Purchase of Services
1. Definitions and Interpretation
In these Terms and any Contract, unless the contrary intention appears:
Bayer Australia Limited (ABN 22 000 138 714)
Business Day means a day that is not a Saturday, Sunday or public holiday in New South Wales or, for deliveries of Services, at the place of delivery.
Contract means a contract of sale as referred to in clause 2.4.
Delivery Terms means the delivery terms specified in an Order.
GST has the same meaning as in the A New Tax System (Goods & Services Tax) Act 1999 (Cth) (as amended).
Insolvency Event means circumstances in which a party is unable to pay its debts as they fall due or otherwise takes any corporate action or any steps are taken or legal proceedings are started for: (a) its winding-up, dissolution, liquidation, or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by the other party; (b) the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it or of any of its revenues and assets; or (c) seeking protection or being granted protection from its creditors, under any applicable legislation.
Intellectual Property means statutory and other rights in respect of copyright and neighbouring rights, all rights in relation to inventions, patents, plant varieties, registered and unregistered trade marks, registered and unregistered designs, circuit layouts, rights to require information be kept confidential, and other rights arising out of intellectual activity in the industrial, scientific, literary or artistic fields, but does not include moral rights that are not transferable.
Order means a purchase order for Services which has been accepted or is deemed to have been accepted by Supplier under clause 2.2, but excluding any terms or conditions printed on or referred to in Supplier’s Service list, acceptance of an Order or other documentation unless expressly agreed to in writing by Bayer.
Price means the price for the Services payable by Bayer to Supplier under clause 3.1, as specified in the relevant Order.
Services mean the services purchased or to be purchased by Bayer from Supplier which are the subject of a Contract.
Supplier means the person who is to supply Services to Bayer under a Contract.
Terms means these terms and conditions of purchase.
2.1 Bayer may from time to time request Supplier to supply it with quantities of Services. All orders for Services will be placed by Bayer in writing using its standard purchase order form or such other form as may be reasonably required by Bayer from time to time.
2.2 Supplier must confirm acceptance of each order of Services or notify any reason for non-acceptance in writing within 5 Business Days of receipt. All orders which are not responded to within that period will be deemed to have been accepted by Supplier.
2.3 Once accepted or deemed to have been accepted by Supplier, an Order is final and binding upon the parties.
2.4 Upon the acceptance or deemed acceptance of each Order by Supplier, a separate contract of sale (Contract) will arise. Each Contract will comprise the accepted Order and these Terms. If there is any inconsistency between these Terms and another provision in a Contract then the other provision will prevail over these Terms only to the extent of the inconsistency.
2.5 For the avoidance of doubt, no terms or conditions of Supplier, including any terms or conditions printed on or referred to in any Service list, acceptance of an Order or other documentation, will be binding on Bayer or have any legal effect unless expressly agreed to in writing by Bayer.
2.6 Supplier must supply Services to Bayer in accordance with the relevant Order.
3. Price and Payment
3.1 Bayer must pay the Price for Services delivered to it within 30 days from the end of the month of the date of Supplier’s invoice. The applicable Price will be the Price current at the time of acceptance or deemed acceptance of the relevant Order by Supplier, provided that if Supplier reduces its prices for any Services between the date of acceptance or deemed acceptance of the relevant Order and the date of dispatch, the Price valid at the date of dispatch will apply.
3.2 Bayer may withhold payment of the Price under any Contract for Services which do not comply with Supplier’s obligations under clause 4.1 and 4.3 or Supplier’s warranties under clause 5 or are otherwise defective, and may set-off any amounts owed by Supplier to Bayer under any Contract or these Terms against the Price payable by Bayer under any Contract.
3.3 The Price and any other payments by Bayer to Supplier under these Terms or any Contract are to be made in Australian currency and will be made by bank draft made payable to Supplier or, at Supplier’s option, direct deposit into an Australian bank account notified by Supplier in writing at least 2 Business Days prior to the due date.
3.4 Unless GST is expressly included, the consideration payable under any Contract for any supply made under or in connection with the Contract does not include GST (if any is payable) which must be paid as an additional amount.
3.5 Each party agrees to do all things that may be necessary to enable or assist the other party to claim any input tax credit, adjustment or refund in relation to GST paid or payable in respect of any supply made under or in connection with these Terms or any Contract. A party is not obliged to make a payment if the other party does not provide a valid tax invoice.
3.6 If a payment to a party under these Terms or any Contract is a payment by way of reimbursement or indemnity and is calculated by reference to the GST inclusive amount of a loss, cost or expense incurred by that party, then the payment is to be reduced by the amount of any input tax credit to which that party is entitled in respect of that loss, cost or expense before any adjustment is made for GST.
4. Supply of Services
4.1 Supplier must supply the Services to Bayer at the delivery time, and in accordance with the Delivery Terms specified in the relevant Order.
4.2 Time of delivery is of the essence in each Contract.
4.3 Supplier must deliver the Services:
(a) in the manner and at the place specified in the relevant Order; and
(b) in accordance with any special instructions contained in the relevant Order.
4.4 Supplier may deliver the Services by separate instalments only with Bayer’s prior written consent.
4.5 Bayer’s acceptance of Services upon delivery does not constitute any waiver of any of Bayer’s rights under these Terms or the relevant Contract and is without prejudice to any right or remedy it may have in respect of defective Services.
4.6 Supplier must replace any Service which is not accepted by Bayer within 10 Business Days.
5. Service Warranties
5.1 Supplier warrants that:
a) in entering into and performing its obligations under this agreement it is not, and will not be, in breach of any relevant law or any obligation owed to another person;
b) there is no current, pending or threatened litigation, arbitration, investigation, inquiry or proceeding in which it is involved that will or may have an adverse effect on Supplier’s ability to provide the Services and deliverables in accordance with this agreement;
c) it has the necessary skills, experience, qualifications, resources, technology and know-how to provide the Services and deliverables in accordance with this agreement;
d) it has all necessary licences, approvals, permits and consents to enter into this agreement and to provide the Services and deliverables;
e) it will provide the Services and deliverables with all due care and skill, in a good and workmanlike manner and in accordance with all applicable laws, regulations, industry standards and codes of conduct;
f) the deliverables will comply with any specifications set out in the relevant Service Schedule or otherwise agreed by the parties, and will be of merchantable quality and fit for their intended purpose; and
g) to Supplier’s knowledge, the supply or use of the Services and deliverables will not infringe, directly or indirectly, the Intellectual Property rights of any other person.
6. Additional Obligations
6.1 Supplier must act in good faith in its dealings with Bayer.
6.2 Supplier must take out and maintain at its cost adequate insurance, including public and product liability insurance, with a reputable insurer in respect of its obligations under these Terms and any Contract with a limit of liability for each and every event of a commercially reasonable amount to cover risk arising from its manufacture or supply of the Services. Within 5 Business Days of Bayer’s request, Supplier must provide to Bayer a certificate of currency of such insurances.
6.3 Supplier grants to Bayer a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, transferable licence (including the right to sublicense) of all Intellectual Property in or relating to the Services to the extent necessary for the supply and use of the Services for any purpose.
6.4 All drawings, standards, guidelines, instructions, specifications, methods of analysis, formulae and other documents provided by Bayer to Supplier will remain the property of Bayer.
6.5 Supplier must not make press or other announcements or releases relating to these Terms or any Contract or the matters referred to therein without Bayer’s prior written approval.
6.6 Supplier must comply with all applicable laws, regulations, industry standards and codes of conduct in Australia and any other relevant jurisdiction including but not limited to the nature, method of manufacture, acquisition, testing, packaging, labelling, release for supply and delivery of the Products or Services, including the Bayer Supplier Code of Conduct, a copy of which is available at www.bayer.com.au or upon request.
6.9 Supplier has not made or provided, and will not make or provide, any payment or benefit, directly or indirectly, to government officials, customers, business partners, healthcare professionals or any other person in order to secure an improper benefit or unfair business advantage, affect private or official decision making, affect prescription behaviour or induce someone to breach professional duties or standards.
6.10 Supplier will immediately report to Bayer in writing any potential breach of the principles contained in this clause in connection with Bayer’s business and, in such cases, will cooperate fully with Bayer in reviewing the matter. In the event that Bayer believes, in good faith, that Supplier has breached any of the principles, Bayer shall have the right to terminate this Agreement.
6.11 During the term of this Agreement and for one year following the termination or expiry of the Agreement, Bayer or its duly authorised third party auditor, upon reasonable advance notice and at Bayer’s expense, shall have the right during normal business hours to examine and copy such books, records and other documents and materials, except individual salary information, with respect to the subject matter and terms of this Agreement.
7.1 Supplier releases and indemnifies Bayer, its related bodies corporate, and their respective officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with Supplier, and whether at common law, in equity, pursuant to statute or otherwise, in respect of any loss, death, injury, illness or damage (whether personal or property, and whether direct or consequential, including consequential financial loss) arising out of:
(a) a breach of Supplier’s warranties or obligations contained in these Terms or any Contract; or
(b) any negligent or wrongful act or omission by or on behalf of Supplier,
and from and against all damages, reasonable costs and expenses incurred in satisfying, defending or settling any such claim, proceeding or demand.
8.1 Either party may terminate a Contract by giving 7 days’ written notice to the other party if:
(a) the other party commits a breach (other than a trivial breach causing no material harm) of any provision of the Contract and, where the breach is capable of remedy, fails to remedy the breach within 30 days of receipt of written notice from the first party describing the breach and calling for it to be remedied; or
(b) an Insolvency Event occurs in relation to the other party.
8.2 Bayer may terminate a Contract at any time by giving 14 days’ written notice subject to payment to Supplier of reasonable compensation for any costs or expenses incurred by Supplier as at the date of the notice in connection with that Contract.
8.3 A breach of any Contract by Supplier will constitute a breach of all other Contracts by Supplier.
8.4 Upon termination or expiry of a Contract for any reason, Supplier must fulfil any outstanding Orders for Services from Bayer under that Contract existing at the date of termination or expiry unless Bayer cancels such Orders in writing prior to delivery of the relevant Services.
8.5 Clauses 5, 6.3, 6.5, 7, 8.4 and 9 survive the termination or expiry of a Contract for any reason. Any right that has accrued prior to termination or expiry will not be affected.
9. Dispute Resolution
9.1 If a dispute arises out of or related to these Terms or any Contract, no party may commence court or arbitration proceedings (other than proceedings for urgent interlocutory relief) unless it has complied with this clause 9.
9.2 A party claiming a dispute has arisen out of or related to these Terms or any Contract 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 10 Business Days, failing which either party may bring such proceedings as it sees fit.
10.1 In these Terms and any Contract, unless the contrary intention appears:
(a) a person includes a corporation, unincorporated association, partnership, joint venture or public, statutory or governmental association or agency;
(b) a statute or regulation includes an amendment, replacement or re-enactment of that statute or regulation;
(c) a reference to dollars is to Australian Dollars;
(d) the word “including” and similar expressions are not words of limitation;
(e) a reference to conduct includes any omission and any statement or undertaking, whether or not in writing; and
(f) 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.
10.2 Any notice in connection with these Terms or any Contract will be deemed to have been duly given when made in writing and delivered or sent by facsimile or post to the party to whom such notice is intended to be given, at the address or facsimile number of that party specified in the Contract or to such other address or facsimile number as may from time to time be notified in writing to the other party.
10.3 If any provision of these Terms or any Contract is invalid, illegal or unenforceable, these Terms or the Contract (as applicable) take effect (where possible) as if they did not include that provision.
10.4 Any failure by Bayer to insist upon strict performance by Supplier of any provision in these Terms or any Contract will not be taken to be a waiver of any existing or future rights of Bayer in relation to the provision.
10.5 Supplier must not assign or otherwise deal with its rights or obligations under these Terms or any Contract without the prior written consent of Bayer.
10.6 These Terms and all Contracts are governed by the laws of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
10.7 These Terms (together with the Contracts) contain the entire agreement of the parties with respect to their subject matter and may only be amended in writing.
10.8 Neither these Terms nor any Contract create a relationship of agency, partnership, joint venture or employment between the parties. Neither party has any authority to act for or incur any liability or obligation on behalf of the other party in any manner.
10.9 The parties agree that subject to the provisions of these Terms, the United Nations Convention on Contracts for the International Sale of Goods adopted at Vienna, Austria on 10 April 1980 do not apply to the supply of Services under these Terms or any Contract.