In these conditions (‘Conditions’): -
(a) ‘Company’ means Louder Productions Pty Ltd trading as Amplify Brand Experience.
(b) ‘Supplier’ means the provider of the Goods and/or Services as specified in the Order.
(c) ‘Order’ means the purchase order issued on the Company’s behalf and bearing a PO Number;
(d) ‘PO Number’ means the unique number by which a specific Order is identified;
(e) ‘Goods’ means the finished goods described in the Order;
(f) ‘Services’ means the services described in the Order;
(g) ‘Specification’ means the technical description (if any) of the Goods or Services given or referred to in the Order.
2. ACCEPTANCE AND VARIATION OF CONDITIONS
(a) The Order is placed on these Conditions which shall override any other conditions stipulated or incorporated or referred to by the Supplier or in any course of dealing established between the Company and the Supplier. Subject to Clause 2(b), no modification of these Conditions shall be effective unless in writing and signed by or on behalf of both the Company and the Supplier.
(b) The Company shall be entitled to vary the quantity, quality or design of the Goods or Services to a reasonable extent after acceptance of the Order by the Supplier and price and delivery shall be adjusted accordingly. Such variations shall be in writing and shall be duly signed on behalf of the Company.
(c) The price payable in respect of the Goods and/or Services shall be no more than stated in the Order unless otherwise agreed in writing by the Company.
(c) The Company will not be liable for any Goods or Services supplied or work done without an Order. The PO Number of the relevant Order must be quoted on all documents and correspondence.
(e) The Company relies on the expertise of the Supplier where the Company has sought their advice or recommendations.
(f) The terms of each Order and the terms of these Conditions together form the agreement between the parties in respect of the provision of the relevant Goods and/or Services (the “Agreement”).
(a) The Goods, properly labelled and packed, and secured in such manner as to reach their destination in good condition, shall be delivered by and at the Supplier’s risk and expense to the place stated in the Order or such other place as may be agreed in writing by the Company and the Supplier.
(b) If so requested by the Supplier, the Company will return any re-useable packing materials to the Supplier at the Supplier’s risk and expense.
(c) The Company reserves the right to cancel an Order or any part thereof without incurring any liability to the Supplier if the delivery is not made within the time specified in the Order. On such cancellation the Company shall be entitled:
(i) to return to the Supplier at the Supplier’s risk and expense any Goods already delivered under an Order which cannot be effectively and commercially used and to recover from the Supplier any monies paid by the Company in respect of such Goods; and
(ii) to receive from the Supplier any additional expenditure reasonably incurred by the Company in obtaining other goods in replacement of those in respect of which the Order has been terminated.
(d) Goods delivered in excess of the quantities specified in this Order may be accepted by the Company at its discretion, but if not so accepted will be returned by the Company at the risk and expense of the Supplier. Any storage charges in respect of the same will be the Supplier’s responsibility and will be paid by the Supplier to the Company on demand.
Ownership in Goods supplied by the Supplier hereunder shall pass to the Company on delivery or collection by the Company without prejudice to any right of rejection which may accrue to the Company under these conditions or under general law.
(a) Unless otherwise specified herein, no more than the price of the Goods and/or Services stated under the Order, shall be payable, subject to approval on or before the last day of the calendar month following the month of delivery of the Goods and/or Services (in accordance with clause 3 above).
(b) No carriage charges or charges for packing, boxing, crating, barrels, cases, containers or other packaging shall be payable by the Company unless otherwise agreed in writing by the Company and the Supplier.
(c) Should the Supplier deliver Goods prior to the date agreed or specified by the Company, the Company reserves the right to delay payment to the due date set out in the Order.
(d) The Company shall be entitled to take advantage of any better terms offered by the Supplier to any third party in connection with the purchase of Goods whether relating to time for payment discounts or otherwise and the price or payment terms referred to herein shall be varied accordingly.
(e) It is a strict condition under each purchase order that the Supplier must submit all invoices for their Services or Goods provided within 180 days of supply or delivery.
(f) Unless otherwise agreed, prices set out in an Order will be exclusive of GST, which will be payable in addition upon presentation of a validly constituted tax invoice.
6. GOODS AND SERVICES
(a) The Goods or Services shall be provided with a high level of competence, and will conform as to quantity, quality and description with the particulars stated in the Order. The Supplier warrants that Goods shall be of merchantable quality and fit for purpose.
(b) The Goods or Services shall be provided pursuant to the Australian Consumer Law and shall otherwise conform with the standards and regulations of any government body or other regulatory body specified in the Order and any relevant requirements of any statute.
(c) In the event the Company reasonably considers that any invoice submitted by Supplier is defective or relates to Goods supplied or Services performed otherwise than in accordance with Supplier’s obligations under this Agreement, the Company shall be entitled to withhold payment of the disputed amount (without prejudice to any other rights or remedies it may have) pending resolution of the dispute between the parties (each acting in good faith).
(d) The Supplier grants the Company a licence to use any intellectual property rights which arise from the Services, which the Supplier has supplied to the Company, to the extent required by the Company to carry on its ordinary business. That licence is non-exclusive, worldwide, perpetual and royalty-free.
(e) Nothing in this Agreement grants the Supplier the right to use any intellectual property rights of the Company. Any such grant of rights will be made separately in writing and signed by the Company.
(f) The Supplier will maintain all the licences, permissions, consents and permits that it needs to lawfully carry out its obligations under this Agreement.
(g) The Supplier warrants that the Goods and Services and the Company’s use of them will not infringe the rights (including intellectual property rights) of any third party, and the Supplier indemnifies the Company against any claims for infringement of any third party’s rights, excluding those related to any adaptations made by the Company, its delegates or any third party after the applicable warranty conditions of the Supplier’s work has expired, arising out of the Company’s proper use of any work resulting from the Services. The Supplier also indemnifies the Company from and against any costs and damages that we may incur in those infringement claims.
7. CONFIDENTIALITY AND PUBLICITY
(a) Supplier shall, and shall procure that its employees and sub-contractors shall, keep confidential all information of a commercial or technical nature disclosed to Supplier by or on behalf of the Company for the purpose of the Agreement.
(b) Supplier shall not seek to acquire by this Agreement or any activity under it, or otherwise, nor represent in any way that it is entitled to any intellectual property belonging to the Company or any of its Clients or associates which shall remain the sole property of that party or its associates respectively
(c) Supplier will not at any time, within or outside of the term of this Agreement, promote an association with the Company or any of its Clients or associates without the written permission of the Company.
(d) Supplier will not at any time, within or outside of the term of this Agreement, use or approach any Clients or associates of the Company, either past or present, to use or seek rights to promote an association with the Company or any of its Clients or associates without the written permission of the Company.
8. RESPONSIBILITY FOR INFORMATION
Supplier shall be responsible for any errors or omissions in any drawings, calculations, packaging details or other particulars supplied by Supplier, whether such information has been approved by the Company or not, provided that such errors or omissions are not due to inaccurate information furnished in writing by the Company.
9. ASSIGNMENT AND SUBCONTRACTING
a) Supplier’s rights and obligations under the Agreement may not be assigned in whole or in part without the prior written consent of the Company (which may be withheld in its discretion).
b) Nothing contained in this Agreement authorises the Supplier to enter into any contractual arrangement in the name of or on behalf of the Company.
c) The Supplier must not subcontract any of its obligations under this Agreement without the prior written consent of the Company.
10. FORCE MAJEURE
The Company reserves the right to cancel an Order or any uncompleted part thereof without incurring any liability to the Supplier in the event that the Company’s requirements for the Goods or Services ordered ceases for the time being on account of fires, strikes, lock-outs, or other industrial action, any acts or restraints of any government or public authority, war, the outbreak of hostilities of any kind or any other matter outside of the Company’s control.
The Supplier confirms that all its employees are fully covered by workers compensation insurance and hereby indemnifies the Company against any loss, damage, costs claim and expenses incurred or suffered by the Company in respect of any accident or injury suffered by any employee of the Supplier whilst engaged in carrying out any work under this Agreement. The Supplier also confirms that it carries Professional Indemnity and Public Liability Insurances at levels appropriate for its business. The Supplier undertakes that it will produce a copy of the policy relating to such insurance if so requested by the Company.
12. LIABILITY AND INDEMNITY
(a) The Supplier hereby indemnifies the Company and will keep the Company indemnified from and against any loss, action, suit, claim, demand, cost, damage, or expense arising out of any breach of this Agreement by the Supplier.
(b) The Company’s total aggregate liability to the Supplier in respect of an Order is the total price for the supply of the relevant Goods and/or Services as set out in that Order.
(c) At no time will the Company be liable to the Supplier for any special, incidental, consequential, or indirect damage or loss, nor for any loss of profits or goodwill, loss of contracts, loss of future opportunity, or loss from business interruption whether arising directly or indirectly out of this Agreement.
13. ETHICAL STANDARDS AND HUMAN RIGHTS
Unless otherwise required or prohibited by law, Supplier warrants to supply Goods or Services under the terms of the Agreement in an ethical fashion and not in breach of any applicable human rights legislation, treaty, or instrument.
14. ANTI BRIBERY AND CORRUPTION REQUIREMENTS
The Company requires compliance with the highest ethical standards and all anti-corruption laws applicable in Australia.
15. ENVIRONMENTAL POLICY
The Supplier shall perform the Services in accordance with the Company’s environmental policy, which is to conserve energy, water, wood, paper and other resources, reduce waste and phase out the use of ozone depleting substances and minimise the release of greenhouse gases, volatile organic compounds and other substances damaging to health and the environment.
16. TERMINATION BY THE COMPANY
Without prejudice to any other rights the Company may have, the Company may cancel an Order and terminate this Agreement if:
(a) the Supplier becomes bankrupt or insolvent or being a company makes an arrangement or composition with its creditors or a petition is presented or resolution passed for an administration order to be made against the Supplier for its winding-up (other than for the purpose of amalgamation or reconstruction) or being an individual or partnership makes any composition or arrangement with his or their creditors or has a receiving order made against him or them; or
(b) the Supplier ceases to trade in the ordinary course of business; or
(c) the Supplier is in breach of a material term of this Agreement, which is not capable of remedy, or is in breach of a material term of this Agreement which is capable of remedy and has not remedied the breach within 48 hours of receipt of a notice to remedy from the Company.
17. ENTIRE AGREEMENT
These Conditions and each Order together constitute the entire agreement between the parties in respect of the supply of the Goods and/or Services set out in that Order and cannot be altered other than in writing signed by both parties.
Failure or delay by the Company to exercise any right under this Agreement will not constitute or be deemed a waiver or forfeiture of that right.
The warranties, indemnities, and obligations of confidentiality contained in this Agreement are continuing obligations and will survive the expiry or termination of this Agreement.
Any provision of this Agreement that is invalid or unenforceable in any jurisdiction is to be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. To the extent that any provision cannot be read down such provision is severed from this Agreement to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this Agreement or the validity or enforceability of that provision in any other jurisdiction.
21. RELATIONSHIP OF THE PARTIES
The parties enter this Agreement as independent contractors, and not as employer and employee, partners or joint venturers, principal and agent, or in any other capacity.
This Agreement is governed by and construed in accordance with the laws of New South Wales and the Supplier submits to the exclusive jurisdiction of the courts exercising jurisdiction in New South Wales.