Standard Conditions of Purchase

Standard Conditions of Purchase by Mitsubishi Electric Australia Pty Limited.

  1. In these Conditions, unless the context requires otherwise:

Appendix” means the appendix at the end of the Conditions;

Anti-Bribery and Anti-Corruption Legislation” includes any statute, law, code, regulation or similar instrument in connection with the prohibition of bribery and corruption (including by virtue of the place of domicile or operations of ME-AUST and the Supplier) including but not limited to the Criminal Code Act 1995(Cth), the Crimes Act 1914(Cth), the Public Governance, Performance and Accountability Act 2013(Cth), the Corporations Act 2001(Cth), the Malaysian Anti-Corruption Commission Act 2009 (MACC Act) and the Bribery Act 2010(UK);

Conditions” means these terms and conditions;

Contract” means the contract between ME-AUST and the Supplier for the supply of Goods and/or Services described in the Order, on the terms specified in the Order and these Conditions (including the Appendix, if applicable);

Data Protection Legislation” includes any statute, law, code, regulation or similar instrument in connection with the protection of personal data (including by virtue of the place of domicile or operations of ME-AUST and the Supplier) including but not limited to the Privacy Act 1988 (Cth), Data Protection Act 1998 (UK), General Data Protection Regulation ((EU) 2016/679);

Goods” means any goods supplied or to be supplied by the Supplier to ME-AUST under the Contract including their packaging and any replacement goods;

Intellectual Property Rights” means all intellectual property rights, including the following rights:

  1. patents, copyright, rights in circuit layouts, registered and unregistered designs, trademarks, domain names, business names and any right to have confidential information kept confidential; and
  2. any application or right to apply for registration of any of the rights referred to in paragraph (a).

ME-AUST” means Mitsubishi Electric Australia Pty Ltd ABN 58 001 215 792;

"New Contract Material" means any material created, written or otherwise brought into existence by or on behalf of the Supplier in the course of providing the Goods and Services (including reports) in which subsist newly created Intellectual Property Rights.

Order” means a written order from ME-AUST to the Supplier for Goods and/or Services;

“Personal Data” means any and all data and information of any kind or nature relating to an identified or identifiable natural person and includes but is not limited to any information that when taken together is capable of identifying a natural person;

Services” means any services supplied or to be supplied by the Supplier to ME-AUST under this Contract or in connection with the Goods;

Supplier” means the person to whom the Order is addressed.

  1. By supplying or agreeing to the supply the Goods and/or Services to ME-AUST, the Supplier acknowledges that the Supplier has read and understands these Conditions and accepts and agrees to be bound by these Conditions. These Conditions will supersede any terms and conditions which have previously governed a contract for the sale of Goods and/or Services by the Supplier to ME-AUST.
  2. These Conditions, the terms on the Order and the Appendix (if applicable) are the complete and exclusive statement of the entire agreement between ME-AUST and the Supplier for the supply of all Goods and/or Services, and no modified or other terms and conditions (including those of the Supplier) will bind ME-AUST unless ME-AUST agrees to such modifications or other terms expressly in writing. These Conditions will bind each party’s executors, administrators and permitted assigns or, being a company, its successors and permitted assigns.
  3. Goods and/or Services supplied by the Supplier under this Contract will comply with the following:
    1. where a sample of the Goods has been approved by or provided by the Supplier to ME-AUST, the Goods will be of the same grade or quality as the sample;
    2. where there is a supply of Goods by description, the Goods will correspond with the description;
    3. all Australian standards applicable to the Goods and/or Services;
    4. all Goods and materials which are used in connection with the Goods, including packaging, will be safe and without risk to health when used for the purposes for which the Goods and materials were purchased by ME-AUST and will not contain any ozone depleting substance, as the term is defined in any applicable Commonwealth, State or Territory ozone protection statute or regulation; and
    5. the manufacture and overall quality of the Goods will comply in all respects with the requirements of all applicable legislation, rules, orders or other legal requirements in existence at the time of delivery of the Goods to ME-AUST.
  1. Where the Supplier is made aware by ME-AUST, expressly or impliedly, that the Goods and/or Services are for a particular purpose (including, but not limited to, the sale of the Goods by ME-AUST to a particular person), then the Goods and/or Services will be fit for that disclosed purpose.
  2. The Goods will be of acceptable quality.
  3. Any Services supplied under or in connection with this Contract will be supplied by the Supplier in accordance with the highest standard of care and skill.
  4. On the delivery of the Goods to ME-AUST, ME-AUST or its nominee may inspect and test the Goods, within a reasonable time after delivery.
  5. If it appears to ME-AUST that any Goods or Services do not correspond with the Contract or any applicable law then, in addition to other rights and remedies which ME-AUST has at law, ME-AUST may by written notice to the Supplier, require the Supplier to correct any defect or repair or replace the defective Goods or Services. Any Goods considered defective by ME-AUST may be returned by ME-AUST to the Supplier at the Supplier’s cost and risk. Nothing in this clause will limit ME-AUST’s rights and remedies available at law, including the right to rescind the Contract and to claim damages.
  6. Property and risk in the Goods will pass to ME-AUST on physical delivery of the Goods to ME-AUST under this Contract, subject to any right of ME-AUST to reject the Goods. Unless otherwise agreed and stated in writing in the Order, delivery of Goods and Services will be to the address specified in the Order. The Supplier will be responsible for arranging and paying the costs of insurance and freight with respect to the Goods and the Goods must be packed in sufficiently strong and suitable packaging to ensure that the Goods are delivered undamaged. Without limiting ME-AUST’s rights at law, if the Supplier for any reason does not comply with ME-AUST’s delivery schedule, ME-AUST may, at its option, either approve a revised delivery schedule or cancel the Order with no responsibility to pay cancellation charges or any other sum to the Supplier. Delivery will be in strict accordance with the date or dates and other information in the Order. Unless otherwise specified in the Order, the delivery schedule of ME-AUST requires delivery of Goods within thirty (30) days of receipt by the Supplier of the Order.
  7. The Supplier will perform its obligations within the time and in accordance with the other requirements specified in this Contract, and if no time is specified, within a reasonable period of time as determined by ME-AUST.
  8. Where the Supplier is unable to perform any of its obligations under this Contract, the Supplier must notify ME-AUST immediately in writing. Where ME-AUST receives any such written notification or reasonably believes that the Supplier will fail to perform any of its obligations under this Contract, ME-AUST will be entitled to terminate this Contract and cancel all or part of an Order provided that any such termination or cancellation will not affect or prejudice any right which ME-AUST may have to damages or any other remedy against the Supplier at law.
  9. All prices for Goods and Services are in the currency specified in the Order unless otherwise agreed in writing by ME-AUST and the Supplier and will be the Supplier’s list price ruling at the date of the Order. Unless mutually agreed to in writing by ME-AUST and the Supplier, the Supplier may not vary the price stated in the Order regardless of any change in costs to the Supplier after the date of the Order. All taxes and import duty required by law to be paid in relation to an Order will be paid by the Supplier. Claims for payment for the Goods and/or Services will be by the way of tax invoice which will be sent to Mitsubishi Electric Australia Pty Ltd, P.O. BOX 11, RYDALMERE, NSW 2116. Unless otherwise stated in this Contract, payment for Goods and/or Services must be made within thirty (30) days from the date of delivery of the Goods and/or completion of the Services.
  10. Where the Supplier has breached a term or condition of this Contract then in addition to any other remedies which ME-AUST may have at law:
    1. where ME-AUST has rejected the Goods or terminated the Contract and has paid money to the Supplier under the Contract, the Supplier will refund to ME-AUST that money, together with interest at an annual rate equal to two per cent (2%) above the rate notified by National Australia Bank from time to time as the Bank’s indicator lending rate, immediately upon the Supplier receiving written notification that ME-AUST rejects the Goods or terminates the Contract;
    2. ME-AUST will be entitled to recover from the Supplier any loss or damage suffered by ME-AUST whether direct, indirect or consequential as a result of this breach (including, but not limited to, the loss of profits caused by or suffered by ME-AUST as a result of ME-AUST’s failure to supply Goods to customers by reason of the Supplier’s default in supplying Goods to ME-AUST, and the Supplier hereby acknowledges that such re-supply of Goods by ME-AUST whether in the same or different state or form or otherwise is a use of the Goods within ME-AUST’s contemplation).
  1. The Supplier hereby indemnifies ME-AUST for any loss or damage suffered by ME-AUST arising from or in connection with:
    1. any breach of this Contract by, or negligence of, the Supplier;
    2. any breach of law by the Supplier;
    3. the death or injury to any person or damage to any property arising from the performance by the Supplier of its obligations under the Contract; or
    4. any payment made to any customer of ME-AUST as a result of any claim by or judgement or settlement in favour of that customer, because of or in connection with any default or defect in the Goods and/or Services supplied to ME-AUST by the Supplier under this Contract.
  2. To the maximum extent permitted by law and notwithstanding any other provision of this Contract, the Supplier is liable to ME-AUST under clause 15 in respect of both direct loss and consequential loss, where consequential loss includes but is not limited to:
    1. loss of revenue;
    2. loss of profit;
    3. any rectification costs; and
    4. any third party claims.
  3. During the Contract and for a period of 7 years thereafter, the Supplier shall at its own cost maintain insurance with an insurer having a Standard & Poor rating of no lower than “A-”for:
    1. workers compensation insurance in accordance with the applicable laws and regulations of the jurisdiction which the activities of the Supplier under this Contract are performed;
    2. insurance of its own plant, equipment and vehicles for their replacement value;
    3. an occurrence based public and product liability insurance covering liability arising out of any injury to or death of any person or any loss of or damage to any property, including any loss of use, for an amount not less than AU$10,000,000 in respect of any one occurrence;
    4. if the supply of the Goods or provision of the Services involves the provision of professional services (such as design, engineering or consulting services), professional indemnity insurance to a minimum value of AU$5,000,000 for each and every claim in respect of liability arising by reason of any act, omission or error of the Supplier in performance of the professional services; and
    5. if the performance of the Contract involves transportation of the goods, transit insurance covering loss of or damage to the Goods during transit by any means.
  4. ME-AUST may at any time request the Supplier to produce evidence as to the existence, currency and terms of the insurances the Supplier is required to effect under this Contract. If, after being requested in writing by ME-AUST to produce such evidence, the Supplier fails to promptly produce evidence satisfactory to ME-AUST (acting reasonably), ME-AUST may effect and maintain the insurance but is under no obligation to do so. ME-AUST may recover any reasonable amount so paid to effect and maintain those insurances as a debt due and owing by the Supplier to ME-AUST.
  5. ME-AUST will be entitled at all times to set off any amount owing at any time by the Supplier to ME-AUST whether arising under this Contract or otherwise against any amount payable by ME-AUST to the Supplier in connection with this Contract.
  6. Except as otherwise specified in this Contract, the price specified on the Order includes all Federal, State, local or foreign taxes, goods and services tax (“GST”) or any similar tax, stamp duties and other government charges upon manufacture, sale or supply or transportation of the Goods and/or on the provision of Services. The Supplier will give ME-AUST a tax invoice in the form acceptable under the GST legislation and any regulations or rulings made thereunder within five (5) working days of any supply of Goods or Services under this Contract.
  7. ME-AUST will be entitled to withhold the payment of the GST component for any supply made under this Contract unless it receives a valid tax invoice in accordance with clause 18.
  8. ME-AUST will be entitled to withhold PAYG at the applicable withholding rate if the Supplier fails to quote the Supplier’s Australian Business Number.
  9. Where Goods delivered by the Supplier under this Contract contain any materials, including without limitation packaging material, for which, due to statutory requirements, no reasonably practical means of disposal is available to ME-AUST, ME-AUST will be entitled to require the Supplier at the Supplier’s cost to arrange appropriate disposal or to return the materials to the Supplier at the Supplier’s cost for that purpose.
  10. Any drawings, specifications, or technical data and the information contained in such drawings, specifications or technical data (the “Documents”) given by ME-AUST to the Supplier for the purpose of supplying the Goods and/or Services are strictly private and confidential and are issued to the Supplier on the following conditions:
    1. the Documents remain the property of ME-AUST and must not be copied, reverse engineered or transferred to any other person without the prior written consent of ME-AUST which may be withheld by ME-AUST in its absolute discretion; and
    2. the Documents may only be used for the purpose of supplying Goods and/or Services to ME-AUST under this Contract and will be returned to ME-AUST within thirty (30) days of delivery of the Goods and/or completion of the Services.
  11. The Supplier will, upon written demand by ME-AUST, make available for copying by ME-AUST all documents, drawings, specifications or technical data held by the Supplier relating to this Contract.
  12. Where ME-AUST provides the Supplier with any tools, jigs, gauges, dies, patterns or other equipment (the “Equipment”), or such Equipment is obtained or manufactured by the Supplier on behalf of ME-AUST, at the cost of ME-AUST, for the purpose of supplying the Goods and/or Services to ME-AUST, such Equipment will be the property of ME-AUST at all times and will be used for no purpose other than the purpose of supplying such Goods or Services to ME-AUST, and the Supplier agrees to deliver such Equipment to ME-AUST within seven (7) days of the delivery of the Goods and/or completion of the Services.
  13. Subject to clause 28, neither party will, without the other party’s prior written approval, assign a Contract or any payment or any other right, benefit or interest thereunder.
  14. ME-AUST may, without the Supplier’s consent, assign or novate a Contract or any payment or any other right, benefit or interest thereunder to any entity which is owned or controlled by ME-AUST or a related body corporate (as that term is defined in the Corporations Act 2001 (Cth)) of ME-AUST.
  15. If there is a material change in the Supplier’s shareholding or beneficial ownership which ME-AUST, in its absolute discretion, considers may affect the Supplier’s control or management or the supply of the Goods or Services, ME-AUST may terminate any Contract by written notice to the Supplier. In the event of termination, the rights and liabilities of the parties shall be in accordance with the law and the terms of this Contract, including clause 14.
  16. These Conditions are in addition to any rights which ME-AUST may have under the laws of the Commonwealth or the State of New South Wales, Australia but where any condition of these Conditions is held to be illegal, void or unenforceable, this Contract will be read as if such term or condition had never been included and was severable from this Contract leaving the remainder of this Contract legal, valid and enforceable.
  17. The Supplier hereby acknowledges that no term or condition in these Conditions or implied by law has been or will be excluded from this Contract.
  18. This Contract will be governed by the laws of the State of New South Wales, Australia and the Supplier and ME-AUST will submit to the non-exclusive jurisdiction of the Courts of that State.
  19. No employee of ME-AUST is authorised to bind ME-AUST unless ME-AUST has given the Supplier express written notice to that effect.
  20. ME-AUST’s failure to enforce at any time or for any period of time, any term of any Contract incorporating these Conditions, will not constitute a waiver of such term and will in no way affect ME-AUST’s right later to enforce the Contract.
  21. The Supplier will comply with all laws and regulations of the Commonwealth and States and Territories of Australia and will provide all necessary information to, and obtain all necessary permits, approvals, licences, consents, authorisations and exemptions from, any government authority or other appropriate body, in respect of the Supplier’s marketing, distribution or supply of Goods acquired by ME-AUST under these Terms.
  22. The Supplier must maintain safe working conditions at all times, and comply with:
    1. the relevant occupational health and safety and environmental laws and regulations; and
    2. any ME-AUST occupational health and safety and environmental policies or occupational health and safety environmental policies applicable at ME-AUST’s or ME-AUST’s customer’s sites which the Supplier attends, provided that such policies are reasonably brought to the Supplier’s attention.
  23. The Supplier must retain all records in relation to this Contract for a period of 7 years from the end of the Supplier’s obligations under this Contract.
  24. To the extent permitted by law, Part 4 of the Civil Liability Act 2002 (NSW) (and any equivalent statutory provision in any other state or territory) is excluded in relation to all and any rights, obligations or liabilities of any party under this Contract whether these rights, obligations or liabilities are sought to be enforced in contract, tort or otherwise.
  25. The Supplier hereby:
    1. assigns, and agrees to procure the assignment by any relevant third parties, of all right, title and interest in all Intellectual Property Rights in the New Contract Material to ME-AUST upon the creation of such Intellectual Property Rights; and
    2. grants to ME-AUST a perpetual, irrevocable, non-exclusive, royalty-free, transferable licence (with the right to sub-license to ME-AUST’s customer and the end-user) to use all Intellectual Property Rights (whether owned by the Supplier or not) associated with the Goods and or Services for the installation, use, support, repair and maintenance of the Goods and or Services.
  26. The Supplier warrants that:
    1. it is entitled to grant to ME-AUST the rights granted in clause 39;
    2. the supply of the Goods by the Supplier to ME-AUST, the use of the Goods in accordance with or as contemplated by these Conditions by ME-AUST, and the assignment and grant of licence by the Supplier pursuant to clause 39 does not infringe the Intellectual Property Rights, moral rights or other protected rights of any third party; and
    3. the Goods are not subject to any Intellectual Property Rights, moral rights or other protected rights of any third party that in any way restrict the rights of ME-AUST or its customers to use or sell the same.
  27. The Supplier will indemnify ME-AUST against all costs, losses, and damages arising out of or in connection with any breach by the Supplier of clauses 39 and 40.
  28. A party may only use confidential information of another party provided under this Contract for the purposes of this Contract, and must keep the existence and the terms of this Contract and any confidential information of another party confidential except where:
    1. the information is public knowledge (but not because of a breach of these Conditions) or the party has independently created the information;
    2. disclosure is required by law or a regulatory body (including a relevant stock exchange); or
    3. disclosure is made to a person who must know for the purposes of this Contract on the basis that the person keeps the information confidential.
  29. The Parties will comply with their obligations under Data Protection Legislation in respect of Personal Data.
  30. The Supplier must:
    1. only collect, use, disclose, store, transfer or otherwise handle Personal Data in connection with this Contract for the purpose of performing its obligations under the Contract and in accordance with ME-AUST’s lawful instructions;
    2. take appropriate technical and organisational measures against unauthorised or unlawful processing of, and accidental loss or destruction of, or damage to, Personal Data, having regard to the state of technological development and the cost of implementing any measures, to ensure a level of security appropriate to the harm that might result from such unauthorised or unlawful processing, accidental loss, destruction or damage and the nature of the Personal Data;
    3. take reasonable steps to ensure the reliability of its employees who have access to the Personal Data; and
    4. notify ME-AUST within 24 hours of becoming aware of any unauthorised or unlawful processing of, and accidental loss or destruction of, or damage to, Personal Data in connection with the Contract.
  31. The Supplier will indemnify ME-AUST against all costs, losses, and damages arising out of or in connection with any breach by the Supplier of clauses 43 and 44.
  32. Each party represents and warrants that:
    1. it has not and will not breach any Anti-Bribery and Anti-Corruption Legislation in connection with the Contract;
    2. if it becomes aware of any breach or suspected breach of Anti-Bribery and Anti-Corruption Legislation in connection with the Contract, it must immediately notify the other party in writing and provide reasonable details of such breach or suspected breach and provide reasonable access to information, books and records relevant to such breach.
  33. If a party (“Notifying Party) reasonably believes the other party (“Defaulting Party”) has breached any Anti-Bribery and Anti-Corruption Legislation in connection with the Contract, the Notifying Party must give the Defaulting Party written notice of such. If the Defaulting Party, within 30 days of that written notice, fails to show there is no reasonable basis to conclude that a breach has occurred, the Notifying Party may terminate the Contract with immediate effect by giving written notice to the Defaulting Party.
  34. The Defaulting Party will indemnify the Notifying Party against all costs, losses, and damages arising out of or in connection with any breach by the Defaulting Party of clause 46.
  35. The Supplier must not:
    1. use any goods, technologies and/or software supplied by ME-AUST in relation to development, production, use or storage of weapons of mass destruction; or
    2. transfer any such items to a third party should the Supplier know or suspect that those items could be used for such an application.
  36. Without limitation to clause 49, the Supplier must not:
    1. use any goods, technologies and/or software supplied by ME-AUST for military applications; or
    2. sell any such items to any third party should the Supplier know or suspect that those items could be used for such an application,
without conducting prior consultation with ME-AUST.

Appendix to Standard Conditions of Purchase for Small Business Contracts

This Appendix to the Standard Conditions of Purchase (the “Conditions”) forms part of the Contract. All capitalised terms used in this Appendix have the same meanings as in the Conditions.

This Appendix will apply where the Contract is a “small business contract” for the purposes of the Australian Consumer Law, being at the time ME-AUST last updated these Conditions an agreement where:

  1. at least one party to the Contract is a business that employs fewer than 20 persons; and
  2. either of the following applies:
    1. the upfront price payable under the Contract does not exceed $300,000; or
    2. the Contract has a duration of more than 12 months and the upfront price payable under the Contract does not exceed $1,000,000,

(“Small Business Contract”).

However, if the relevant parts of the definition of “Small Business Contract” under the Australian Consumer Law are amended at any time, this definition is also amended accordingly.

If this Appendix applies to the Contract, the terms and conditions of the Contract are amended as follows:

  1. Replace clause 8 with the following:

“On delivery of the Goods to ME-AUST, ME-AUST or its nominee may inspect and test the Goods within a reasonable time after delivery to ensure they meet the requirements set out within the Contract.”

  1. Replace clause 9 with the following:

“If the Goods or Services do not comply with the Contract or any applicable law, then in addition to other rights or remedies which ME-AUST has at law, ME-AUST may by written notice to the Supplier:

  1. require the Supplier to correct any defect; or
  2. repair or replace affected Goods or Services; or
  3. return affected Goods to the Supplier at the Supplier’s cost and risk.
Nothing in this clause will limit ME-AUST’s rights or remedies available at law, including the right to rescind the Contract and to claim damages.”
  1. Replace clause 10 with the following:

“Property and risk in the Goods will pass to ME-AUST on physical delivery of the Goods to ME-AUST under this Contract, subject to any right of ME-AUST to reject the Goods. Unless otherwise agreed and stated in writing in the Order, delivery of Goods and Services will be to the address specified in the Order. The Supplier will be responsible for arranging and paying the costs of insurance and freight with respect to the Goods and the Goods must be packed in sufficiently strong and suitable packaging to ensure that the Goods are delivered undamaged. Without limiting ME-AUST’s rights at law, if the Supplier for any reason does not comply with the delivery timetable as determined in accordance with this clause, ME-AUST may, at its option, either approve a revised delivery schedule or cancel the Order with no responsibility to pay cancellation charges or any other sum to the Supplier except if required to do so by law. Delivery will be in strict accordance with the date or dates and other information in the Order. Unless otherwise specified in the Order, the delivery schedule of ME-AUST requires delivery of Goods within thirty (30) days of receipt by the Supplier of the Order.”

  1. Replace clause 11 with the following:

“The Supplier will perform its obligations within the time and in accordance with the other requirements specified in this Contract, and if no time is specified, within a reasonable period of time.”

  1. Delete clause 14(b).
  2. Insert the following clause as a new clause 14A:

    “ME-AUST shall not be liable for any loss, cost or damage arising by reason of rejection of the Goods or termination of the Contract pursuant to clause 9, but rejection of the Goods or termination of the Contract shall be without prejudice to the rights of either party accruing prior to the rejection or termination.

  3. In clause 15 delete the words “breach of this contract by, or”.
  4. Replace clause 16 with the following:

“Neither party will be liable for any loss, cost, damage or expense to the extent that it is for indirect, special, economic or consequential loss, where consequential loss means any loss, cost, damage or expense beyond the normal measure and beyond that which every plaintiff in a like situation would suffer.”

  1. In clause 29 delete ”whether” and “or otherwise”.
  2. In clause 27, replace the words “in its absolute discretion” with the words “acting reasonably”.
  3. In clause 29, replace the word “ME-AUST” with the words “the parties’’”.
  4. Replace clause 33 with the following clause:

“Either party’s failure to enforce at any time or for any period of time, any term of any Contract incorporating these Conditions, will not constitute a waiver of such term and will in no way affect either party’s rights later to enforce the Contract.”