1. Application of Terms

1.1. These Terms apply to all our purchases of Products and Services from you, unless we have both expressly agreed that other terms will apply.  These Terms supersede and exclude all prior or subsequent discussions, representations, terms and/or conditions of trade, all written or oral agreements and any other terms and conditions which you may seek to extend to the supply of any Products or Services.  Your acceptance of an order from us for any Products or Services constitutes acceptance of these Terms.

1.2. To the extent applicable law allows, we may change these Terms any time by telling you or updating these Terms. The changed Terms apply to all orders for Products and Services we place after these Terms change. If you can’t or it is unreasonable for you to comply with any changed Terms, you may terminate these Terms within 30 days from the date these Terms changed. Your termination does not affect any orders for Products or Services we placed prior to changing these Terms.

1.3. Our Personnel have no authority to make any representations, statements, warranties, conditions, or agreements that conflict with these Terms. Any such behaviour does not bind us or form a part of the agreement between you and us relating to the Products and Services.

2. Supply of Products and Services

2.1. You will supply the Products or Services as per the terms set out in the relevant Purchase Order and these Terms.  If there is any inconsistency between these Terms and a Purchase Order, these Terms prevail.

2.2. If the Purchase Order does not specify a time for delivery of the Products or Services, you must deliver them within a reasonable time.  If delivery is likely to be delayed for any reason, you must follow the procedure set out in clause 6.

2.3. If the Purchase Order specifies certain Personnel to perform the Services, you will ensure that those Personnel do so.  You will not remove or replace those Personnel without our prior consent.

2.4. Any forecast volumes set out in any Purchase Order are indicative only and are not a firm commitment.  We will issue individual Purchase Orders for the actual volume of Products and Services we need.

2.5. Nothing in these Terms oblige us to procure any Products or Services from you, and our arrangements with you are non-exclusive.

3. Quality and Acceptance

3.1. You will ensure the Services:

(a) are performed promptly, with due diligence, care and skill, by appropriately trained, experienced and supervised Personnel, and to the best industry standards;

(b) and the Products conform with the requirements of the Purchase Order and these Terms and with all other descriptions and specifications agreed and approved by us (if any);

(c) and the Products, are fit for their intended purpose.

3.2. You will ensure the Products:

(a) (unless otherwise agreed in the Purchase Order) are new and unused on delivery, and where a shelf life applies, at least 95% of such life remains on delivery; and

(b) are of merchantable quality, fit for their intended purpose, free from any fault or defect (including any latent defect) in design, materials, and workmanship, and not emit any contaminant or hazardous substance.

3.3. The receipt or signature of a delivery order by one of our Personnel is not acceptance of either the quality or quantity of any Product.

3.4. We may inspect and test at any time (whether before or after delivery) the supply of the Products or Services.  However, any inspection does not relieve you from any liability for the Products or Services, and in no way implies we accept the Products or Services.

3.5. We may decline any Product or Service that does not conform to the requirements of the relevant Purchase Order and these Terms.  We will tell you if that occurs.  You must then promptly fix the problems and resubmit to us for acceptance as soon as possible.  If it still fails, then we may terminate the purchase of the relevant Product or Service.

4. Title and risk

4.1 Risk in a Product passes to us on delivery and you will appropriately insure all Products until they are delivered to us. 

4.2 Title in a Product passes to us on the earlier of delivery and our payment for that Product.  You warrant that you supply the Product in the ordinary course of your business and that no other person has any encumbrance or security interest in the Product.

4.3 If a Purchase Order permits you to have a security interest in any Products until payment, then you agree that, despite the terms of that security interest:

(a) you warrant that the Products are, at the time title passes to us: (i) not the subject of any registration under the PPSA; and (ii) free from any security interest as defined in the PPSA; and

(b) without limiting the above, you will not have any right to enter our or our customers’ premises at any time to take possession of any Products, whether or not any Products are at ‘at risk’ (as that term is defined in the PPSA).  

5. Price, invoicing and payment

5.1 Unless otherwise agreed or set out in the Purchase Order, the price in the Purchase Order is:

(a)  in Australian currency;

(b) exclusive of GST, but inclusive of all other duties, taxes, or charges; and

(c) inclusive of freight, insurance, and all costs of packaging, testing and inspection.

5.2 Unless the Purchase Order states that progress payments apply, you will invoice us on delivery of the Products and/or completion of the Services.  Subject to clause 5.3, we will pay the invoice 30 days after receiving a valid Tax Invoice, containing sufficient detail to check its accuracy.

5.3 If we dispute any Tax Invoice (in whole or in part), we will promptly notify you, and pay the undisputed part pending the resolution of the dispute.

5.4 No interest is payable to you on any amount withheld under clause 5.3 or on any other amount not paid when due.

6. Delay

6.1 As soon as you become aware that an obligation to us may not be met by the required date, you must promptly tell us:

(a) the cause and effect of the delay;

(b) the steps you are taking to minimise the delay; and

(c) any extension of time you need to meet the affected obligations.

6.2  If you fail to comply with clause 6.1, you must continue to perform your obligations according to any required date, and we reserve all our rights in respect of your failure.

6.3 After being notified of a delay, we will both meet and discuss the impact.  If the delay is not your fault or your Personnel’s fault, we may extend the time for meeting any affected obligation by a period we think reasonable.

6.4 If the delay is your fault (or your Personnel’s fault), you must:

(a) commit all additional resources needed to meet the required timeframe at your cost; and

(b) where we request, promptly compensate us for unavoidable, reasonable costs incurred due to the delay.

7. Confidential information and Personal information

7.1 You must treat all Confidential Information as confidential, use all reasonable efforts to keep it secure at all times and only use it to the extent required for the proper performance of your obligations under these Terms.

7.2 You may only disclose Confidential Information to your Personnel who need to know the information to provide the Products or Services (Representatives), but you must first make each Representative aware of the confidential nature of the information and (if we require) give us a written undertaking by each Representative to keep the Confidential Information confidential.

7.3 On completion or termination of these Terms or if we ask earlier, you must destroy (and certify this to us on request) our Confidential Information, and all copies of it.

7.4 Where any information is Personal Information obtained under or in connection with these Terms, you must comply with our privacy policies and all applicable privacy laws.

7.5 Without limiting this clause 7, you must not make any public statement about the subject matter of these Terms or about us without our prior written consent.

7.6 Without limiting this clause 7, for Personal Information, you must:

(a) not collect, hold, use or disclose any Personal Information, other than to perform your obligations under these Terms;

(b) comply with all reasonable directions and co-operate with us regarding the management, safeguarding and security of the Personal Information and the resolution of any complaint; and

(c) as soon as you know or suspect that a breach of confidentiality has occurred, or may occur, immediately notify us of the occurrence and details, comply with our reasonable directions, and give us all reasonable assistance we need.

8. Intellectual Property

8.1 We own all Intellectual Property in the Deliverables, and the Deliverables themselves.  This clause irrevocably assigns to us, all Intellectual Property created by you and your Personnel on creation at no extra cost, and you must do what we ask to perfect this assignment. 

8.2 You (or your suppliers) own all pre-existing rights in relation to existing Intellectual Property owned by you (or your suppliers) used in the Services or the Deliverables, but you grant us a world-wide, perpetual, irrevocable, royalty-free and unrestricted licence to use any of that Intellectual Property if it is incorporated in any Deliverables. 

8.3 You warrant that the Services and our use of the Deliverables will not infringe the Intellectual Property (or other) rights of any other person.

9. Compliance

9.1 You must comply with all our health & safety, security, site, and other procedures and policies (including office conduct), as amended from time to time, when on our premises.  We will notify you of relevant changes to them.  We may immediately withdraw access and terminate these Terms where you breach this clause 9.1 and we, acting reasonably, regard the breach as sufficiently serious.

9.2 You must comply with all applicable laws (including laws relating to the protection of Personal Information and privacy) when performing the Services and creating the Deliverables, or providing the Products, and ensure:

(a) the Services, Deliverables, Products and our use of them comply with all applicable laws; and

(b) you do not put us in breach of any laws.

9.3 You must in connection with these Terms: (a) comply with Human Rights; (b) use reasonable efforts to procure your Personnel and supply chain participants comply with Human Rights; (c) include in your contracts with supply chain participants, provisions that are substantially similar to those set out in this clause; and (d) promptly provide us with such access, information and documentation we reasonably request so we can: (i) undertake appropriate due diligence on your supply chain; and/or (ii) report to any relevant authority in relation to Human Rights breaches or compliance.

9.4 You warrant and represent to us that: (a) no investigation, proceeding or claim has been initiated or is threatened or pending against you, by any governmental, administrative, judicial or regulatory body, authority or organisation, in relation to Human Rights impacts or breaches; (b) you are not aware of any fact, situation or circumstance which might give rise to such an investigation, proceeding or claim or which could constitute a breach of Human Rights; and (c) you have not at any time been found to have breached the Human Rights of any individual in your employment or supply chain.

10. Records and audit

10.1 You must keep accurate and up to date records, and must ensure any subcontractors do the same, as needed to show compliance with these Terms.

10.2 You must allow us to access your records to:

(a) verify the accuracy of any Tax Invoice issued under these Terms; and

(b) audit your compliance with these Terms.

The rights under this clause continue for 12 months after completion or termination of these Terms.

11. Indemnity

11.1 As the supplier of Services and Products to us, you indemnify us against any loss, liability, damage, cost or expense (including legal costs and expenses on a full indemnity basis) suffered or incurred in connection with:

(a) personal injury, illness, or death;

(b) loss of or damage to any property; or

(c) any claim alleging that the supply of the Services or our use of the Deliverables as contemplated by these Terms, infringes the Intellectual Property rights, or other rights of any other person, except that this indemnity is reduced proportionally to the extent our negligent act or omission caused or contributed to the loss, liability, damage, cost, or expense.

12. Insurance

12.1 Unless we agree otherwise, you must, at your cost, maintain a minimum level of public liability, professional indemnity, and product liability insurance cover (as we require) of $2,000,000 per claim made (or such higher amount as we reasonably require), in each case with a reputable insurer for the period you are providing the Products and Services and for at least 12 months after these Terms end.

12.2 If we request, you must give us reasonable evidence you hold the required insurances.

13. Liability

13.1 To the extent applicable law allows, both or our sole remedies for any breach of these Terms or loss or damage arising from the subject matter of these Terms are expressly set out in these Terms.

13.2 In no circumstances will either of us be liable to the other for any consequential or indirect loss or damage, or loss of profits, business, goodwill, or opportunity arising in connection with these Terms, whether by way of damages or indemnity or for breach of contract, tort (including negligence) or otherwise.

13.3 Subject to clause 13.2, each of our maximum aggregate liability to the other (in contract, tort or otherwise) is limited to the greater of 3 times the value of the Products or Services provided under these Terms in any 12 month period or $500,000.  The limitations of liability in this clause do not apply to any breach by either party of clauses 7 to 12.

13.4 Neither party is liable for any failure or delay in complying with any obligations due to a cause beyond that party’s reasonable control.

14. Termination

14.1 We may terminate these Terms by notice to you, without cause, at any time on 90 days’ prior written notice.  

14.2 Either party may terminate these Terms:

(a) if the other party is in material breach of these Terms, the breach is capable of remedy and, within 30 days of receiving written notice of the breach, the other party has not remedied the breach; 

(b) immediately on written notice if the other party is in material breach of these Terms and the breach cannot be remedied; or

(c) immediately by giving written notice if the other party experiences, or looks likely in the reasonably opinion of the party to experience, an Insolvency Event.

14.3 On termination of these Terms, you must return all of our property provided to you under these Terms, and must deliver any Products or Deliverables we have paid for.

14.4 Clauses 3, 4, and 7 to 19, survive termination or expiry of these Terms.

15. Assignment and nature of agreement

15.1 Neither party may assign its rights or obligations or subcontract any obligations under these Terms without the other party’s prior written consent (which will not be unreasonably withheld).

15.2 Notwithstanding clause 15.1, we may assign any or all of our rights or obligations under these Terms to another company within our corporate group.

15.3 You agree you are an independent contractor and are solely responsible for your own compliance with applicable legal requirements.  Nothing in these Terms creates any employment, joint venture, partnership, or agency relationship between us both.

16. Notices

16.1 Either you or we will give any required notice under these Terms to the other at the address or email details last notified to the other. All physical notices must be couriered to be effective.

17. Disputes

17.1 If a dispute arises under or in relation to these Terms, the affected party will promptly notify the other with the details. 

17.2 Promptly after receiving notice of a dispute, both our representatives will try to resolve the dispute by good faith negotiations on a without prejudice basis.

17.3 If both our representatives have not resolved the dispute within 14 days of it being notified, either of us may pursue other forms of dispute resolution.  Nothing in these Terms prevents either of us from commencing court proceedings to seek urgent interim or interlocutory relief at any time.

18. General

18.1 No delay or failure by either party to exercise any rights or remedies constitutes a waiver or variation of any such right or remedy.

18.2 If part or all of any provision of these Terms is illegal or unenforceable, then that provision will be interpreted as needed to ensure it is not illegal or unenforceable. If that is not possible, the provision (or part of it) will be severed from these Terms and the remaining provisions continue in full force and effect.

18.3 The law of New South Wales, Australia governs these Terms, all Purchase Orders and all transactions between you and us arising out of the supply of Products or Services by you to us.  We both submit to the non-exclusive jurisdiction of Sydney courts.

18.4 The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any transaction conducted in accordance with, or under, these Terms.

19. Definitions

Confidential Information means any information, in whatever form, about our business or the business of any of our customers disclosed to you or learnt by you in providing the Products or performing the Services.  It includes any information or data you may develop in the course of providing the Products or performing the Services.  It does not include information which:

(a) is in the public domain (unless that information is in the public domain because it has been disclosed without our consent); or

(b) you can prove you already knew, or independently acquired (provided that the source was in possession of the information lawfully and can disclose it to you on a non-confidential basis).

Datacom Group means any company in Datacom’s consolidated group in Australia, New Zealand or elsewhere from time to time, including all companies in which any member of the Datacom Group holds more than 50% of the shares.

Deliverables means any product, material, information, or thing produced as part of the Services and/or any Purchase Order.  

GST means the tax payable on taxable supplies under the GST Law.

GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Human Rights means rights and freedoms that have been universally recognised in international law, domestic law or international declarations or standards, which relate to the rights of employees in the workplace including those that are set out in The Universal Declaration of Human Rights, The International Labour Organization’s Declaration on Fundamental Principles and Rights at Work and the rights and obligations enshrined in any Modern Slavery Law.

Insolvency Event means any of the following events (whether actual or threatened) in any jurisdiction:  (a) a party’s insolvency, winding up, dissolution, entry into an arrangement with creditors or reorganisation (except for purposes of amalgamation, or solvent reconstruction on terms previously approved by the other party);  (b) a receiver, liquidator or administrator is appointed over the assets of a party;  (c) a party suspends payment of its debts or is unable to pay its debts when they fall due;  (d) a creditor or encumbrancer of a party attaches or takes possession of (or other such process) the whole or any part of a party’s assets; or (e) any analogous event to the above.

Intellectual Property means all rights in respect of patents, copyrights, designs, circuit layouts, trademarks, trade secrets, know-how and all other intellectual and industrial property rights throughout the world, including all moral rights.

Modern Slavery Law means the Modern Slavery Act 2018 (Cth), and any other anti-modern slavery laws or regulations in force.

Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

Personnel means a party’s officers, employees, agents, contractors, and advisors.

PPSA means the Personal Properties Securities Act 2009.

Products mean the products to be provided by you to us under these Terms and/or any Purchase Order, and includes all Deliverables. 

Purchase Order means a written order for Products or Services from us that complies with our ordering procedures (as notified to you from time to time).

Services mean the services to be provided by you to us under these Terms and/or any Purchase Order. 

Tax Invoice has the meaning given to that term in the GST Law.

Terms means these Terms of Trade.

we, our and us means any member of the Datacom Group to whom you supply Products or Services and their Personnel. 

you and your means the supplier of the Products or Services (and includes any agent, contractor, or representative of that supplier). If the supplier is made up of more than one person, the obligations on the supplier in these Terms apply to all such persons jointly and severally.

Last review: January 2024