1. Application
These terms and conditions apply to and form part of all purchase orders issued by FOXTEL Management Pty Limited on behalf of the FOXTEL Partnership ("FOXTEL") for the purchase of goods and/or services. The supplier of any goods and/or services ("the Supplier") is deemed to have accepted these terms and conditions by supplying the goods and/or services to FOXTEL or by accepting any payment with respect to the goods and services. If there is a contract in place between FOXTEL and the Supplier, the terms of the contract will prevail to the extent of any inconsistency with any provision of these terms and conditions.
2. Orders
2.1 Goods/services should only be provided after the supplier has received a formal purchase order from FOXTEL. FOXTEL will not be held liable for any goods/services provided prior to the issuance of a valid purchase order by FOXTEL.
2.2 An order is deemed to have been accepted by the Supplier unless FOXTEL is advised to the contrary in writing within seven days of the date shown on the order.
2.3 FOXTEL shall have the right to cancel an order without liability unless accepted by the Supplier within 14 days of the date of the purchase order.
2.4 Any change to a purchase order must be put in writing and agreed and accepted by both FOXTEL and the Supplier.
3. Supply
3.1 The date and address of delivery of goods and the provision of any services shall be as specified in the purchase order unless otherwise agreed in writing between FOXTEL and the Supplier. Delivery shall be made between the hours of 8:30 am and 5:00 pm Monday to Friday, except for bank and public holidays unless otherwise agreed.
3.2 The goods supplied by the Supplier shall:-
(I) be of good and merchantable quality;
(II) be fit in every way for the purpose for which they are intended;
(III) if purchased after the review of a sample, comply in all respects with the sample and shall not incorporate any modification or variation without express written approval from FOXTEL; and
(IV) be of a good and proper standard of workmanship.
3.3 The Supplier shall, upon receiving notice from FOXTEL, replace or repair, free of charge, any goods damaged or lost in transit. The delivery of the goods in such instance will not be deemed to have taken place until replacement or repaired goods have been delivered by the Supplier to FOXTEL.
3.4 FOXTEL will not be charged by the Supplier for any packing materials unless such charge is expressly agreed in writing in the purchase order.
3.5 The goods and/or services supplied by the Supplier shall comply with all applicable laws and regulations, including but not limited to product standards and safety for the goods and/or services.
3.6 The Supplier must comply with the timing, method and quantity requirements for the delivery of the goods and/or supply of services ordered.
3.7 The goods supplied by the Supplier shall be suitably packed and prepared for shipment so as to secure the goods against damage.
3.8 The goods and/or services must pass FOXTEL's quality control inspection and the Supplier agrees to allow FOXTEL's inspectors access to the Supplier's premises for the purposes of quality control inspection.
3.9 If a breach of any essential provision of the purchase order occurs, the Supplier will be in default and FOXTEL can take the steps described in these terms and conditions, in addition to any remedies available at law, to remedy the default.
3.10 At least 7 days before the final date for payment of any amount due to the Supplier, FOXTEL will give notice to the Supplier of any amounts of the actual cost claimed by the Supplier that FOXTEL either objects to and is seeking to withhold or of any amounts that FOXTEL is owed by the Supplier (including any amounts previously overpaid to the Supplier) which FOXTEL is seeking to withhold. Any notice will set out the sum or sums proposed to be withheld, the ground or grounds for withholding payment and the amount attributable to each ground.
4. Title
Property in the goods shall pass to FOXTEL on the earlier of delivery or payment of the purchase price, without prejudice to any right of rejection which may accrue to FOXTEL in relation to the purchase order.
5. Remedies
5.1 Where the goods delivered are defective in design, function, material or workmanship, or damaged, FOXTEL shall have the right to notify the Supplier and in addition to any other rights available to FOXTEL at law, require the Supplier to:-
(a) carry out necessary repairs to the goods to correct such defect; or
(b) return the goods to the Supplier for, at FOXTEL’s election, a credit, repair or replacement.
The costs of FOXTEL exercising either of these options shall be at the Supplier's expense.
5.2 Where there is any breach of these terms and conditions in relation to the services provided by the Supplier, FOXTEL shall have the right to notify the Supplier and in addition to any rights available to FOXTEL at law, require the Supplier to:
(a) supply the services again; or
(b) meet FOXTEL’s costs in having another party supply the services again.
5.3 If the Supplier:
(a) is late with any delivery of goods or provision of any services, FOXTEL or
(b) if the goods and/or services supplied pursuant to the purchase order are not of the standard required by FOXTEL in section 3 of these terms and conditions,
FOXTEL shall be entitled, in addition to other remedies available within these terms and conditions, at law, or specified in the purchase order, to cancel the delivery of the goods or provision of the services (as applicable) and any other goods or services not yet supplied and be paid compensation by the Supplier for any costs and losses involved, including the credit, replacement, repair and freight of the goods (where applicable).
5.4 Where delays by the Supplier impacts FOXTEL’s ability to supply FOXTEL’s customers, FOXTEL may seek to claim compensation from the Supplier for losses sustained.
6. Warranty and Indemnity
6.1 The Supplier warrants that:
(a) the Supplier has the right to and shall supply all goods free from any charges, liens or other encumbrances;
(b) the Supplier shall not sub-contract or otherwise arrange for another person to perform any of its obligations under these terms and conditions without the prior written consent of FOXTEL;
(c) All services will be performed by appropriately qualified and trained personnel, with due care and diligence and to such high standard of quality as it is reasonable for FOXTEL to expect in the circumstances;
(d) The Supplier will at all times maintain insurance with a reputable insurance company against all liability in the provision of the goods/and or services under these terms and conditions, and on request produce evidence of purchase of, the following insurance on an occurrence basis:
(i) Public and product liability insurance with a minimum coverage of $5 million for each occurrence of bodily injury and property damage; and
(ii) Workers compensation, employee liability and comprehensive motor vehicle insurance; and
(e) The Supplier will be insured in respect of potential liability, loss or damage arising at common law or under any statute in respect of claims for property damage, personal injury, public liability and professional indemnity relevant to the performance of the Service Provider's obligations pursuant to the purchase order.
6.2 The Supplier indemnifies FOXTEL and keeps FOXTEL indemnified from and against any claim, demand, cause of action, damage, loss, consequential loss, cost, expense (including legal expense) made against or suffered by FOXTEL arising out of or in connection with or as a result of:-
(a) the goods and/or services supplied or to be supplied under this purchase order;
(b) any actual or threatened infringement of a third party's industrial and/or intellectual property rights relating to the goods; and
(c) FOXTEL breaching contracts or arrangements it has entered into in reliance upon the acknowledgement and acceptance of the Supplier in clause 1 where the Supplier, for whatever reason, fails to comply with these terms and conditions or the conditions of the purchase order.
6.3 The Supplier will at all times maintain a business continuity and/or disaster recovery plan and provide evidence when requested by FOXTEL.
7. Termination
7.1 The purchase order may be cancelled by FOXTEL in the event of the Supplier at any time failing or being unable to comply with any of the terms or conditions either express or implied in relation to the sale of the goods or supply of the services in any way.
7.2 The Supplier may terminate this purchase order forthwith by written notice to FOXTEL if:-
(a) a receiver, official receiver, liquidator, provisional liquidator, official manager, agent, receiver and manager or similar officer is appointed or application is made to a court for the appointment of such a person to the Supplier;
(b) the Supplier enters into or resolves to enter into a scheme of arrangement or composition with or assignment for the benefit of its creditors or it proposes a reorganisation, moratorium or other administration involving its creditors or resolves to wind itself up or otherwise dissolve itself or give notice of intention so to resolve;
(c) the Supplier is presumed to be insolvent within the meaning of the Corporations Act, 2001;
(d) without the prior written consent of the party, ceases to carry on its business or threatens to do so; or,
(e) the business of the Supplier is sold or otherwise comes under the control of any person other than the Supplier or is purported to be sold, mortgaged or otherwise alienated or encumbered.
8. Price
8.1 The Supplier shall state the price of goods and/or services to be provided to FOXTEL:
(i) in Australian currency;
(ii) exclusive of any GST; and
(iii) inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery and any duties, taxes or levies other than GST.
8.2 All prices quoted in the purchase order shall not be increased, unless agreed in writing by FOXTEL.
8.3 Unless otherwise agreed, a separate invoice must be rendered for each individual consignment of goods or performance of services and all invoices must quote the order number.
8.4 The order number must be quoted by the Supplier on all delivery notes, invoices, advice notes, correspondence, packing lists and containers.
8.5 Other than any amounts the subject of a bona fide dispute, invoices will be paid within 30 days of the end of the month in which the invoice is received, or such other time period agreed by the parties, provided that the invoice is correctly rendered, and complies with FOXTEL’s order.
8.6 Notwithstanding any other conflicting provisions, FOXTEL is not obliged to pay for any taxable supply made by the Supplier unless and until FOXTEL receives a GST tax invoice or adjustment notice for that supply.
9. Intellectual Property
9.1 Unless otherwise agreed in writing, all copyright and other intellectual property rights in any products, software, drawing, reports or other documents generated, created or produced by the Supplier in the performance of the services for FOXTEL shall vest in and be the property of FOXTEL. Supplier shall execute all documents and do all acts required by FOXTEL for the purpose of giving effect to this clause.
9.2 The Supplier grants FOXTEL a non-exclusive right to use (and if necessary sub-license) any software supplied by the Supplier to FOXTEL for the purposes of enabling FOXTEL to use, access or take the benefit of the goods or services supplied by the Supplier. FOXTEL shall not make any copies or duplicates of the software without the Supplier’s prior written consent save for backup purposes. FOXTEL may permit third parties contracted to provide services to FOXTEL to use the software to the extent reasonably necessary for the performance of such services.
10. General
10.1 If any part of the purchase order or these terms and conditions is illegal or unenforceable, the remainder continues to be enforceable to the full extent possible.
10.2 The Supplier is an independent contractor without authority to bind FOXTEL by contract or otherwise and neither the Supplier nor the Supplier’s personnel are agents or employees of FOXTEL by virtue of these terms and conditions.
10.3 The Supplier is responsible for obtaining at its own expense, all licences, permission, permits or authority required to provide the goods and/or services, including any relevant intellectual property rights.
10.4 Nothing in this Agreement is to be taken to imply that FOXTEL may not acquire goods and/or services of the same kind as those provided by the Supplier at any time from any other person.
10.5 The Supplier acknowledges that it may not use FOXTEL as a named customer/partner in any and all marketing material without written permission from FOXTEL.
10.6 The Supplier acknowledges it has sole responsibility in relation to payment, if any, of superannuation, workers' compensation and taxes incidental to employment in respect of its own personnel. The Supplier further acknowledges that neither it nor its personnel have, pursuant to these terms and conditions, any entitlement from FOXTEL in relation to any form of employment or related benefit.
10.7 The Supplier must comply with any of FOXTEL’s policies and procedures relevant to the supply of goods or services to FOXTEL.
10.8 The obligations under these terms and conditions are not assignable by the Supplier without the written consent of FOXTEL.
10.9 No variation of the purchase order shall be binding on FOXTEL unless made in writing and signed by a duly authorised officer of FOXTEL.
10.10 The Supplier must comply with: all the provisions of the Privacy Act 1988 as amended; the National Privacy Principles dealing with the collection, use and storage of personal information about individuals; and FOXTEL’s Privacy Policy and Procedure.
10.11 The Supplier must ensure that its officers, employees, contractors and agents keep confidential all information relating to the provision of products and/or services to FOXTEL, including these terms and conditions, and will not use or disclose that information except in order to perform its obligations under these terms and conditions.
10.12 Where the provision of any goods or services by the Supplier requires work being carried out on FOXTEL’s premises, the Supplier and its employees, agents and sub-contractors shall observe all statutory rules and regulations and all of FOXTEL’s rules and regulations.
10.13 The applicable law for the interpretation and enforcement of this purchase order is that of the State of New South Wales and the Supplier hereby agrees to submit to the exclusive jurisdiction of the courts of New South Wales for the purpose of settling any disputes hereunder.
