1 Definitions and Interpretation
1.1 Confidential Information means any trade secrets, know-how, technical, scientific, commercial, financial, product, market or pricing or other information of or about LMS to which the Supplier gains access in connection with this Contract; Contract means the contract entered into between LMS and Supplier for Supplies pursuant to a Purchase Order and these Terms; Goods means any goods, tools or materials to be supplied by Supplier to LMS, including systems used by the Supplier; LMS means HLS Imaging Holdings Pty Ltd, or the HLS Imaging Holdings Pty Ltd subsidiary, as named in the Purchase Order; Intellectual Property means all intellectual property rights throughout the world, whether present or future, registered or unregistered, including the right to apply for registration of any such rights; Loss means any damage, loss, liability, cost, charge, expense, penalty, outgoing or payment (whether direct or indirect, consequential or incidental) and includes any economic loss or damage; loss of reputation; loss in connection with any claim against LMS by any person; loss of revenue or actual or potential profits; any costs of repair; lost opportunity, including the opportunity to enter into or complete an arrangement with a third party; and legal costs and expenses on a full indemnity basis; Price means the price of the Supplies under clause 4; Purchase Order means the purchase order created by LMS attached to, or which refers to, these Terms; Services means services to be supplied by Supplier to LMS; Site means the site(s) set out in the Purchase Order or otherwise notified by LMS to Supplier; Specifications means the specifications for the Supplies; Supplier means the supplier of the Supplies, as specified in the Purchase Order and any of its officers, employees, agents, contractors or sub-contractors; and Supplies means Goods and/or Services (as the case may be).
1.2 Specifying anything in these Terms after the words including or includes or similar expressions does not limit what else is included unless expressly stated.
2 Basis of Purchase
2.1 No responsibility will be accepted by LMS for Supplies unless supplied pursuant to a Purchase Order, which constitutes an offer to buy the Supplies subject to these Terms. Supplying the Supplies constitutes acceptance of that offer. No change in quantity, description, Specification, Price, delivery terms or any of these Terms will bind LMS unless LMS confirms it in writing.
2.2 Supplier agrees that these Terms apply to the Contract to the exclusion of any other terms, including any terms on any printed documents issued by the Supplier. These Terms are in addition to all other rights LMS may have at law. Any waiver by LMS of any right is not a waiver of any other or future rights LMS may have.
2.3 Nothing in this Contract requires LMS to purchase any minimum or other quantity of Supplies from the Supplier (and LMS gives no undertaking or representation in this regard) or prevents LMS from purchasing goods and services the same, or of a similar type, as the Supplies from any other person, entity or source.
3 Specifications
3.1 Any Specification supplied by LMS to the Supplier in connection with this Contract, together with any Intellectual Property in that Specification or the resulting Supplies, are the exclusive property of LMS. Any Specification produced or amended by or on behalf of the Supplier for LMS in connection with this Contract vests in LMS immediately upon its creation. The Supplier hereby assigns all right, title and interest in such Intellectual Property to LMSand will do any further acts or execute any documents required by LMS to effect such assignment. The Supplier must not disclose any LMS Specification except with LMS’ written consent. The Supplier must not at any time after the date of the Contract supply Supplies using any LMS Specifications to any third party.
4 Price and GST
4.1 Subject to clause 4.2, the Price for the Supplies is: as stated on the Purchase Order, on a free into store basis and inclusive of any taxes, duties or imposts payable in respect of the Supplies, unless stated otherwise on the Purchase Order or otherwise agreed by both parties in writing.
4.2 Unless the context indicates otherwise, terms in this clause that are defined or used in A New Tax System (Goods and Services Tax)Act 1999 (Cth) have the same meaning as in that Act. Unless expressly stated to be inclusive of GST, the consideration for any taxable supply made by a party under or in connection with these Terms does not include GST and may be increased by the supplier by an amount equal to the GST payable on that taxable supply. The recipient need not make any payment for a taxable supply unless the supplier has first issued a tax invoice. If an adjustment event occurs the supplier must issue an adjustment note to the recipient and the difference between the GST payable on the supply (taking into account any adjustments) and the amount of GST included in the price for the supply must be paid by or refunded to the recipient as applicable.
4.3 Any amount to be reimbursed or indemnified in connection with these Terms must be reduced by an amount equal to any input tax credit to which the party being reimbursed (or its representative member) is entitled in respect of that amount.
4.4 Any rebates, discounts, allowances or other reductions in price to which LMS is entitled or which are granted by the Supplier are to be calculated on the GST inclusive Price. LMS will be entitled to any discount for prompt payment, bulk purchase or volume of purchase usually granted by the Supplier whether or not shown in the Purchase Order.
5 Insurance
5.1 For the duration of this Contract the Supplier must hold adequate insurance including workers’ compensation, property damage for its property and the replacement value of the Products, and each of product and public liability and professional indemnity for at least $20,000,000 for each and every Loss.
6 Payment Terms
6.1 The Supplier must send to LMS, at its address in the Purchase Order, an invoice setting out the Price and quantity of Supplies. If the Supplier has complied with these Terms, LMS will pay correct invoices on or about 30 days from the end of the month in which the invoice was received. If LMS disputes the amount of an invoice or reasonably considers that the Supplies to which the invoice relates have not been properly provided, LMS is not obliged to pay the corresponding amount of the invoice until the dispute is resolved.
6.2 LMS may set off against the Price any sums owed to LMS by the Supplier.
7 Supply, Delivery, Risk and Title
7.1 Time for delivery is of the essence.
7.2 The Supplier must supply the Supplies with written proof of delivery by the delivery date at the Site and pay all costs for delivery and provision of Supplies.
7.3 The Supplier agrees that title in the Goods passes to LMSon delivery of the Goods.
7.4 Risk of loss or damage to the Goods passes to LMS on acceptance of the Goods by LMS.
8 Inspection
8.1 LMS may inspect: all work performed under these Terms, the Goods before they are dispatched and the Supplier’s premises, and may review any manufacturing process, packaging or transport facilities used in respect of the Supplies.
8.2 An inspection does not release the Supplier from any obligation imposed by these Terms or law.
9 When LMS May Reject Supplies
9.1 Without prejudice to its rights under this Contract, LMS may reject any Supplies which are not supplied by the delivery date or which breach any warranty.
9.2 The Supplier must pay the cost of storing, handling and returning any Goods rejected by LMS. No delay by LMS in rejecting the Supplies affects LMS’ rights under this clause.
10 Supplier’s Warranties
10.1 Supplier warrants that: (a) the Supplier and the Supplies comply with all laws, regulations, by-laws, orders, Australian standards, industry codes of practice, Intellectual Property rights and other requirements relevant to the manufacture and supply of the Supplies; (b) all Goods: (1) conform with the description provided by the Supplier, the Specifications, the quantities stated in the Purchase Order and any samples;(2) are of acceptable quality, fit for the purpose for which they are sold or any purpose represented by the Supplier or disclosed by LMS to the Supplier, and are free from defects in material, workmanship and design; (3) are new; and(4) are delivered free from any lien, bill of sale, charge or other encumbrance, and Supplier has good marketable title to them; and (c) all Services: (1) conform with the Purchase Order and will be rendered with due care and skill; and (2) together with any Goods supplied with or resulting from the Services will be fit for LMS’ intended purposes and of a nature and quality that may reasonably be expected to achieve LMS’ intended results and that accord with best practice in the market for those Supplies.
10.2 Supplier must notify LMS as soon as it becomes aware of any breach of clause 10.1.
10.3 Nothing in these Terms excludes any warranty, guarantee or condition on the part of Supplier implied by law, custom, trade or otherwise or any express warranty, guarantee or condition of the Supplier or its suppliers.
11 Cancellation of Orders
LMS may, without liability, cancel an undelivered Purchase Order, wholly or partly, at any time after time for delivery has elapsed.
12 Supplier’s Indemnity
12.1 The Supplier indemnifies LMS against all Loss which LMS pays, suffers, incurs or is liable for in relation to: (a) breach of any express or implied warranty, condition or guarantee by the Supplier in relation to the Supplies or any withdrawal or recall of Goods or product containing the Goods initiated by any person; (b) any claim in relation to property damage, personal injury or death, or breach of a third party’s Intellectual Property, that occurs in connection with the Supplies; and (c) the performance or breach of these Terms by the Supplier, or any negligent act or omission by the Supplier.
13 Withdrawal or Recall of Goods
13.1 The Supplier must maintain a product withdrawal and recall program and provide a copy of such program to LMS on request.
13.2 The Supplier must notify LMS immediately (and in writing within 24 hours) of any circumstances which may lead to a withdrawal or recall of the Supplies giving full details of the circumstances and any action the Supplier takes or proposes to take in response and provide any assistance required by LMS.
14 Providing Services
14.1 The Supplier must comply with LMS’s site rules and policies and all legal and government requirements and will be solely responsible for workers’ compensation insurance, taxation and other liabilities relating to its employees.
15 Confidential Information and Intellectual Property
15.1 The Supplier must keep all Confidential Information secret unless it comes into the public domain (other than because of a breach of this Contract or any law) and must not use that Confidential Information except as necessary for the purposes of this Contract.
15.2 On termination of this Contract, the Supplier must promptly return all Confidential Information to LMS, or destroy it at LMS’s request.
15.3 Intellectual Property owned by either party at the commencement of this Contract remains the property of that party. Any Intellectual Property developed or created during the performance of thisContract vests in LMS immediately upon its creation. Supplier hereby assigns all right, title and interest in such Intellectual Property to LMS and will do any further acts or execute any documents required by LMS to effect such assignment.
16 Termination
16.1 A party may terminate this Contract by immediate written notice if: (a) the other party commits any breach of these Terms which cannot be remedied; (b) the other party fails to remedy to the first-mentioned party’s reasonable satisfaction any breach by the other party of these Terms which can be remedied within 14 days after the day on which the first-mentioned party gives the other party a written notice requiring it to remedy the breach; (c)the other party enters or threatens to enter into bankruptcy or any other form of insolvency, administration, management or receivership or that party enters into any scheme or arrangement with its creditor; or (d) the other party ceases or threatens to cease to conduct business.
16.2 LMS may terminate this Contract by immediate written notice if, in LMS’ reasonable opinion, the Supplier or any representative of Supplier engages in unlawful activity or any other misconduct or has a conflict of interest.
16.3 On termination of this Contract or rejection of anySupplies by LMS the risk in any Goods already delivered will immediately revert to the Supplier and LMS will not be obliged to return to the Supplier any Goods unless the Supplier has requested LMS to do so and Supplier undertakes to pay all the costs of returning the Goods.
17 Anti Corruption
17.1 The Supplier will not directly or indirectly, in private business or public sector dealings, offer, give or agree to offer or give any payment, gift or other advantage with respect to any matters which are the subject of this Contract which would violate any anti-corruption laws or regulations; is intended to, or does, influence or reward any person for acting in breach of an expectation of good faith, impartiality or trust; or which a reasonable person would otherwise consider to be unethical, illegal or improper.
18 Modern Slavery
18.1 The Supplier must: (a) not engage in Modern Slavery (as that term is defined in the Modern Slavery Act 2018 (Cth)); (b) take reasonable steps to identify, assess and address risks of Modern Slavery practices in the operations and supply chains used in the supply of the Supplies, and create and retain records of the steps so taken; and (c) at LMS’ request, promptly provide to LMS copies of the records referred to in paragraph (b) and any other information required by LMS to comply with the Modern Slavery Act2018 (Cth).
18.2 If at any time the Supplier becomes aware of Modern Slavery practices in the operations or supply chains used in the supply of the Supplies, the Supplier must as soon as reasonably practicable take all reasonable action to address or remove these practices, including where relevant by addressing any practices of other entities in its supply chains
19 Governing Law
These Terms will be governed by and construed in accordance with the laws of New South Wales and each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales.
