptance of each Order by Supplier, a separate contract of sale (Agreement) will arise. Each Agreement will comprise the accepted Order and these Terms and Conditions. If there is any inconsistency between these Terms and Conditions and another provision in an Agreement, then the Terms and Conditions will prevail to the extent of the inconsistency.
5. For the avoidance of doubt, no terms or conditions of the Supplier, including any terms or conditions printed on or referred to in any Product list or Service offering, acceptance of an Order or other documentation, will be binding on Ego or have any legal effect unless expressly agreed to in writing by Ego.
6. Supplier must supply Products and or Services to Ego in accordance with the relevant Order.
i. "Purchase Order" means the purchase order document issued by an authorised Ego Representative.
j. "Representative" of a party means that party's director, officer, employee or agent.
k. “Specifications” means any technical or other specification relating to the Goods and/or Services referred to in the Purchase Order and details of which have been supplied by Ego or its Representative to the Supplier.
l. "Supplier" means the person or entity who sells the Goods and/or provides the Services to Ego.
2. Binding Terms and Conditions:
a. The entire Agreement between Ego and the Supplier for the purchase of the Goods and/or Services from the Supplier is:
1. these Terms and Conditions;
2. any other terms and conditions (including Specifications and artworks) incorporated by reference in the Purchase Order as long as the Supplier has details of those terms and conditions;
3. any other terms and conditions which are imposed by law and which cannot be excluded; and
4. any agreed written variation.
b. The precedence is that these Conditions shall apply to all contracts for the purchase of Goods and/or Services by Ego from the Supplier to the exclusion of any terms and conditions or any other materials which the Supplier may purport to apply or which are endorsed upon any correspondence or documents issued by the Supplier irrespective of their date of communication to Ego. The Supplier may not rely on any representations by Ego and or its Representative that is or are not included in this Agreement.
c. The acceptance of a Purchase Order by the Supplier constitutes acceptance of these Conditions.
a. In these Terms and any Agreement, unless the contrary intention appears:
1. a person includes a corporation, unincorporated association, partnership, joint venture or public, statutory or governmental association or agency;
2. a statute or regulation includes an amendment, replacement or re-enactment of that statute or regulation;
3. a reference to dollars is to Australian Dollars;
4. the word “including” and similar expressions are not words of limitation;
5. a reference to conduct includes any omission and any statement or undertaking, whether or not in writing; and
6. where an act is to be performed on a day that is not a Business Day, the act will be required to be performed on the following Business Day.
b. The Supplier must not register these Terms and any Agreement as a security interest (as defined in the Personal Property Securities Act 2009) against Ego without first obtaining Ego’s written consent. Such consent may be withheld by Ego in its absolute discretion.
c. Any notice in connection with these Conditions or any Agreement will be deemed to have been duly given when made in writing and delivered or sent by electronic or post to the party to whom such notice is intended to be given, at the electronic address or physical address of that party specified in the Agreement or to such other address as may from time to time be notified in writing to the other party.
d. If any provision of these Conditions or any Agreement is invalid, illegal or unenforceable, these Conditions or the Agreement (as applicable) take effect (where possible) as if they did not include that provision.
e. Any failure by Ego to insist upon strict performance by Supplier of any provision in these Conditions or any Agreement will not be taken to be a waiver of any existing or future rights of Ego in relation to the provision.
f. Supplier must not assign or sub-contract the Purchase Order in whole or in part without Ego’s prior written consent.
g. These Conditions are subject to change upon Ego providing Supplier with one (1) month’s prior written notice of such changes.
h. Failure of Ego to insist on strict performance of any Conditions in this Agreement shall not constitute a waiver of any of Ego's rights or of any later breach or default.
i. The Supplier is an independent contractor of Ego. Nothing in these Conditions constitute any other type of relationship between the parties.
j. Each provision of the Agreement is severable. Severance does not affect any other provision.
k. The law of Victoria governs the Agreement.
4. Price, Charges and GST:
a. Ego’s Purchase Order is placed on a firm price basis in accordance with the price(s) listed in the Purchase Order and is not subject to increases in price without the Ego's prior approval in writing.
b. The prices are inclusive of all charges for testing, inspection, packaging, packing, shipping, carriage, insurance and off-loading of the Goods and/or Services in the Purchase Order and all applicable taxes, duties (including customs and import duties) and levies.
c. The price for all Goods and/or Services is the price stated in the Purchase Order. Unless the Purchase Order expressly states otherwise, and to ensure there is no doubt, the price does not includes any applicable GST.
d. Supplier must provide Ego with a minimum of 3 calendar months written notice of any proposed price increase for the Goods and/or Services.
5. Payment Terms:
a. Supplier must submit monthly tax invoices to Ego detailing the payments to be made by quoting Ego’s purchase order number.
b. Unless otherwise stated and agreed in writing, Ego will pay all correctly rendered invoices within 30 days of the end of the month in which the invoices are received by Ego.
c. Supplier will not be paid for any over-supply (more than 10% of the quantity specified in the Purchase Order), unless otherwise agreed to by Ego in writing.
d. If Ego disputes an invoice:
1. payment is suspended of the invoice amount that is in dispute and
2. the Supplier must give Ego any information or document it reasonably requests in relation to the invoice or the dispute until the dispute has been resolved.
e. Any debts or credits not in dispute, in favour of or against either the Supplier or Ego with respect to a Purchase Order are deemed mutual debts or credits and may be offset and only the balance will be allowed or paid. The right of offset will not be affected or diminished because of the insolvency of either party unless otherwise prohibited by law.
a. The Goods and/or Services must be supplied on the delivery date to the delivery destination(s) stated in the Purchase Order.
b. Supplier must ensure that delivery of the Goods is made in accordance with all applicable road safety and chain of responsibility laws and industry codes and standard practice requirements, and by suitably qualified and licensed personnel and sub-contractors, and must retain and provide Ego with copies of any transport and journey documents required by Ego.
c. Appropriate paperwork including but not limited to Packing Lists, Certificates of Analysis, Safety Data Sheets, Shipping Documents and Delivery Dockets need to accompany delivery of Goods unless a different method or date of dispatch (or both) is agreed by Ego in writing.
d. Goods identified as “Dangerous” in current Australian Code for Transport of Dangerous Goods by Road and Rail or by the relevant State or Territory Authorities, must be labelled, manifested and accompanied by an Emergency Procedure Guide according to the relevant State regulations covering transport of dangerous goods.
e. If the Supplier fails to meet any such delivery date and or delivery destination and or other requirements as mentioned above, Ego may, without limiting its other rights and remedies, cancel all or part of the Purchase Order.
7. Packing of Goods:
a. Goods must be marked in accordance with Ego's Delivery Requirements and any statutory requirements.
b. Goods must be clearly labelled with printed, legible labels.
c. Goods must be packed in accordance with industry standards and in a manner sufficient to withstand the ordinary course of transit.
d. Any changes to pack sizes shall require the prior written approval of Ego.
8. Communication of Delay and or Damage:
a. Supplier must advise Ego immediately in writing upon becoming aware of a delivery being unlikely to take place on the due date or there is a partial loss of, damage to, or defects in any delivery of Goods and/or Services.
b. Supplier must take all necessary steps to avoid or minimise any delay and must immediately replace any lost or damaged Goods and or rectify any defect in the Services at Supplier’s cost.
9. Supplier Warranties:
Supplier warrants that:
a. it has the power and authority to enter into these Conditions;
b. it has the right and authority to sell the Goods and/or Services to Ego in Australia;
c. it has and will maintain all licences, permissions, consents and authorities necessary to authorise and enable it to supply the Goods and/or Services under this Agreement;
d. the Goods and/or Services will be fit for the purpose for which goods and/or services of the same kind are commonly supplied and any other purpose made known to Supplier;
e. the Goods will be genuine, of acceptable quality and be free from defect in material and workmanship;
f. the Goods will carry any applicable manufacturer's warranty which passes on to Ego from Supplier without liability to the Ego. Supplier must assign to Ego at the request of Ego the benefit of any warranty or guarantee that Supplier has received from any of its suppliers (whether under contract or by implication or operation of law);
g. the Goods will comply with all applicable Australian laws and regulations and any other applicable laws or regulations;
h. it and its personnel will, in delivering the Goods and/or Services, comply with Ego’s operating standards and all laws and regulations that apply to the transport of Goods by road, rail or air.
i. the importation, distribution, offer or sale of the Goods by Ego (including through the internet and other means of e-commerce) will not infringe any person’s intellectual property rights or other protected rights; and
j. there is no current, pending or threatened litigation, arbitration, investigation, inquiry or proceeding in which Supplier is involved that will or may have an adverse effect on the business affairs of Supplier, the reputation of Ego, or the performance of any of Supplier’s obligations under these Conditions including providing the applicable Goods and/or Services to Ego.
a. The Goods and/or Services, within 14 calendar days of being delivered in accordance with the Purchase Order, are subject to matching, on-site inspection, sampling and testing against Quality Control standards prior to any decision of acceptance.
b. Supplier bears all risks of loss and damage to the Goods until the acceptance of the delivery for on-site inspection by Ego.
c. Signed delivery dockets or Proof of Delivery Documents do not mean acceptance by Ego of Goods and/or Services delivered but in the case of Goods, only the number of items, packages or cartons delivered.
11. Inspection and Rejection:
a. All Goods delivered are subject to inspection within 14 calendar days elapsed after delivery.
b. Ego may reject Goods at the Supplier’s expense where the Goods are defective through not meeting the Purchase Order details, Ego's specifications, and/or Ego’s Quality Agreement (where applicable).
c. Ego must notify in writing the Supplier within five (5) Business Days post inspection of those Goods being rejected and to be returned (including but not limited to oversupply of Goods ordered, Goods that do not comply with Ego’s specifications, or are damaged in any way at the time of delivery).
d. Ego will hold such rejected Goods for Supplier's instructions and at Supplier's risk for a period not exceeding seven (7) Business Days after the Supplier has been notified of the rejection.
e. If Supplier's instructions are not received within the seven (7) Business Day period referred to above, Supplier acknowledges that Ego may return the rejected goods to the Seller's premises at Supplier's expense and risk.
f. Any and all amounts owed or owing by Supplier to Ego under this clause 11 (including but not limited to the cost of Goods to be returned and expenses or other costs incurred by Ego in relation to Goods that are rejected) must be immediately repaid to Ego on request.
a. Ego may, at any time, terminate the Purchase Order, in whole or in part, without cause, upon written notice to Supplier. Following upon any such termination, Supplier shall, to the extent specified by Ego, stop all work on the Purchase Order, and cause its suppliers and subcontractors to immediately stop work. Charges for any such termination of the Purchase Order will be limited to actual non-recoverable costs incurred by Supplier which Supplier can demonstrate were properly incurred prior to the date of termination. In no event shall such reimbursement include anticipated profits for undelivered Goods and/or unperformed Services.
b. Ego may, without penalty and without prejudice to any other rights it holds, terminate the Purchase Order, in whole or in part, by written notice, if Supplier:
1. fails to make delivery of the Goods as specified in the Purchase Order;
2. fails to replace rejected Goods in accordance with these Conditions;
3. fails to perform any of its obligations contained in these Conditions;
4. threatens to, or is preparing to, or enters into, any formal or informal insolvency arrangement
5. notifies Ego of an anticipated delay in the delivery of Goods and Ego considers, in its sole discretion that, the delay will significantly affect a key aspect of Ego’s business.
Supplier must defend, indemnify and hold Ego, its affiliated companies, and their representatives, successors, and assigns harmless from and against any and all claims, suits, actions, liabilities, loss, judgments or damages, whether ordinary, special or consequential arising directly or indirectly from or in connection with:
a. the Goods and/or Services supplied;
b. the acts, negligence, omissions or wilful misconduct of Supplier;
c. a breach of any of Supplier’s warranties, representations or any other Conditions of this Agreement;
d. Supplier’s negligent, unauthorised or wrongful acts or omissions with regard to the use or installation of hazardous materials;
e. a claim that any Goods and/or Services supplied Ego infringe upon or misappropriate any patent, copyright, trade mark, trade secret or other intellectual property interest of another; or
f. a claim of any lien, security interest or other encumbrance made by a third party.
a. Supplier must, for so long as any obligations remain in connection with this Agreement, effect and maintain appropriate insurance policies, with a reputable insurer; and all such insurances to include those required by law or regarded as sound commercial practice.
b. Without limiting Clause 14 a), the Supplier must itself and Ego in relation to the Goods against product liability and product recall liability.
c. On request, Supplier must provide Ego within one (1) week with proof of insurance, acceptable to Ego.
15. Confidential Information:
Supplier must keep confidential details of its trading relationship with Ego (including this Agreement) and all information of Ego’s related companies or customers that is not publicly known (Confidential Information) and must not use or disclose any of the Confidential Information without Ego’s prior written consent, except to the extent that it is strictly necessary to use or disclose Confidential Information by law or for the purpose of supplying the Goods and/or delivering the Services to Ego, under this Agreement.
16. Intellectual Property:
a. Supplier warrants that the Goods and/or Services supplied to Ego in the performance of this Agreement does not infringe any patent, trademark, registered design, name, copyright or other protected right (Intellectual Property) and that Ego is fully and legally entitled to use those Goods and/or Services without infringing any Intellectual Property rights of the Supplier and or a third party.
b. To the extent that use of the Goods and/or Services requires a licence of rights in Intellectual Property belonging to a third party, Supplier must procure for Ego a perpetual, royalty-free, transferable licence to use that Intellectual Property in respect of Ego’s use of the Goods and/or Services.
c. Supplier agrees that Ego will own all Intellectual Property arising as a result of the provision of the Services and the Supplier assigns to Ego, all rights and title to such Intellectual Property. Supplier must procure all necessary arrangements in written form with all applicable Supplier’s personnel to give effect to this Clause; and the formal legal arrangement of this legal status must be provided to Ego at the same time as the applicable Goods and/or Services are delivered.
17. Modern Slavery, Ethical Behaviour and Bribery
Unless otherwise required or prohibited by law, the Supplier warrants that:
a. it does not employ, engage or otherwise use any child labour in circumstances other than those permitted by law;
b. it does not use forced labour in any form (prison, indentured, bonded or otherwise) and its employees are not required to lodge papers or deposits on starting work;
c. it provides a safe and healthy workplace, presenting no immediate hazards to its employees, any housing provided by the Supplier to its employees is safe for habitation, and it provides access to clean water, food, and emergency healthcare to its employees in the event of accidents or incidents at the Supplier's workplace;
d. it does not discriminate against any employees on any ground (including race, religion, disability or gender);
e. it does not engage in or support the use of corporal punishment, mental, physical, sexual or verbal abuse and does not use cruel or abusive disciplinary practices in the workplace;
f. it pays each employee at least the minimum wage, or a fair representation of the prevailing industry wage (whichever is the higher), and provides each employee with all legally mandated benefits;
g. it complies with the laws on working hours and employment rights in the countries in which it operates; and
h. it is respectful of its employees’ right to join and form independent trade unions and freedom of association. The Supplier shall ensure that it has ethical and human rights policies and an appropriate complaints procedure to deal with any breaches of such policies; and the Supplier permits Ego, the right upon reasonable notice (unless inspection is for cause, in which case no notice shall be necessary) to enter upon the Supplier's premises to monitor compliance by the Supplier of the warranties set out in this Clause and the Supplier shall, subject to compliance with law, furnish Ego with any relevant documents requested by Ego in relation thereto.
18. Dispute Resolution
a. If a dispute arises out of or related to these Terms or any Agreement, no party may commence court or arbitration proceedings (other than proceedings for urgent interlocutory relief) unless it has first complied with this clause 18.
b. A party claiming a dispute has arisen out of or related to these Terms or any Agreement must give written notice to the other party specifying the nature of the dispute. On receipt of that notice by the other party, the parties’ representatives must endeavour in good faith to resolve the dispute expeditiously and in any event within ten (10) Business Days, failing which either party may bring such proceedings as it sees fit.