Protex Water Pty Ltd Purchasing Terms and Conditions
These Terms, as amended or replaced from time to time, apply to all Goods and/or Services supplied or to be supplied by a Supplier to Protex Water, notwithstanding any provision to the contrary which may appear in a quotation, proposal or other communication issued by the Supplier.Protex Water Pty Ltd purchasing terms and conditions
These Terms, as amended or replaced from time to time, apply to all Goods and/or Services supplied or to be supplied by a Supplier to Protex Water, notwithstanding any provision to the contrary which may appear in a quotation, proposal or other communication issued by the Supplier.1. DEFINITIONS
1.1 Defined Terms
In these Terms:- Accepted Order means a Purchase Order accepted by the Supplier.
- Background IP means Protex Water IP or Supplier IP as the case may be.
- Confidential Information means all information obtained (whether orally, in writing or in any other form) from one party (the Disclosing Party), any representative of the Disclosing Party, or a third party at the discretion of the Disclosing Party, and provided to, learned by, or accessed by the other party (the Recipient), including without limitation:
- matters of a technical nature;
- research and development information;
- business records, information, notes, products, know-how, trade secrets, engineering or other data;
- accounting procedures and/or financial information;
- specifications, processes or formulae;
- planning or marketing procedures, techniques or information, strategic marketing or business development plans, sales figures and information related thereto, the identity of customers, suppliers and/or agents;
- pricing details; and
- anything else that is marked “confidential” or which is otherwise indicated expressly or impliedly to be subject to an obligation of confidence.
- Contract IP means all Intellectual Property created or developed by or on behalf of the Supplier or Protex Water in connection with an Accepted Order, but excluding any Protex Water IP or Supplier IP.
- Delivery Date means the date stipulated in an Accepted Order for the delivery of Goods and/or Services.
- Force Majeure Event means an event beyond the reasonable control of Protex Water including, but not limited to, strikes, fires, explosions, flood, riot, lock-out, injunction, interruption of transportation, accidents, war, pandemic, governmental action or other circumstances beyond Protex Water’s control.
- Goods means the goods the subject of an Accepted Order.
- GST means the goods and services tax under the Goods and Services Act 1999 (GST Act) and terms used in these Terms have the meanings contained in the A New Tax System (Goods and Services Tax) Act 1999.
- Insolvency Event means (a) a receiver, receiver and manager, administrator or liquidator being appointed, (b) an application made for a party to be wound up, dissolved or administered, (c) a party entering into any arrangement, compromise or assignment for the benefit of creditors, (d) a party ceasing, suspending, or threatening to cease or suspend the conduct of all or material part of its business, or dispose of or threaten to dispose of a material part of its assets, (e) a party being, or under legislation is presumed or taken to be, insolvent, (f) any form of legal process being levied or enforced against a party or its assets and not discharged or stayed within 14 days, or (g) a security interest becoming enforceable or being enforced.
- Intellectual Property or IP means all current and future intellectual and industrial property rights and interests throughout the world, whether registered or unregistered, including trade marks, designs, patents, inventions, plant breeder’s rights, copyright and analogous rights, circuit layouts, confidential information, trade secrets, know-how and any right to apply for registration of, or any application for, 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 Protex Water 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.
- Moral Rights means the moral rights granted to creators under the Copyright Act 1968.
- PPSA means the Personal Property Securities Act 2009.
- Price has the meaning given in clause 1.
- Protex Water means Protex Water Pty Ltd (ABN 61 674 186 120) of 70 Technology Close, Corio, Victoria, 3214.
- Protex Water IP means the Intellectual Property created or developed by Protex Water.
- Purchase Order means an order to purchase Goods and/or Services which, to avoid any misunderstanding, is deemed to incorporate these Terms.
- Services means the services the subject of an Accepted Order.
- Supplier means a supplier of Goods and/or Services.
- Supplier IP means the Intellectual Property created or developed held by the Supplier other than in connection with provision of the Goods and/or Services.
- Terms means these terms and conditions.
- Website means www.protexwater.com.au.
2. ACCEPTANCE OF A PURCHASE ORDER IS BINDING
- These Terms, together with an Accepted Order, constitute the entire contract between Protex Water and the Supplier. To the extent of an inconsistency between these Terms and an Accepted Order, the terms of the Accepted Order shall prevail (unless expressly otherwise provided for in these Terms).
- No communication (written or verbal) between Protex Water and the Supplier shall modify or vary these Terms unless such modification or variation is in writing and signed by Protex Water.
3. PRICE
3.1 Price
- The price for the Goods and/or Services will be as set out under the relevant Accepted Order (Price).
3.2 Price includes all costs except GST
- The Price, unless otherwise agreed in writing, includes:
- delivery of the Goods and/or Services;
- the cost of packaging;
- freight, loading and insurance charges;
- sales tax (where applicable); and
- any other costs;
- but excludes GST.
4. GOODS AND SERVICES TAX
- Protex Water acknowledges and agrees that, to the extent that the supply of Goods and/or Services by the Supplier to it is subject to GST, Protex Water shall, unless the Price expressly states that GST is included, pay an additional amount to the Supplier equal to GST with respect to such supply.
- The Supplier shall deliver to Protex Water a tax invoice for the supply of all Goods and/or Services in a form which complies with the GST Act.
5. PURCHASE ORDER
5.1Protex Water may place Purchase Orders
- Protex Water may, but is not obliged to, place a Purchase Order with a Supplier.
5.2 Terms of Purchase Orders
- Protex Water may state in a Purchase Order:
- the quantity and description of the Goods and/or Services to be purchased;
- the price of the Goods and/or Services;
- particulars of delivery of the Goods and/or Services, including the Delivery Date;
- particulars of payment; and
- any other terms and conditions specific to the Goods and/or Services to be purchased.
5.3 Supplier to acknowledge Purchase Order
- A Supplier must promptly acknowledge that it has received a particular Purchase Order.
5.4 Acceptance of Purchase Order
- Subject to clause 5.4(b), the Supplier must:
- accept a Purchase Order submitted by Protex Water; and
- acknowledge the acceptance of a Purchase Order by giving Protex Water written notice of acceptance within 10 days after receiving Protex Water’s Purchase Order (Notification Period).
- The Supplier may reject a Purchase Order if it notifies Protex Water that it does not accept the Purchase Order within the Notification Period.
- On acceptance by the Supplier, a Purchase Order becomes an Accepted Order.
5.5 Cancellation of orders
- Subject to these Terms neither party may, without the other party’s written consent, cancel an Accepted Order.
6. DELIVERY
6.1 Delivery Date
- The Supplier must deliver Goods and/or Services the subject of an Accepted Order by the Delivery Date. For the avoidance of doubt, the Supplier’s obligation under this clause is a material term.
6.2 Delivery address
- Goods and/or Services must be delivered to the address specified in the Accepted Order.
6.3 Protex Water Delay
- Where Protex Water, acting reasonably, advises the Supplier to delay delivery for any reason then:
- no Goods and/or Services shall be delivered until requested by Protex Water;
- the Supplier shall make all necessary arrangements for storage protection and insurance of Goods until Protex Water has taken delivery of such Goods; and
- Protex Water shall pay to the Supplier all reasonable substantiated costs attributable to any such delay caused by the instructions of Protex Water.
7. INSTALLATION OR FITTING
- The following conditions shall apply where the Supplier provides work in connection with the installation or fitting of Goods.
- All work shall be performed in a proper and workmanlike manner.
- The Supplier shall supply all labour, tools, equipment and materials necessary to complete the work.
- The Supplier shall use its best endeavours not to impede or interfere with other work in progress.
- The Supplier shall at its own expense obtain all requisite licences and permits, comply with all laws and regulations in connection with the work of installation of the Goods.
- The Supplier, its servants, agents and sub-contractors shall comply with the occupational, health and safety regulations and policies of Protex Water (as amended from time to time) and with the reasonable directions and orders of Protex Water.
- The Supplier shall not sub-contract or assign the work or any part thereof without Protex Water’s written consent and then subject to such reasonable conditions as Protex Water may in its discretion impose.
- The Supplier performs all work as an independent contractor and not as an agent or employee of Protex Water.
8. INSPECTION AND ACCEPTANCE OF GOODS
8.1 Protex Water may inspect on delivery
- Protex Water may as soon as reasonably practicable inspect and test the Goods on delivery in accordance with its audit inspection procedures to ensure that the Goods are acceptable to it, acting reasonably.
8.2 Acceptance of Goods
- Goods will be accepted at the specified point of delivery only and shall remain subject to audit inspection and test by Protex Water.
- Acknowledgement by Protex Water’s representative of delivery of the Goods does not constitute acceptance that the Goods have been supplied in accordance with these Terms.
- Goods will be deemed to be accepted when Protex Water pays the Supplier for the Goods, unless Protex Water pays the Supplier for the Goods before satisfactory audit and inspection, in which case the payment will not be deemed to constitute its acceptance of the Goods.
- Protex Water’s audit, inspection or acceptance of or payment for some or all of the Goods does not in any way:
- change or affect the Supplier’s obligations under these Terms; or
- affect Protex Water’s rights to (A) make a claim for any loss it may suffer because of the Supplier’s breach of any warranty or failure to fulfil any of its other obligations under these Terms, and (B) reject any defective Goods.
8.3 Supplier to compensate for loss
- If:
- Goods do not satisfy the audit inspection and test procedure;
- any defect in Goods previously accepted existing at the time of delivery becomes apparent after such reasonable time from the date of delivery of the Goods; or
- the quantity delivered is less than that specified in the Accepted Order placed by Protex Water,
- replace the unacceptable Goods;
- rework the unacceptable Goods;
- make good the shortage; or
- if Protex Water has paid the Supplier, provide Protex Water with a credit for the unacceptable Goods.
- the Supplier must comply with its obligations under clause 13, even if the Supplier has replaced, or reworked unacceptable Goods or has made good the shortage.
- In each case under clause 8.3(a), Protex Water may take remediation steps and in such a case the Supplier shall be liable to reimburse to Protect Water all reasonable costs and expenses (including internal costs) incurred by Protex Water as a consequence.
- Protex Water may reject the whole delivery (where Protex Water cannot reasonably accept part of the delivery of the Goods) or any part of it and may require the Supplier to:
9. PASSING OF TITLE AND RISK
9.1 Title and Risk
- Title and risk in the Goods will pass to Protex Water on delivery of the Goods.
- Without limiting clause 9.1(a), the Supplier may not claim or register any interests (including security interests) in the Goods under the PPSA.
10. PAYMENT
10.1 Invoices
- The Supplier will invoice Protex Water setting out the Price and the Goods and/or Services provided within 30 days of delivery.
10.2 Payment
- Protex Water will pay the Supplier:
- for correctly rendered invoices on or about 30 days from the end of the month in which the invoice was received; and
- no amount will be paid by Protex Water in respect of any part of the Goods and/or Services which Protex Water reasonably determines as not being supplied in accordance with the Terms.
10.3 Set off
- Protex Water is entitled to set off against any invoice issued pursuant to clause 10.1, any sums owed to Protex Water by the Supplier (that are not subject to a bona fide dispute) in relation to these Terms or otherwise or which may at any time become due to Protex Water from the Supplier under these Terms or otherwise.
11. LAWS AND REGULATIONS
Supplier to comply with laws and regulations
- In designing, manufacturing, packaging and delivering the Goods, the Supplier warrants that it will comply with all relevant laws, regulations, ordinances, by-laws and executive orders made under them applicable from time to time as they may apply to any of Protex Water and the Supplier.
12. INSURANCES
12.1 Supplier insurance
- The Supplier must take out and maintain at all times during the Term:
- public liability and product liability for an amount not less than $20 million each and every loss, and in the aggregate in respect of products, and otherwise on terms and conditions acceptable to Protex Water;
- if nominated in the Schedule, Professional indemnity insurance for an amount not less than $5,000,000 for each and every loss; and
- workers’ compensation insurance as required by law;and the Supplier must provide Protex Water upon request with certificates of currency evidencing each of the insurances required by this clause.
13. LIABILITY AND INDEMNITY
13.1 Indemnity by Supplier
- The Supplier indemnifies Protex Water, its directors, employees, contractors and agents against any Loss which Protex Water, its directors, employees, contractors or agents (each and all Indemnified Persons) suffer, incur or are liable for in relation to:
- breach of any express or implied warranty, condition or guarantee by the Supplier in relation to the Goods and/or Services;
- any claim in relation to property damage, personal injury or death that occurs in connection with the Goods and/or Services;
- any claim that the Goods, the Supplier IP, Contract IP or Protex Water’s use of the Supplier IP and/or Contract IP infringes a third party’s IP or Moral Rights; and
- any negligent act or omission by the Supplier; except to the extent such Loss is caused or contributed to by Protex Water.
- The Supplier acknowledges and agrees that Protex Water may recover from the Supplier any Loss suffered or incurred by an Indemnified Person as trustee for that Indemnified Person.
13.2 Compliance with Protex Water’s directions
- In conducting any claim, suit or action in respect of which the Supplier must indemnify Protex Water, the Supplier must, at the Supplier’s expense, comply with all reasonable directions from Protex Water.
13.3 Indemnity Does not Limit Other Remedies
- Protex Water’s right to be indemnified under clause 13.1 does not limit any other right or remedy available to Protex Water.
14. CONFIDENTIALITY
14.1 Confidentiality
- The parties must:
- take or cause to be taken all such reasonable precautions as may be necessary to maintain the secrecy and confidentiality of the other party’s Confidential Information at all times;
- immediately notify the Disclosing Party if the Recipient reasonably suspects or becomes aware of any unauthorised copying, use or disclosure in any form of the Disclosing Party’s Confidential Information; and
- at the request at any time of the Disclosing Party and at the Disclosing Party’s election, either return all of the Disclosing Party’s Confidential Information or destroy the same and provide confirmation of such destruction in a form reasonably required by the Disclosing Party.
- The parties must not, without the prior written consent of the Disclosing Party:
- disclose, provide or in any other way, communicate or make available any of the Disclosing Party’s Confidential Information to any person, other than representatives of the Recipient approved of in writing by the Disclosing Party, that are required to know the Disclosing Party’s Confidential Information in order to fulfil its obligations under these Terms;
- use or attempt to use the Disclosing Party’s Confidential Information for its own direct or indirect advantage or gain or in any manner which may cause or be calculated to cause injury or loss to the Disclosing Party; and
- use the Disclosing Party’s Confidential Information for any purpose other than to fulfil its obligations under these Terms or in the case of Protex Water to enjoy the full benefit of these Terms.
- The parties acknowledge that:
- that any unauthorised disclosure or misuse of any Confidential Information could have a material adverse effect on the Disclosing Party;
- that damages may be inadequate compensation for breach of these Terms and, subject to the court’s discretion, the Disclosing Party may restrain, by an injunction or similar remedy, any conduct or threatened conduct which is or will be a breach of these Terms; and
- that Confidential Information is not regarded as being in the public domain by reason only of the fact that some portion of it is public or that information is publicly available which, together with other information, could be used to produce the Disclosing Party’s Confidential Information.
14.2 Permitted Disclosure of Confidential Information
- Either party may disclose so much of the Disclosing Party’s Confidential Information as the Recipient is legally required to disclose by any applicable law or binding court order.
- A Recipient may disclose the Disclosing Party’s Confidential Information for the purposes of obtaining professional advice.
14.3 Exceptions
- The obligations under clause 14.1 do not apply to any of the Disclosing Party’s Confidential Information which:
- the Recipient can show was in its, or its representatives, possession at the time of disclosure to it and was not acquired directly or indirectly in breach of an obligation of confidence or under an obligation of confidence;
- was independently developed by the Recipient or the Recipient’s representatives without using the Disclosing Party’s Confidential Information;
- at the time of disclosure to the Recipient was in the public domain;
- after disclosure to the Recipient comes into the public domain otherwise than by disclosure in breach of these Terms; or
- the Recipient can show to be information which it acquired from a third party, provided that the Disclosing Party’s Confidential Information was not acquired by the third party unlawfully or under breach of any obligation of confidence by that third party to the Disclosing Party.
15. INTELLECTUAL PROPERTY RIGHTS
15.1 Contract IP
- All right, title and interest in the Contract IP vests in Protex Water on creation.
- The Supplier hereby assigns to Protex Water all right, title and interest in the Contract IP free of encumbrances and third party rights, and agrees to execute and deliver to Protex Water all further documents necessary to:
- confirm or give effect to these Terms; and
- enable Protex Water to register any Intellectual Property in respect of the Contract IP.
- The Supplier agrees not to disclose, use, modify, sub-licence or otherwise deal or purport to deal with any rights in the Contract IP except with Protex Water’s prior written consent or as expressly provided by these Terms.
15.2 Background IP
- Each party continues to own its Background IP.
- The Supplier grants to Protex Water a worldwide, non-exclusive, royalty-free, perpetual, irrevocable licence to use, exercise, develop and modify (and to sub-licence) the Supplier IP, for the purpose of receiving and enjoying the full benefit of the Goods and/or Services. The Supplier warrants that it has the right to grant this licence.
15.3 Third party rights
15.4 Moral rights
- To the extent that the Supplier has Moral Rights in the Supplier IP and the Contract IP, the Supplier waives those Moral Rights to the extent permitted by law and unconditionally consents to any use contemplated by the nature of the Goods and any reproduction, publication, adaptation or communication to the public of the Supplier IP and the Contract IP by or on behalf of Protex Water or any licensee or subsequent owner of copyright.
- To the extent that any person other than the Supplier has Moral Rights in the Supplier IP and the Contract IP, the Supplier warrants that the Supplier has obtained or procured for Supplier IP, and will obtain or procure for Contract IP prior to or immediately on creation, all consents or waivers from the individual creator necessary to ensure that Protex Water may do or authorise any acts or omissions in relation to the Supplier IP and the Contract IP without infringing the Moral Rights of any person.
16. SUPPLIER’S WARRANTIES
16.1 Express warranties
- it has the necessary facilities, equipment and personnel available to provide the Goods and/or Services in accordance with these Terms;
- all the Goods will:
- conform to the laws and regulations referred to in clause 11;
- be free from any inherent defect;
- be of merchantable quality and fit for the intended use;
- be warranted for a period of not less than (i) 12 months, and (ii) such longer period as generally warranted by the Supplier (whichever period is the greater); and
- be supplied to Protex Water free of any security interest (whether held by the Supplier or a third party), lien, encumbrance or other restriction as to title;
- the sale or use of the Goods will not infringe or contribute to the infringement of any third party Intellectual Property Rights;
- all work performed under these Terms will be carried out and completed with due skill and care by qualified personnel trained and skilled in the performance of the specific work involved in a proper and workmanlike manner using materials suitable for the purpose; and
- all information provided by the Supplier or on its behalf to Protex Water is true and correct in all material respects and not, whether by omission or otherwise, misleading.
17. FORCE MAJEURE
- Neither party is liable for any delay or failure to perform, or delay in performing, any one or more obligations pursuant to an Accepted Order to the extent such inability is caused by a Force Majeure Event.
- If a Force Majeure Event occurs, then the party affected will immediately notify the other party of the nature and likely duration of the Force Majeure Event and take all reasonable steps to reduce its effect and duration, including the making of any alternative arrangements for resuming the performance of obligations which may be practicable.
- If the Force Majeure Event continues for a period of 30 days or more, either party may terminate an Accepted Order immediately provided such Force Majeure Event is continuing at the date of termination.
18. TERMINATION
18.1 Termination on notice
18.2 Termination for cause
- The other party breaches any of the material terms of an Accepted Order and, if the breach is capable of remedy, does not remedy that breach within 14 days of notice requiring it to do so; or
- The other party is the subject of an Insolvency Event.
18.3 Effect of termination or expiry
19. RIGHTS AND OBLIGATIONS
19.1 Rights are cumulative
- The individual rights of each party under these Terms are cumulative and additional to any other or further rights provided by law or equity.
19.2 Waiver
- No waiver of a breach of any of these Terms will constitute a waiver of a breach of any other term, or a waiver on a future occasion of any breach of a term the breach of which has previously been waived.
20. RELATIONSHIP BETWEEN PARTIES
20.1 Parties’ relationship
- These Terms are not intended to create a partnership, joint venture or agency relationship between the parties.
20.2 No authority to bind Protex Water
- The Supplier does not have the right or authority to bind Protex Water by contract or otherwise or to assume or create, in writing or otherwise, any obligation of any kind, express or implied, or give any release, discharge or waiver in the name of or on behalf of Protex Water or to otherwise act or purport to act in any capacity whatsoever on Protex Water’s behalf.
21.ENTIRE AGREEMENT
- 21.1 These Terms (and any Accepted Order as and between Protex Water and the Supplier) constitute the whole agreement made between Protex Water and the Supplier. Without limiting the above, any provision contrary to the Terms which appear in a quotation, proposal or other communication issued by the Supplier at any time shall be null and void and of no legal effect.
- 21.2 These Terms can only be amended in writing signed by each of the parties.
- 21.3 The Supplier expressly waives all prior discussions, communications, negotiations and representations that may have been made by Protex Water that are in conflict with these Terms (and any Accepted Order as and between Protex Water and the Supplier).
22. GENERAL
22.1 Disclosure
- If the Supplier becomes aware of any matter which is likely to affect materially the ability of the Supplier to deliver the Goods and/or Services specified in an Accepted Order, it must immediately give notice of the matter to Protex Water.
22.2 Conflicts of interest
- The Supplier warrants that to the best of its knowledge, information and belief, no conflict of interest exists or is likely to arise in the provision of the Goods and/or Services, and the Supplier must notify Protex Water as soon as it becomes aware of any circumstances which might give rise to a conflict of interest.
22.3 Assignment
- The Supplier must not transfer, assign or subcontract any of its rights or obligations under these Terms without the prior written consent of Protex Water.
22.4 Further Assurances
- Each party must promptly do all further acts and execute and deliver all further documents (in form and content reasonably satisfactory to the receiving party) required by law or reasonably requested by the other party to give effect to these Terms.
22.5 Waiver
- Each party must promptly do all further acts and execute and deliver all further documents (in form and content reasonably satisfactory to the receiving party) required by law or reasonably requested by the other party to give effect to these Terms.
22.6 Severability
- If any provision of these Terms shall be declared or held to be invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions of these Terms shall not be affected, prejudiced or impaired and the offending provision shall be deemed as severed from these Terms.
22.7 Governing law and jurisdiction
- Each party must promptly do all further acts and execute and deliver all further documents (in form and content reasonably satisfactory to the receiving party) required by law or reasonably requested by the other party to give effect to these Terms.
22.8 These Terms
These Terms (or any part of these Terms) shall be available at the Website and may be amended, modified, added to or deleted at any time by Protex Water. Any such amendment, modification, addition or deletion to these Terms shall be legally effective from the date the amended Terms are displayed at the Website.8. INSPECTION AND ACCEPTANCE OF GOODS
8.1 Protex Water may inspect on delivery
8.2 Acceptance of Goods
- Goods will be accepted at the specified point of delivery only and shall remain subject to audit inspection and test by Protex Water.
- Acknowledgement by Protex Water’s representative of delivery of the Goods does not constitute acceptance that the Goods have been supplied in accordance with these Terms.
- Goods will be deemed to be accepted when Protex Water pays the Supplier for the Goods, unless Protex Water pays the Supplier for the Goods before satisfactory audit and inspection, in which case the payment will not be deemed to constitute its acceptance of the Goods.
- Protex Water’s audit, inspection or acceptance of or payment for some or all of the Goods does not in any way:
- change or affect the Supplier’s obligations under these Terms; or
- affect Protex Water’s rights to (A) make a claim for any loss it may suffer because of the Supplier’s breach of any warranty or failure to fulfil any of its other obligations under these Terms, and (B) reject any defective Goods.
8.3 Supplier to compensate for loss
- If:
- Goods do not satisfy the audit inspection and test procedure;
- any defect in Goods previously accepted existing at the time of delivery becomes apparent after such reasonable time from the date of delivery of the Goods; or
- the quantity delivered is less than that specified in the Accepted Order placed by Protex Water,
- replace the unacceptable Goods;
- rework the unacceptable Goods;
- make good the shortage; or
- if Protex Water has paid the Supplier, provide Protex Water with a credit for the unacceptable Goods.
- the Supplier must comply with its obligations under clause 13, even if the Supplier has replaced, or reworked unacceptable Goods or has made good the shortage.
- In each case under clause 8.3(a), Protex Water may take remediation steps and in such a case the Supplier shall be liable to reimburse to Protect Water all reasonable costs and expenses (including internal costs) incurred by Protex Water as a consequence.
9. PASSING OF TITLE AND RISK
9.1 Title and Risk
- (a) Title and risk in the Goods will pass to Protex Water on delivery of the Goods.
- Without limiting clause
10. PAYMENT
10.1 Invoices
10.2 Payment
- for correctly rendered invoices on or about 30 days from the end of the month in which the invoice was received; and
- no amount will be paid by Protex Water in respect of any part of the Goods and/or Services which Protex Water reasonably determines as not being supplied in accordance with the Terms.
10.3 Set off
11. LAWS AND REGULATIONS
Supplier to comply with laws and regulations
12. INSURANCES
12.1 Supplier insurance
- public liability and product liability for an amount not less than $20 million each and every loss, and in the aggregate in respect of products, and otherwise on terms and conditions acceptable to Protex Water;
- if nominated in the Schedule, Professional indemnity insurance for an amount not less than $5,000,000 for each and every loss; and
- workers’ compensation insurance as required by law;
13. LIABILITY AND INDEMNITY
13.1 Indemnity by Supplier
- The Supplier indemnifies Protex Water, its directors, employees, contractors and agents against any Loss which Protex Water, its directors, employees, contractors or agents (each and all Indemnified Persons) suffer, incur or are liable for in relation to:
- breach of any express or implied warranty, condition or guarantee by the Supplier in relation to the Goods and/or Services;
- any claim in relation to property damage, personal injury or death that occurs in connection with the Goods and/or Services;
- any claim that the Goods, the Supplier IP, Contract IP or Protex Water’s use of the Supplier IP and/or Contract IP infringes a third party’s IP or Moral Rights; and
- any negligent act or omission by the Supplier;
- The Supplier acknowledges and agrees that Protex Water may recover from the Supplier any Loss suffered or incurred by an Indemnified Person as trustee for that Indemnified Person.
13.2 Compliance with Protex Water’s directions
13.3 Indemnity Does not Limit Other Remedies
14. CONFIDENTIALITY
14.1 Confidentiality
- The parties must:
- take or cause to be taken all such reasonable precautions as may be necessary to maintain the secrecy and confidentiality of the other party’s Confidential Information at all times;
- immediately notify the Disclosing Party if the Recipient reasonably suspects or becomes aware of any unauthorised copying, use or disclosure in any form of the Disclosing Party’s Confidential Information; and
- at the request at any time of the Disclosing Party and at the Disclosing Party’s election, either return all of the Disclosing Party’s Confidential Information or destroy the same and provide confirmation of such destruction in a form reasonably required by the Disclosing Party.
- The parties must not, without the prior written consent of the Disclosing Party:
- disclose, provide or in any other way, communicate or make available any of the Disclosing Party’s Confidential Information to any person, other than representatives of the Recipient approved of in writing by the Disclosing Party, that are required to know the Disclosing Party’s Confidential Information in order to fulfil its obligations under these Terms;
- use or attempt to use the Disclosing Party’s Confidential Information for its own direct or indirect advantage or gain or in any manner which may cause or be calculated to cause injury or loss to the Disclosing Party; and
- use the Disclosing Party’s Confidential Information for any purpose other than to fulfil its obligations under these Terms or in the case of Protex Water to enjoy the full benefit of these Terms.
- The parties acknowledge that:
- that any unauthorised disclosure or misuse of any Confidential Information could have a material adverse effect on the Disclosing Party;
- that damages may be inadequate compensation for breach of these Terms and, subject to the court’s discretion, the Disclosing Party may restrain, by an injunction or similar remedy, any conduct or threatened conduct which is or will be a breach of these Terms; and
- that Confidential Information is not regarded as being in the public domain by reason only of the fact that some portion of it is public or that information is publicly available which, together with other information, could be used to produce the Disclosing Party’s Confidential Information.
14.2 Permitted Disclosure of Confidential Information
- Either party may disclose so much of the Disclosing Party’s Confidential Information as the Recipient is legally required to disclose by any applicable law or binding court order.
- A Recipient may disclose the Disclosing Party’s Confidential Information for the purposes of obtaining professional advice.
14.3 Exceptions
- The obligations under clause 14.1 do not apply to any of the Disclosing Party’s Confidential Information which:
- the Recipient can show was in its, or its representatives, possession at the time of disclosure to it and was not acquired directly or indirectly in breach of an obligation of confidence or under an obligation of confidence;
- was independently developed by the Recipient or the Recipient’s representatives without using the Disclosing Party’s Confidential Information;
- at the time of disclosure to the Recipient was in the public domain;
- after disclosure to the Recipient comes into the public domain otherwise than by disclosure in breach of these Terms; or
- the Recipient can show to be information which it acquired from a third party, provided that the Disclosing Party’s Confidential Information was not acquired by the third party unlawfully or under breach of any obligation of confidence by that third party to the Disclosing Party.
15. INTELLECTUAL PROPERTY RIGHTS
15.1 Contract IP
- All right, title and interest in the Contract IP vests in Protex Water on creation.
- The Supplier hereby assigns to Protex Water all right, title and interest in the Contract IP free of encumbrances and third party rights, and agrees to execute and deliver to Protex Water all further documents necessary to:
- confirm or give effect to these Terms; and
- enable Protex Water to register any Intellectual Property in respect of the Contract IP.
- The Supplier agrees not to disclose, use, modify, sub-licence or otherwise deal or purport to deal with any rights in the Contract IP except with Protex Water’s prior written consent or as expressly provided by these Terms.
15.2 Background IP
- Each party continues to own its Background IP.
- The Supplier grants to Protex Water a worldwide, non-exclusive, royalty-free, perpetual, irrevocable licence to use, exercise, develop and modify (and to sub-licence) the Supplier IP, for the purpose of receiving and enjoying the full benefit of the Goods and/or Services. The Supplier warrants that it has the right to grant this licence.
15.3 Third party rights
15.4 Moral rights
- To the extent that the Supplier has Moral Rights in the Supplier IP and the Contract IP, the Supplier waives those Moral Rights to the extent permitted by law and unconditionally consents to any use contemplated by the nature of the Goods and any reproduction, publication, adaptation or communication to the public of the Supplier IP and the Contract IP by or on behalf of Protex Water or any licensee or subsequent owner of copyright.
- To the extent that any person other than the Supplier has Moral Rights in the Supplier IP and the Contract IP, the Supplier warrants that the Supplier has obtained or procured for Supplier IP, and will obtain or procure for Contract IP prior to or immediately on creation, all consents or waivers from the individual creator necessary to ensure that Protex Water may do or authorise any acts or omissions in relation to the Supplier IP and the Contract IP without infringing the Moral Rights of any person.
16. SUPPLIER’S WARRANTIES
16.1 Express warranties
- it has the necessary facilities, equipment and personnel available to provide the Goods and/or Services in accordance with these Terms;
- all the Goods will:
- conform to the laws and regulations referred to in clause 11;
- be free from any inherent defect;
- be of merchantable quality and fit for the intended use;
- be warranted for a period of not less than (i) 12 months, and (ii) such longer period as generally warranted by the Supplier (whichever period is the greater); and
- be supplied to Protex Water free of any security interest (whether held by the Supplier or a third party), lien, encumbrance or other restriction as to title;
- the sale or use of the Goods will not infringe or contribute to the infringement of any third party Intellectual Property Rights;
- all work performed under these Terms will be carried out and completed with due skill and care by qualified personnel trained and skilled in the performance of the specific work involved in a proper and workmanlike manner using materials suitable for the purpose; and
- all information provided by the Supplier or on its behalf to Protex Water is true and correct in all material respects and not, whether by omission or otherwise, misleading.
17. FORCE MAJEURE
- Neither party is liable for any delay or failure to perform, or delay in performing, any one or more obligations pursuant to an Accepted Order to the extent such inability is caused by a Force Majeure Event.
- If a Force Majeure Event occurs, then the party affected will immediately notify the other party of the nature and likely duration of the Force Majeure Event and take all reasonable steps to reduce its effect and duration, including the making of any alternative arrangements for resuming the performance of obligations which may be practicable.
- If the Force Majeure Event continues for a period of 30 days or more, either party may terminate an Accepted Order immediately provided such Force Majeure Event is continuing at the date of termination.
18. TERMINATION
18.1 Termination on notice
18.2 Termination for cause
Either party may terminate an Accepted Order immediately by written notice to the other party if:
- the other party breaches any of the material terms of an Accepted Order and, if the breach is capable of remedy, does not remedy that breach within 14 days of notice requiring it to do so; or
- the other party is the subject of an Insolvency Event.
18.3 Effect of termination or expiry
On termination or expiry of an Accepted Order, the parties must cease using and either return to the Disclosing Party or destroy, at the Disclosing Party’s direction, any of the Disclosing Party’s Confidential Information, IP, and any other documents, information or other property supplied by or belonging to the other party which is in the possession of the Recipient.
19. RIGHTS AND OBLIGATIONS
19.1 Rights are cumulative
The individual rights of each party under these Terms are cumulative and additional to any other or further rights provided by law or equity.
19.2 Waiver
No waiver of a breach of any of these Terms will constitute a waiver of a breach of any other term, or a waiver on a future occasion of any breach of a term the breach of which has previously been waived.
20. RELATIONSHIP BETWEEN PARTIES
20.1 Parties’ relationship
These Terms are not intended to create a partnership, joint venture or agency relationship between the parties.
20.2 No authority to bind Protex Water
The Supplier does not have the right or authority to bind Protex Water by contract or otherwise or to assume or create, in writing or otherwise, any obligation of any kind, express or implied, or give any release, discharge or waiver in the name of or on behalf of Protex Water or to otherwise act or purport to act in any capacity whatsoever on Protex Water’s behalf.
21. ENTIRE AGREEMENT
21.1 These Terms (and any Accepted Order as and between Protex Water and the Supplier) constitute the whole agreement made between Protex Water and the Supplier. Without limiting the above, any provision contrary to the Terms which appear in a quotation, proposal or other communication issued by the Supplier at any time shall be null and void and of no legal effect.
21.2 These Terms can only be amended in writing signed by each of the parties.
20.3 The Supplier expressly waives all prior discussions, communications, negotiations and representations that may have been made by Protex Water that are in conflict with these Terms (and any Accepted Order as and between Protex Water and the Supplier).
22. GENERAL
22.1 Disclosure
If the Supplier becomes aware of any matter which is likely to affect materially the ability of the Supplier to deliver the Goods and/or Services specified in an Accepted Order, it must immediately give notice of the matter to Protex Water.
22.2 Conflicts of interest
The Supplier warrants that to the best of its knowledge, information and belief, no conflict of interest exists or is likely to arise in the provision of the Goods and/or Services, and the Supplier must notify Protex Water as soon as it becomes aware of any circumstances which might give rise to a conflict of interest.
22.3 Assignment
The Supplier must not transfer, assign or subcontract any of its rights or obligations under these Terms without the prior written consent of Protex Water.
22.4 Further Assurances
Each party must promptly do all further acts and execute and deliver all further documents (in form and content reasonably satisfactory to the receiving party) required by law or reasonably requested by the other party to give effect to these Terms.
22.5 Waiver
Failure or omission by a party to require strict or timely compliance with any provision of these Terms will not affect any right of that party to remedies it may have in respect of any breach of a provision.
22.6 Severability
If any provision of these Terms shall be declared or held to be invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions of these Terms shall not be affected, prejudiced or impaired and the offending provision shall be deemed as severed from these Terms.
22.7 Governing law and jurisdiction
These Terms are governed by and construed in accordance with the law of Victoria and the parties submit to the exclusive jurisdiction of the Courts of Victoria.
22.8 These Terms
These Terms (or any part of these Terms) shall be available at the Website and may be amended, modified, added to or deleted at any time by Protex Water. Any such amendment, modification, addition or deletion to these Terms shall be legally effective from the date the amended Terms are displayed at the Website.
VERSION DATED: June 2024