1. APPLICATION OF TERMS

1.1. The following terms and conditions (Terms) apply to each contract (Contract) arising for the provision of the goods or services specified in the Purchase Order to which these Terms are attached (Purchase Order) for the provision of goods or services to Erizon Pty Ltd ACN 168 000 191 (Erizon) by the supplier to whom the Purchase Order is addressed (Supplier).

1.2. The Supplier must advise Erizon if it accepts a Purchase Order within 5 business days of the receipt of the Purchase Order.

1.3. The Supplier is deemed to have accepted these Terms unless the Supplier gives written notice to Erizon within 5 business days of receipt of the Purchase Order that it does not accept or wishes to vary any term or condition contained in these Terms.

1.4. If the Supplier does not wish to accept any term or condition of these Terms, Erizon and the Supplier must agree in writing to any variation of these Terms before a Contract will arise.

1.5. These Terms and the Contract incorporate the rules of INCOTERMS 2020 of the International Chamber of Commerce for Delivered at Place (DAP) to the Delivery Point unless otherwise indicated on a Purchase Order.

1.6. If the Supplier’s place of business is not in Australia, these Terms and the Contract incorporate the provisions of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention) except to the extent of any conflict or inconsistency with the Terms unless excluded by the Purchase Order or by agreement in writing between Erizon and the Supplier.

1.7. The terms and conditions of the Contract will take effect in the following order of priority unless otherwise specified in the Purchase Order:

1.7.1. First, any terms or conditions specifically agreed in writing by Erizon and the Supplier;

1.7.2. Second, these Terms;

1.7.3.  Third, INCOTERMS rules for Delivered at Place (DAP) or as otherwise specified on a Purchase Order;

1.7.4. Fourth, if the Supplier’s place of business is not in Australia, the Vienna Convention.

1.8. These Terms apply to the complete exclusion of any other document or agreement between the Supplier and Erizon, including without limitation the Supplier’s quote, tender, order acceptance or standard conditions of supply (whether provided before or after the date of the Purchase Order), unless specifically agreed in writing by Erizon and the Supplier.

2. SUPPLY OF GOODS AND PRICE

2.1. The Supplier will supply the goods specified in the Purchase Order (Goods) or the services specified in the Purchase Order (Services) or both Goods and Services for the price specified in the Purchase Order or otherwise agreed in writing by Erizon and the Supplier (Price) which shall include all delivery costs, packaging, duties and taxes (including GST, if applicable).

2.2. Delivery of Goods shall be made by the Supplier to the place specified in the Purchase Order (Delivery Point).

2.3. Performance of Services shall be undertaken by the Supplier at the place or places specified in the Purchase Order.

2.4. All Goods must be suitably packaged and transported in a manner that will prevent damage.

2.5. Erizon shall not be responsible for payment of any costs or fees in excess of the Price unless the prior approval and agreement of Erizon in writing is obtained by the Supplier.

3. RISK & TITLE

3.1. Unencumbered title and risk of loss or damage to any Goods shall pass from the Supplier to Erizon upon acceptance of the Goods by Erizon in accordance with clause 3.3.

3.2. Signed delivery documents will only mean confirmation of the number of packages or cartons delivered and will not constitute acceptance by Erizon of any Goods.

3.3. Erizon must inspect any Goods supplied under the Purchase Order within a reasonable time after delivery to the Delivery Point and give notice to the Supplier whether or not Erizon accepts or rejects the Goods for any reason. If Erizon does not provide such notice within 5 business days after delivery to the Delivery Point, Erizon will be deemed to have accepted the Goods (but without limiting liability of the Supplier for any defect or want of quality or description that is later apparent).

3.4. If the Goods or any portion of the Goods are rejected by Erizon (Rejected Goods):

3.4.1. Erizon shall not be liable to the Supplier for the Price for the Rejected Goods;

3.4.2. any amount that has been paid by Erizon to the Supplier for Rejected Goods shall, at Erizon’s option, be refunded to, or credited to the account of, Erizon by the Supplier;

3.4.3. Erizon shall return the Rejected Goods to the Supplier unmarked and in original packaging and, provided that clause 8.1 does not apply, shall pay the cost of return freight.

4. ALTERATION OF ORDER

4.1. The Supplier must not vary the specification, quantity, quality or description of the Goods without the written consent of Erizon and must not supply or substitute equivalent Goods in place of the Goods without the written consent of Erizon.

4.2. The Supplier must not vary the scope of works comprised in the Services without the written consent of Erizon.

4.3. By notice in writing to the Supplier of no less than 24 hours, Erizon may at any time prior to the proposed date for delivery of the Goods:

4.3.1. reduce the quantity of the Goods to be delivered, provided that Erizon bears the costs of return freight of any Goods delivered in accordance with the Purchase Order which exceed the reduced quantity; or

4.3.2. extend the time for delivery of the Goods.

The Price will be adjusted by the amount agreed by the parties or failing agreement, a reasonable price determined by Erizon, in respect of the variation having regard to the unit price, or pro-rata price, for the varied Goods based on the Price for the full quantity of the Goods, and any reasonable costs of the Supplier substantiated by evidence to the reasonable satisfaction of Erizon.

During the 24 hour notice period, the Supplier may terminate the contract by notice in writing to Erizon before variations are effective.

4.4. By notice in writing to the Supplier of no less than 24 hours, Erizon may at any time prior to the proposed time for performance of the Services change the scope or extent of the Services required to be performed and the Price will be adjusted by the amount agreed by the parties or failing agreement, a reasonable price determined by Erizon, in respect of the variation having regard to the hourly rate, or pro-rata price, for the altered Services based on the Price for the original Services, and any reasonable costs of the Supplier substantiated by evidence to the reasonable satisfaction of Erizon.

During the 24 hour notice period, the Supplier may terminate the contract by notice in writing to Erizon before variations are effective.

5. PAYMENT AND INVOICING

5.1. The Price is inclusive of goods and services tax or any similar tax applicable in Australia (GST).

5.2. The Supplier shall issue an invoice to Erizon for the Price for Goods or Services (or both Goods and Services) in a Purchase Order by sending it to accounts@erizon.com.au.  If the Supplier is registered for GST in Australia the invoice issued shall be a valid tax invoice.

5.3. Where any supply by the Supplier to Erizon is subject to GST or where the Supplier has an adjustment for a supply by the Supplier to Erizon which varies the amount of GST payable in relation to the supply the Supplier is responsible for submission of GST to the Australian Taxation Office and shall have no further recourse to Erizon for any amount of GST.

5.4. Unless otherwise agreed between Erizon and the Supplier, Erizon shall pay to the Supplier the Price for Goods or Services (or both Goods and Services) in a Purchase Order within 45 days after the end of the month in which the invoice was received by Erizon provided that:

5.4.1. (if Goods are supplied) the Goods have been accepted by Erizon in accordance with clause 3.3 at that time; and

5.4.2. there is no dispute in relation to the quantity of Goods or quality of the Services showing on the invoice or the amount of the invoice.

5.5. The Supplier must quote the Purchase Order number on all invoices, delivery slips and correspondence relating to the Purchase Order.

6.  WARRANTY AND INDEMNITY

6.1. Without limiting any express warranty, guarantee or assurance for any Goods given by the Supplier or implied by law, the Supplier warrants that the Goods:

6.1.1. are reasonably fit for the purpose for which the Supplier has represented to Erizon they are fit;

6.1.2. are reasonably fit for the purpose that Erizon has made known to the Supplier for which the goods are being acquired;

6.1.3. are of merchantable quality when delivered to the Delivery Point;

6.1.4. accord with the description given by the Supplier to Erizon;

6.1.5. will comply with any guarantee or warranty that Erizon is required to comply with at law and which may not be excluded or modified;

6.1.6. will comply with any express warranty given by the Supplier in relation to the Goods.

6.2. Without limiting any express warranty, guarantee or assurance for any Services given by the Supplier or implied by law, the Supplier warrants that the Services will:

6.2.1. be provided by competent persons in a professional and workmanlike manner consistently with industry standards;

6.2.2. be provided with acceptable care and skill or technical knowledge and taking all necessary steps to avoid loss and damage;

6.2.3. deliver works or products which are fit for the purpose or give the results that Erizon and the Supplier have agreed to;

6.2.4. be delivered within agreed time frames

6.2.5. comply with any guarantee or warranty that Erizon is required to comply with at law and which may not be excluded or modified;

6.2.6. comply with any express warranty given by the Supplier in relation to the Services.

6.3. The Supplier indemnifies and keeps indemnified Erizon for any loss, damage, expense, claim or liability suffered or incurred by Erizon as a result of the breach by the Supplier of the Contract or any warranty or any provision of these Terms or the negligence of the Supplier.

7. UNACCEPTABLE SERVICES

7.1. If Erizon considers that any Services have not been provided or performed in accordance with the warranties in clause 6.2 or otherwise do not conform with Erizon’s expectations or requirements Erizon (Unacceptable Services) shall give notice to the Supplier and the Supplier shall, at Erizon’s option:

7.1.1. re-perform the Unacceptable Services;

7.1.2. repair or replace any works or product resulting from the performance of the Unacceptable Services; or

7.1.3. refund to Erizon any portion of the Price which has been paid by Erizon for the Unacceptable Services or, if the Price (or any portion of it) for the Unacceptable Services has not been paid, release Erizon from its obligation to pay this Price (or any outstanding portion of this Price).

7.2. Erizon’s rights to claim against the Supplier for any Unacceptable Services is not limited or precluded by acceptance of the Services by Erizon or by payment of any money by Erizon to the Supplier.

8. DEFECTIVE GOODS

8.1. If Erizon identifies that any one or more of the delivered Goods:

8.1.1. does not conform with the specifications for the Goods;

8.1.2. does not conform with user expectations in relation to the Goods;

8.1.3. is unfit for the intended use of the Goods;

8.1.4. is dangerous or harmful due to defective design, assembly, or manufacture

(Defective Goods) then the Supplier shall, at the option of and within the time specified by Erizon, acting reasonably, replace the Defective Goods or supply equivalent Goods or reimburse Erizon for the Price of the Defective Goods and any associated freight costs of Erizon.  Erizon will, if requested by the Supplier and at the Supplier’s expense, return any Defective Goods to the Supplier.

8.2. In addition to Erizon’s rights in clause 8.1, where Defective Goods are identified, Erizon may require the Supplier to replace, supply equivalent, or reimburse the Price of, all of the Goods specified in the Purchase Order relating to the Defective Goods.

8.3. Erizon’s rights to claim against the Supplier for Defective Goods is not limited or precluded by acceptance of the Goods by Erizon or by payment of any money by Erizon to the Supplier.

9. INSURANCE

9.1. The Supplier shall procure and maintain insurance coverage, at its sole cost and expense, with limits and conditions not less than those specified below. 

9.1.1. Public & Product Liability Insurance, covering the Supplier, any contractors or subcontractors employed by the Supplier or any other interested parties for liability for loss of or damage to property and death of or injury to any person for an amount of not less than AU$20 million;

9.1.2. (if Goods are supplied) Product Recall Insurance covering malicious product tampering and accidental product contamination causing loss of or damage to property and death of or injury to any person for an amount of not less than AU$2 million per occasion.

10. CONFIDENTIALITY

10.1.   Erizon and the Supplier will treat these Terms, the terms of any agreement or arrangement between them and any information obtained from or about each other as confidential and will take reasonable precautions to ensure that such confidential information is kept secret and confidential and not disclosed to others except:

10.1.1. with the consent of the other party;

10.1.2. to their professional advisers or employees on a need to know basis for the purposes of or in relation to matters arising from these Terms or the supply of Goods to Erizon; or

10.1.3. if required by law to be disclosed;

10.1.4. to the extent that it is in or becomes part of the public domain (other than through a breach of these Terms or an obligation of confidence owed to Erizon or the Supplier).

11. TERMINATION

11.1. Erizon may terminate the Contract without cause at any time, including before delivery of the Goods to the Delivery Point or before completion of the Services, by giving no less than 24 hours written notice to the Supplier during which the Supplier may have the opportunity to remedy specific concerns.

11.2. In the event of a termination of the Contract:

11.2.1. subject to clause 8.1, Erizon will remain liable to the Supplier for the Price for any Goods accepted in accordance with clause 3.3;

11.2.2. subject to clause 7.1, Erizon will remain liable to the Supplier for the Price for any part of the Services that have been performed as agreed by the parties or failing agreement, a reasonable price determined by Erizon, having regard to the unit price, or pro-rata price, for the Services, and any reasonable costs of the Supplier substantiated by evidence to the reasonable satisfaction of Erizon.

11.2.3. Erizon shall not be liable to the Supplier for the Price for Goods (Undelivered Goods) which have not been delivered to the Delivery Point at the time of termination;

11.2.4. Erizon shall not be liable to the Supplier for the Price for Services (Unperformed Services) which have not been performed at the time of termination as agreed by the parties or failing agreement, a reasonable price determined by Erizon, having regard to the unit price, or pro-rata price, for the Services, and any reasonable costs of the Supplier substantiated by evidence to the reasonable satisfaction of Erizon;

11.2.5. the Price or any amount that has been paid by Erizon to the Supplier for Undelivered Goods or Unperformed Services shall, at Erizon’s option, be refunded to or credited to the account of Erizon by the Supplier;

11.2.6. if Undelivered Goods have been despatched by the Supplier for delivery to Erizon, these Goods will be returned by Erizon to the Supplier on receipt by Erizon and Erizon will pay the costs of return freight.

12. FORCE MAJEURE

12.1. If any act, event or circumstance (other than lack of funds) which is beyond the reasonable control of the party concerned, including, without limitation, strike, act of God, war, explosion, civil commotion, national emergency, governmental or quasi-governmental orders and directives, pandemic, epidemic, disease, radioactive contamination and direction or embargo by legislation (Force Majeure), means that a party becomes unable, wholly or in part, to carry out any duty or obligation under these Terms or the Contract that party:

12.1.1. shall give the other party prompt written notice of the Force Majeure, with all material particulars of the Force Majeure and, insofar as is known, the probable extent to which it will be unable to perform, or be delayed in performing, such duty or obligation;

12.1.2. shall not be required to carry out such duty or obligation so far as it is affected by the Force Majeure during, but no longer than, the continuance of the Force Majeure; and

12.1.3. shall use its best endeavours to overcome or remove the Force Majeure as quickly as possible.

12.2. In the event that the Force Majeure prevents or is expected to prevent a party from carrying out a duty or obligation under these Terms or the Contract for a period of 1 month, the party to whom that duty or obligation is owed shall have the right to immediately terminate the Contract.

12.3. The requirements in this clause 13 shall not require the affected party to settle any strike or other labour dispute on terms contrary to its wishes or to contest the validity or enforceability of any law, regulation or order, or determination of any governmental or statutory authority, by way of legal proceedings.

13. GENERAL AND LAW

13.1. The whole or any part of any clause of these Terms that is illegal or unenforceable will be severed from these Terms and will not affect the continued operation of the remaining provisions of these Terms.

13.2. The Contract and these Terms are governed by the law of South Australia.  The parties submit to the exclusive jurisdiction of its courts and courts of appeal from them.  The parties will not object to the exercise of jurisdiction by those courts on any basis.

13.3. A reference to a business day means a day that is not a Saturday or a Sunday or a public holiday in South Australia.