Terms and Conditions

SUPPLIER TO SGS AUSTRALIA GENERAL TERMS AND CONDITIONS

1.	Definitions

	1.1.	Definitions In this Agreement the following expressions shall have the following meanings:

	“Agreement”	means the agreement executed between SGS and the Contractor constituted by the documents referred to in clause 2.1.
	“Contractor”	means the supplier named under this Agreement and includes any of their personal representatives, successors and permitted assigns.
	“Documents”	means all documents produced by the Contractor under this Agreement including any reports, plans, drawings, specifications, calculations, models, software and records.
	“Goods”	means the goods, the subject of this Agreement or those specified in the Order.
	“GST”	means the Goods and Services Tax as defined under section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
	“KPI”	means the Key Performance Indicators (if any) indicated under the Scope of Supply.
	“Order”	means a purchase order from SGS to the Contractor under this Agreement or requiring the supply of specific Goods.
	“Period”	means SGS's accounting period of one month commencing on the first day of each calendar month.
	“Price Schedule"	means the Price Schedule agreed in writing between the parties.
	“Services”	means the services to be supplied in accordance with this Agreement.
	“SGS”	means SGS Australia Pty Ltd (ABN 44 000 964 278), its successors and assigns.
	“Scope of Supply”	means the Scope of Supply agreed in writing between the parties.
	“Supply”	means the whole of the work including the Services required to be executed by this Agreement or in accordance with this Agreement.
	“Term”	means the duration for which this Agreement will be in operation agreed in writing between the parties.

	All other definitions and interpretations will be as defined in the documents referred in Clause 2.1.

2.	Construction and Interpretation

	2.1.	Construction: This Agreement shall include:

	a)	The Purchase Order;
	b)	The Price Schedule; and
	c)	The Scope of Supply

	2.2.	Interpretation

	a)	Each document forming this Agreement shall be read in conjunction with all other documents. If there is any conflict or inconsistency between the documents comprising this Agreement then, for the purpose only of construction and interpretation of the Agreement, and to the extent necessary to resolve any such conflict or inconsistency, the order of precedence shall be the order of documents specified in clause 2.1 of the Agreement.
	b)	Where a party is more than one person, those persons are bound individually and together.
	c)	References to statutes, regulations, ordinances or by-laws include all statutes, regulations, ordinances or by-laws amending, consolidating or replacing them.
	d)	Where a reference is made to any person body or authority that reference will, if the person, body or authority has ceased to exist, be deemed to be a reference to the person, body or authority which serves substantially the same objects as that person, body or authority.
	e)	Headings and the index of this Agreement have been inserted for guidance only and will not form part of or limit or govern the construction of this Agreement.

3.	Scope of Supply The Supply to be performed by the Contractor is set out in the Scope of Supply.
4.	Specified Brands Where a particular brand of Goods is specified under this Agreement, the brand specified or a brand equivalent to that specified shall be supplied unless otherwise approved in writing by SGS, and reserves the right to reject any equivalent brand specified.
5.	Samples

	a)	Where required under the Scope of Supply the Contractor shall supply Samples of all or any of the Goods the subject of this Agreement free of all charges.
	b)	Where the Goods are being supplied in bulk this Agreement or shall provide samples in nominated amounts of the Goods as and when required by SGS.
	c)	Such Samples may be retained and used by SGS and on the termination of this Agreement returned or paid for, in accordance with the Specification.

6.	Packaging The Contractor shall ensure that all Goods are properly, safely and securely packaged and labeled for identification and safety.
7.	Delivery of Goods

	a)	The Contractor is responsible for the delivery of the Goods in full to the locations and at the times stated in this Agreement or Order as the case may be.
	b)	The Contractor must notify SGS should there be a delay beyond the scheduled delivery time and date. The Contractor shall promptly notify SGS in writing. Such notification shall not release the Contractor from its obligation to deliver by the date and time for delivery or from any other obligation under this Agreement, unless otherwise agreed by SGS. The Contractor shall not be entitled to any increase in the prices indicated under the Price Schedule or damages, costs or expenses in connection with the delay.
	c)	Material Safety Data Sheets (“MSDS”): MSDS will be supplied by the Contractor for any sample or item requiring a MSDS supplied under the Contract.

8.	Contractor's Warranty

	a)	The Contractor warrants that all Goods, subject to normal wear and tear (other than consumables), are free of any defects in material, design and workmanship for a minimum period of for twelve months from the date of delivery on site.
	b)	If no samples or standards are applicable, Goods supplied shall be suitable for their purpose as stated in this Agreement and fully capable of their intended use in accordance with the Scope of Supply.
	c)	Where the term of the manufacturers’ warranties exceeds the warranty period under this Agreement, the Contractor shall assign wherever possible such warranty to SGS prior affecting the Supply. The Contractor warrants that it has significant knowledge and experience in the Supply and that it has and will continue to have adequate, skilled, competent and fully trained organization capable in all aspects of performing the Supply.
	d)	The Contractor warrants that all of the Supply will be provided in an efficient manner and in accordance with all applicable legislation, laws or regulations and the Scope of Supply and any other specifications agreed in writing between the Contractor and SGS.
	e)	Where no standards are specified in this Agreement, the Contractor warrants the Supply and the Goods shall comply with the appropriate and current standard of the Standards Association of Australia and if there is not such standard then with the appropriate and current standard of the International Standards Organisation.
	f)	The Contractor must abide by the SGS Code of Integrity and Professional Conduct available on Compliance & Integrity (to the extent it does not apply exclusively to employees of SGS). At SGS’s request, the Contractor will allow SGS’s duly appointed representative(s) to inspect, at reasonable times and under terms of confidentiality, his books and records for compliance with the foregoing.

9.	Receipt and Acceptance of Goods

	a)	Delivery and receipt of Goods shall not of itself constitute acceptance of the Goods by SGS, with acceptance being subject to the approval of SGS.
	b)	SGS will advise the Contractor within two business days of receipt of Goods if discrepancies are found between the invoice amount and the Goods delivered. The Contractor will rectify any discrepancy within one business day of notification by SGS.
	c)	SGS shall be deemed to have accepted the Goods when SGS notifies the Contractor that the Goods have been accepted or when after the lapse of 14 days SGS retains the Goods without notifying the Contractor that the Goods have been rejected.
	d)	Where prior to acceptance the Goods are found to be defective or not in accordance with the Contract, SGS may reject any or all of the Goods (the Rejected Goods).

10.	Rejection and Removal of Goods SGS shall notify the Contractor in writing within a reasonable time of the rejection of the Goods and may direct that the rejected Goods be removed and either replaced or rectified by the Contractor at the Contractor’s expense within such reasonable time as SGS may direct. Should the Contractor fail to duly remove, replace or rectify the rejected Goods within the time specified in the notice of rejection SGS shall be entitled to have the rejected Goods redelivered at the Contractor’s risk and expense to the Contractor’s premises. SGS shall not be responsible for the care or custody of any rejected Goods. Where the Contractor fails to deliver the Goods by the date for delivery, or where Goods are rejected and the Contractor fails to replace the rejected Goods or to deliver Goods conforming to the Contract, SGS shall have the right to purchase from another supplier substitute Goods of the kind and quality ordered. Any extra cost or expense incurred over and above the prices indicated in the Price Schedule shall be a debt due from the Contractor to SGS as the case may be.
11.	Deficient Goods Where after acceptance and during the period of warranty under clause 8 of this Agreement, the Goods are found not to be in accordance with this Agreement or of an inferior quality, or differing from those ordered (whether by sample or quality), SGS may notify the Contractor of the deficiency and require the Contractor to:

	a)	Remove the deficient Goods from SGS’s premises and at the Contractor’s expense either to replace them with Goods conforming to this Agreement or to rectify them to conform; or
	b)	Refund the price paid for the deficient Goods from SGS’s premises.

	Where the deficient Goods are not replaced or rectified by the Contractor, SGS may exercise its rights under Clause 10.
12.	Agreement of Contractor The Contractor agrees to commence, perform and complete the Services in accordance with this Contract.
13.	Price Schedule

	13.1.	Charges The charges which are set out in the Price Schedule shall be firm for at least 12 months and not subject to variation for profits, labor, fuel, materials, equipment, taxed, levies, freight, insurance, packaging, GST administration expenses, and other charges in connection with the delivery of the Goods and the return of Goods incorrectly supplied and all packaging.
	13.2.	Agreement to Pay In accordance with Clause 14 below, SGS agrees to pay the Contractor in consideration of the satisfactory, timely and complete performance of the Supply in accordance with the terms of this Agreement.

14.	Payment

	14.1.	Payment Claim Unless otherwise provided in this Agreement, all payments shall be made 30 days from the end of the month of invoice, provided that the Goods have been accepted by SGS and the Supply provided under a written purchase order from SGS. Payment is subject to the rendering by the Contractor of a compliant tax invoice and including the number of the purchase order to which the Supply relates, and a brief description of the Supply.
	14.2.	Early Discount Should an early discount plan be provided, SGS will endeavor to expedite the payment in accordance with its accounting processes, but is not bound to accept early payment discounts for all payments.

15.	Variations

	15.1.	Requests This Agreement is for fixed prices as indicated in the Price Schedule. However, SGS may at any time and from time to time, by notice in writing to the Contractor, request a variation to the Supply either by way of increase or decrease in the Supply, or by way of changes in the character or quality of material or methods used in providing the Supply.
	15.2.	Incorporation Any variation to the Supply agreed between the Contractor and SGS in accordance with Clause 16.1 shall be deemed to be part of the Supply.

16.	Indemnity and Insurance

	16.1.	Indemnity The Contractor shall indemnify and keep indemnified SGS against any loss or damage and against all claims, demands, proceedings, costs, charges and expenses whatsoever, arising out of any negligent act or omission of the Contractor or out of any breach of this Agreement by the Contractor.
	16.2.	Care of the Supply The Contractor shall be responsible for the care of the Supply under this Agreement including the materials to be supplied, the materials in transit & storage, plant & vehicles being used to affect the Supply until SGS has accepted the receipt of the Supply & certified the quantity of materials received.
	16.3.	Security The Contractor shall make suitable arrangements to protect its own plant, equipment and vehicles while at SGS sites. SGS is not responsible for any damage or vandalism to the Contractor’s property.
	16.4.	Required Insurance

	a)	The Contractor shall at its own expense procure and maintain adequate public and product liability, professional indemnity, and workers compensation insurance to the satisfaction of SGS.
	b)	The Contractor must provide evidence of the terms and currency of the insurances under 16.4(a) when requested by SGS.

17.	Term The services required under this Contract shall be for the period agreed in writing between the parties.
18.	Performance Measure As a part of the contract management process, SGS will regularly review the Contractor’s performance and service quality to ensure Services and outputs comply with the KPI. SGS will conduct annually a formal review to ensure the KPI requirements have been met. Annual extensions may be granted based on satisfactory performance of the KPI by the Contractor. The KPI may be modified at SGS discretion upon reasonable prior written notice to the Contractor. Subject to Clause 19, failure by the Contractor to satisfy the KPI will be considered a default and SGS reserves the right to terminate the Contract.
19.	Force Majeure

	19.1.	Notice If either party is unable at any time whether wholly or in part by reason of force majeure to carry out all or any of its obligations under the Contract, that party shall give to the other prompt written notice to that effect, giving full particulars of such force majeure as is claimed to exist and to have occurred and thereupon the obligations under this Agreement of the party giving that notice shall, to the extent that they are affected by such force majeure, be suspended during but not longer than the continuance of the force majeure. The party so claiming force majeure shall immediately take all reasonable steps within its power to remove or overcome the effects of that Force Majeure.
	19.2.	Definition For the purposes of this Clause 19, “force majeure” means any cause beyond the control of the party affected which that party could not reasonably have foreseen and guarded against, including (without limitation) act of God, fires, riots, civil commotion or civil unrest, arson, interference by civil or military authorities or act of war (declared or undeclared). Force majeure however does not include the negligence by any party, including acts which under normal circumstances are deemed to be avoidable, delays by the Contractor or Sub Contractors organizations or their employees / agents / vendors.

20.	Termination for Default

	20.1.	Default by the Contractor If the Contractor fails, neglects or refuses to comply with its obligations under this Agreement in any material manner and after notice in writing from SGS specifying the default, fails to take all reasonable steps to remedy the default within seven (7) calendar days of the date of receipt of the notice, the Owner may forthwith, upon giving notice in writing to the Contractor, and without prejudice to any of its rights or remedies, terminate this Agreement.
	20.2.	Default by SGS Subject to clause 14 of this Agreement, SGS will be under default if it fails to pay a claim approved by SGS within 45 days from date of approval of such claim without assigning a reason to the Contractor and the latter may terminate this Agreement immediately and without prejudice to any of its rights or remedies.

21.	Other Termination The Contract can be terminated by the occurrence of any or more of the following events:

	a)	By the expiry of the Term;
	b)	By mutual written agreement; or
	c)	If the Contractor becomes insolvent, enters into liquidation, receivership for all or part of its assets.

	SGS further reserves the right to terminate this Agreement at any time before the Term by giving 30 days written notice to the Contractor.
22.	Effects of Termination If this Agreement is terminated in accordance with clause 20 or 21, the Contractor shall, subject to any set-off SGS may have, be entitled to payment for the Supply provided to the date of termination and to no other amount whatsoever.
23.	Confidentiality The parties to this Agreement must not disclose to third parties (other than employees, advisors and affiliates) or use any confidential, technical or business information received from each other and belonging to either of them except where:

	a)	The owner of the information authorized the use or disclosure in writing;
	b)	The information is generally available to the public prior the disclosure; or
	c)	The information must be disclosed by law to a court or government authority.

	This clause 23 survives the termination of this Agreement.
24.	Intellectual Property The Contractor assigns to SGS all of its future right, title, interest and property (including all copyright and intellectual property rights) in all Documents upon its creation and all copyright and intellectual property rights in the Documents will vest in SGS.
25.	Assignment or Novation

	25.1.	By the Contractor The Contractor or its subcontractors shall not, without the prior written approval of SGS, assign or novate this Agreement or any part thereof or any benefit or moneys or interests thereunder. Approval to assign shall be on the terms and conditions determined by SGS.
	25.2.	By SGS SGS reserves the right to assign or novate its rights and duties to another agency or body corporate with prior written notification to the Contractor.

26.	Entire Agreement This Contract supersedes all prior arrangements and undertakings between the parties and constitutes the entire agreement between SGS and the Contractor relating to the subject matter of the Contract.
27.	Notices All notices and invoices or inquiries relating in any way to this Agreement and the Supply, shall be directed by the parties to this agreement as follows:
28.	Governing Law This Agreement is governed by the Statutes and the Laws of the State of Western Australia and subject to the non-exclusive jurisdiction of the courts of the State of Western Australia.
29.	Statutory Compliance The Contractor shall comply with the requirements of all applicable Acts, statutes, laws and all ordinances, rules, regulations, throughout the performance of the Contract.
30.	No Exclusivity or Minimum Purchase This Agreement does not grant any exclusivity to the Contractor and SGS reserves the right to appoint other suppliers to supply the Goods in its absolute discretion at anytime in conjunction with or without the Goods being delivered by the Contractor. SGS is not committed to any minimum level of purchase from the Contractor.
31.	Sustainability Contractor shall meet SGS environmental, health and safety and employment policies, at a minimum, with respect to their operations as a whole and comply with all applicable local and national laws. The Contractor  shall recognize their responsibility to carry out their procurement activities in an environmentally and socially responsible manner. They will strive to incorporate environmental and social considerations into theirs product and services and shall be able to demonstrate compliance with the SGS policies at the request and satisfaction of SGS. The Contractor will implement appropriate internal business processes to ensure compliance with SGS policies. SGS routinely utilizes independent third parties to assess suppliers’ compliance with the policies. The assessments generally include confidential interviews with employees and on-site contract workers. If a SGS supplier fails to uphold any aspect of the SGS requirements, SGS will indicate the corrective actions that the suppliers shall implement. SGS may terminate any agreement with any supplier that cannot demonstrate that they are upholding the SGS requirements.
32.	Miscellaneous

	32.1	Severability The invalidity or unenforceability of any one or more of the provisions of this Agreement will not invalidate or render unenforceable the remaining provisions of this Agreement. Any illegal or invalid provision of this Agreement will be severable and all other provisions will remain in full force and effect.
	32.2.	Implied Covenants Negatived The covenants, powers and provisions (if any) implied into agreements by any law are expressly negatived.
	32.3.	Consent of SGS Where SGS consent or approval is required the consent or approval must not be unreasonably withheld.
	32.4.	GST All amounts expressed to be payable under this Agreement are expressed exclusive of any GST.