Terms & Conditions of Supply
TERMS AND CONDITIONS OF SALE FOR THE SUPPLY OF GOODS AND SERVICES
Except as otherwise expressly agreed in writing, these are the entire terms and conditions of sale (“Terms”) applicable to all goods and services (“Goods”) supplied to Philmac Pty. Ltd. (ABN 17 007 873 047) or it’s related entities (“Philmac”) by the Seller (“You”) identified on the first page of Philmac’s Purchase Order and/or Purchase Schedule (“Order”) and you agree that the following Terms will apply to each supply of Goods to Philmac by you. These Terms apply irrespective of any provisions to the contrary which may appear on the face or the reverse of any order form, order confirmation, invoice, tax invoice or any other document issued by you.
1.1 Claim means any claim, action, proceeding, loss (including direct, indirect or consequential loss), damage, cost (including legal costs and expenses), expense or liability whatsoever incurred or suffered by, or brought, made or recovered by any person against Philmac and however arising (whether or not presently ascertained, immediate, future or contingent).
1.2 Quote means Quotation or an Invitation of Offer to Supply Goods to Philmac, and is not and shall not be legally binding on Philmac or you until accepted by Philmac by issue of a valid Philmac Order.
1.3 The expressions GST, Invoice, Tax Invoice, adjustment event, adjustment note have their meanings defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended from time to time.
1.4 Supply means procurement, production and/or manufacture and delivery of the Goods by you and specifically for Philmac and/or performance of the Goods or Order by you, subject to these Terms.
1.5 Supplier Handbook means the Philmac Suppliers Handbook, and/or the Philmac Contractors Handbook (if any), prepared by Philmac from time to time, and made available to you.
1.6 Supplier Agreement means an agreement, document or instruction prepared by Philmac, made available to and accepted by you, stipulating specific requirements and obligations related to the Supply of Goods to Philmac, and which are additional to and form part of these Terms.
1.7 Sub-letting means contracting, subcontracting, assigning or otherwise authorising a third or subsequent party to undertake the Supply of Goods to Philmac.
1.8 Packing List means delivery docket, delivery note, cart-note or delivery document.
1.9 Goods means those Goods Supplied by you to Philmac, pursuant to the relevant Order.
1.10 No rule of constriction applies to the interpretation of these Terms to the disadvantage of one party on the basis that such party put forward these Terms or any relevant part of them.
1.11 “You” includes, but shall not be limited to, the Seller, Supplier, Contractor, Subcontractor, and their officers, employees, representatives or agents (authorised or otherwise).
1.12 Headings are inserted for ease of reference and do not effect interpretation; the singular includes the plural and vice versa and forms of the words (including defined terms) include any other form of those words.
11.1 References to “the contract” are references to the contract formed between Philmac and you for the Supply of Goods governed by these Terms.
11.2 These Terms prevail over the provisions of any Order documentation, Supplier Agreement (if any), Supplier Handbook or any other documents relating to the Goods.
2. PRICE, ORDERING, CANCELLATIONS AND FORCE MAJUERE
2.1 All orders for the Supply of Goods to Philmac shall be made on Philmac’s Order forms, unless otherwise agreed in writing by Philmac. Orders are subject to acceptance by you of these Terms as the final Terms.
2.2 Variations to these Terms, or terms offered by you, which differ from these Terms, are incorporated into these Terms only if Philmac accepts them in writing prior to the receipt of Goods. Acceptance of Goods or payment for them by Philmac will not be deemed acceptance of any such new or varied terms.
2.3 Orders are placed on the condition that all costs related to the Supply of the Goods have been identified by you during any negotiations and included in the Quote and then in Philmac's Order. It is your responsibility to ensure that all costs are included in Philmac's Order and Philmac will not pay any additional costs unless otherwise agreed in writing.
2.4 The prices shown on the Order must match those last quoted and notified by you and accepted by Philmac not less than thirty (30) days prior to the issue of the Order. Any variation of the price, discounts or proposed settlement terms will render the Order null and void unless Philmac’s prior written approval is obtained. Any such agreed price variation takes effect after completion of the current firm Order and period quoted in the Order.
2.5 Philmac may order Goods from you on the basis of its anticipated demands.
2.6 Unless specifically agreed in writing, you shall not anticipate Philmac’s future requirements nor make any material commitment or production arrangements in excess of the amount on Philmac’s Order, or in advance of the time required to meet delivery dates on Philmac’s Order.
2.7 Philmac’s Order number must be shown on all Packing Lists and Invoices. Original Bills of Lading or Consignment Notes, etc., signed by the carrier, must be attached to Invoices and both mailed to Philmac no later than the day after shipment of the Goods.
2.8 All Goods are to be delivered Free Into Store (F.I.S.) to the named delivery location specified in the Order, unless otherwise stated in the Order. Any additional, packaging, handling and cartage charges must be shown separately and will be accepted only if negotiated and specified on your original quotation and notified to and accepted by Philmac, prior to Order placement. Goods will remain at your own risk until such time as Philmac has received notification of their delivery and receipt at the specified delivery location.
2.9 Philmac reserves the right to cancel the Order, or any part of it, or suspend delivery of shipment, without liability for deliveries of Goods previously made, completed and subsequently delivered under the Order:
(a) if at any time, you cease to carry on your normal course of business, fail to meet your obligations under the Order, or if any proceedings under bankruptcy and insolvency laws are brought against you;
(b) any information in the Order contains any material error or omission;
(c) Goods delivered for part of the Order differ in quality, quantity or value from the specification and/or sample submitted by you or the description in the Order;
(d) the shipment or Supply of Goods is not made in the manner and within the time period set out in the Order or as specified in the Supplier Agreement (if any).
If Philmac has to arrange alternate Supply, all costs will be to your account.
2.10 Further to clause 2.9, Philmac may cancel the whole or any part of an Order by giving notice in writing to you at any time prior to Supply of the Goods, without incurring any liability to you. Philmac will endeavour to minimise the extent of any cancellation (but without liability to you for any failure or perceived failure to do so).
2.11 If you fail to Supply the Goods in the Order by the due date for delivery indicated in the Order for any reason, Philmac may, on giving written notice and without affecting our other rights, cancel the Order, obtain replacement Goods from a third party and/or claim reimbursement of additional costs arising from your failure to comply with the Order and damages for breach of contract. Acceptance of overdue Goods will not be deemed as a waiver of any of our rights.
2.12 You must bear the costs of insuring the Goods under a goods-in-transit policy with a reputable insurer unless otherwise agreed.
3. SUPPLY OF GOODS
3.1 Prior to the commencement of the process of Supply of Goods to Philmac, a sample(s) of the Goods (where appropriate and requested by Philmac) are to be submitted to Philmac for its written approval.
3.2 Prior to the commencement of the process of on-site Supply of Goods to Philmac, you must complete and deliver to Philmac a Philmac Contractor Safety and Environmental Responsibilities Agreement (“PCSERA”), in the form approved by Philmac and made available to you.
3.3 Where the description of the Goods in the Order refers to a particular brand name or some other specification regarding the quality of the Goods or the method of manufacture, Philmac will not accept any substitute or equivalent goods unless Philmac’s prior written approval is obtained.
3.4 You undertake to inform Philmac without delay of any existing, threatened or foreseen interruptions that may jeopardise Supply of the Goods in the Order to Philmac.
3.5 Philmac reserves the right, upon reasonable notice, to enter your premises to inspect the Goods or any Goods in progress.
3.6 It is your responsibility to inspect all Goods prior to delivery to Philmac and to ensure that they are in accordance with the Order, specifications, and, where applicable, Philmac’s Drawing specifications and Supplier Agreement (if any). If requested, a Certificate of Inspection completed by you, and as may be specified in Philmac’s Supplier Agreement (if any), must accompany all receipts of Goods from you.
3.7 You must obtain Philmac’s prior written approval before altering, in any way, your design or manufacturing process or any material specification, which may vary the Goods from Philmac’s specification or approved sample. You must provide a sample, data sheet and processing guide (if any), and stipulate the reason for the change, and Philmac must test and approve the sample and specification prior to Supply of the Goods.
3.8 Philmac’s express written approval must be sought prior to sub-letting of any portion of Supply of Goods in the Order.
4. DELIVERY, DELIVERY REQUIREMENTS, INSPECTION AND ACCEPTANCE
4.1 Time is of the essence regarding the delivery date, delivery location and other delivery instructions stated in the Order. You must, in accordance with an Order made pursuant to clause 2.5, Supply the Goods by the due date and to the named delivery location specified in the Order and in accordance with these Terms. Failure to Supply the Goods as specified in the Order will result in Philmac seeking indemnity from you, as per clause 8.8 of these Terms.
4.2 You are deemed to accept an Order subject to these Terms if you do not advise Philmac to the contrary, in writing, within seven (7) days of the date shown on the Order, or if you perform any part of the Order on or before that time.
4.3 You accept that the Supplier Handbook and the Supplier Agreement (if any), forms part of these Terms.
4.4 You must ensure that Goods are suitably packaged and prepared for transportation to preclude damage in transit and handling, and to comply with the carrier’s requirements, whilst securing minimum transportation costs and insurance rates. Each package received by Philmac must be accompanied by a Packing List, which specifies your name, the contents and quantity of the Goods, Philmac’s Order number and any other requirements that may be specified in the Order, the Supplier Agreement (if any) and these Terms.
4.5 All Goods are subject to acceptance by Philmac. Even if Philmac accepts delivery of the Goods or pays in whole or any part of the total price, acceptance of the Goods by Philmac is subject to inspection and testing by Philmac after arrival and unpacking at the specified delivery location, and compliance with the Order and these Terms.
4.6 On receipt of Goods, unless otherwise specified in the Supplier Agreement (if any), Philmac shall inspect a quantity of the Goods using recognised sampling inspection techniques and, if on inspection a sample is rejected, Philmac shall return the whole delivery for credit at your expense and will only hold any rejected Goods at your own risk. If replacement Goods are supplied, freight charges shall be to your account and this clause shall apply as for normal deliveries.
4.7 Subject to clause 4.6, if a more thorough inspection of the Goods is required than normally necessary on receipt, as a result of unsatisfactory delivery (as determined by Philmac), the cost of this shall be to your account. Philmac will notify you of any failings or non-compliance and to this extent, you waive your right to object to complaints as being untimely.
4.8 The quantities, weights, dimensions and fitness for purpose of the Goods ascertained by Philmac in the course of inspection will be final for the purpose of the Order and Supplier Agreement (if any).
4.9 Philmac’s right to inspect and reject Goods and to enforce our rights under clause 9 is not waived by the payment for the Goods or by acceptance of delivery or Supply prior to inspection. The receipt of Goods will not constitute acceptance by Philmac of defective deliveries.
4.10 Title in the Goods will pass to Philmac on payment by Philmac for the Goods. The risk in relation to the Goods passes to Philmac when Philmac has inspected the Goods and accepted them.
4.11 Unless approval is obtained from Philmac prior to delivery of Goods, Philmac may return Goods supplied in excess of the Order, at your expense.
5. PAYMENT, DUTY AND TAXES
5.1. If GST is payable on the Supply of Goods, you must supply Philmac with a Tax Invoice before any payment under the Order will be processed. Payment is contingent upon you providing Philmac with a valid Tax Invoice and an adjustment note if any adjustment event occurs, as defined in clause 1.3.
5.2. Tax Invoices must not be sent to Philmac prior to the Supply of Goods, unless otherwise specified in the Order or your Quote, or the Goods are those identified in Clause 5.4.
5.3. Unless otherwise specified in the Order, Philmac will pay any amounts due within sixty (60) days after the close of the month of Supply of Goods, subject to your compliance with these Terms. Terms of settlement of overseas accounts, either in part or in whole, will be those specified on the Order.
5.4. Philmac reserves the right to apply, from time to time, for extended trading terms, up to and including one hundred and twenty (120) days maximum from after the close of the month of Supply of Goods, by mutual agreement with you.
5.5. Where the Order describes the Goods to be Supplied, in general terms, as either “new tooling” or “purpose built equipment”, Philmac will action payment of the following amounts, in accordance with clause 5.3, on receipt of a valid Tax Invoice, as defined in clause 1.3:
a) On completion by you and approval by Philmac of design and the purchase of materials necessary for the Supply of Goods – twenty five (25) percent of the total purchase price;
b) On completion of 33% of manufacture – twenty (20) percent of the total purchase price;
c) On completion of 66% of manufacture – twenty (20) percent of the total purchase price;
d) On delivery of the Goods and in compliance with the Order, the Terms and the Supplier Agreement (if any) – twenty (20) percent of the total purchase price; and
e) Following successful completion of one (1) complete operation of the new tooling or purpose built equipment to which the Goods relate and to the satisfaction of Philmac, and allowing for one new tooling or purpose built equipment adjustment – fifteen (15) percent of the total purchase price.
5.6. Payment of Invoices does not affect our right to dispute Invoices or to make claims against you in respect of Goods.
5.7. Some of the materials used by you and which may be incorporated in the Supply of Goods to Philmac, may be an imported material that may be subject to government duty (“duty”). You will be required to provide information and documentation to Australian Customs to establish the duty content of the Goods, such that Philmac are able to claim Duty Drawback on the finished products that Philmac export.
5.8. Where GST is imposed or subsequently varied during the term of the Order, so long as you issue a valid Tax Invoice, you may charge GST at the prevailing rate on the Supply of Goods with respect to the Order and recover from Philmac the amount of the GST.
5.9. If, as a result of a change in the rate of GST or a change in the value or amount upon which GST is imposed, there is a reduction in or abolition of any existing taxes, duties or statutory charges (“Taxes”), the Order (excluding the GST) payable by Philmac will be reduced by the same amount as your actual total costs (including any Taxes but excluding any input GST paid or payable by you) are reduced.
6. INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION
6.1. You warrant that any Goods Supplied to Philmac will not infringe any patent, trademark, copyright, industrial design or process of manufacture. Any Claim brought against Philmac for any alleged infringement of the above must be investigated, defended and dealt with by you at your liability, and you will indemnify Philmac for all costs, damages and expenses which may be incurred by Philmac in relation to any Claim.
6.2. You agree that Philmac owns all intellectual property rights ('IPR') in materials supplied to you by Philmac and that all IPR created or arising as a result of or in connection with the Supply of Goods (where the Goods are made using Philmac's property or are made, or provided, specifically at Philmac's request) vest in Philmac or shall be assigned to Philmac, unless otherwise agreed. You must do all things and execute any document Philmac may require to ensure Philmac own such IPR. All copies of concepts, film, images, art work, software and text design, produced or printed by you in connection with such IPR becomes the property of Philmac on full payment of Invoice and must be provided to Philmac. All drawings provided to you by Philmac must also be returned to Philmac. All Scrap and Surplus materials identified in clause 10.1 must be converted into a form other than the Goods Supplied to Philmac upon return to you.
6.3. Philmac reserves the right, without claims or charges whatsoever, to revise, modify, access and dispose of its IPR as it desires.
6.4. All Confidential Information or copies of Confidential Information relating to Philmac provided to or obtained by you from any person, source, organisation or entity, for the purpose or as a result of Supply or potential Supply of Goods to Philmac shall be kept in the strictest confidence, and:
a)may only be used by you for the purpose of Supply or potential Supply of Goods to Philmac;
b)must not be disclosed to or discussed with any person, source, organisation or entity or reproduced in any way, shape or form, without the prior express written consent of Philmac; and
c) must, at Philmac’s option, be destroyed or returned to Philmac.
6.5 In the event of any uncertainty as to whether or not any of the Confidential Information referred to in clause 6.4 is confidential, you will treat such information as confidential until you have been advised by Philmac, in writing, that the information is in the public domain.
6.6 In the case of any breach of confidentiality in respect of the Confidential Information or any of it, you shall give to Philmac such assistance as is necessary in identifying the person(s), source(s), organisation(s) or entity(ies) responsible for such breach and in seeking relief against the person(s), source(s), organisation(s) or entity(ies) responsible and the use by third parties of any of the Confidential Information obtained as a result of such breach, without liability to Philmac.
6.7 Nothing in these Terms shall be construed as giving you any right, title, interest in or ownership of any of Philmac’s Confidential Information. All documents and materials containing or embodying any of Philmac's Confidential Information shall be and will remain the property of Philmac and you will not remove any of such documents or materials from Philmac’s premises without the prior express written consent of Philmac.
6.8 Reference to Confidential Information means technical, commercial and other information, know-how, plans, drawings, specifications and/or designs relating to the design, development, manufacture, production, registration, promotion, distribution, marketing, performance, and/or sale and/or proposed design, development, manufacture, production, registration, promotion, distribution, marketing, performance, and/or sale of Philmac products or any of them and/or information concerning the business transactions or associations with other persons or bodies including other technical or commercial cooperative or collaborative arrangements or financial arrangements or customers (existing or potential or otherwise) or licensors or licensees and without prejudice to the generality of the foregoing includes:
(i) all experimental, manufacturing, process, analytical, packaging, product, warehousing, quality control and quality assurance and marketing specifications, standards, procedures, processes, methods, instructions and techniques, samples, prototypes, formulae, application technologies, advice as to necessary equipment, drawings, flow-sheets, statements, monographs, writings of any kind, opinions, reports, manuals, books, reference or trade data or otherwise unwritten data or in the form of computer software or computer programs or any part thereof in any code or language; and
(ii) all cell lines, data and proprietary know-how relating to Philmac products;
(iii) any Confidential Information created by you;
(iv) information concerning the Supply of Goods between Philmac and any customer, licensee or supplier to Philmac or in connection with any work done pursuant to any joint venture agreement to which Philmac is a party;
(v) information concerning the business affairs and management of Philmac;
(vi) information concerning the takeover of Philmac by other companies and vice versa or the merger of Philmac with other companies or acquisition of assets of other companies or persons by Philmac and vice versa whether any such takeovers, mergers or acquisitions are suggested, threatened, proposed or pending;
(vii) information concerning the marketing and marketing plans of products manufactured, supplied or distributed by Philmac;
(viii) trade secrets and other confidential information obtained from a person or company in any joint venture or negotiations to which Philmac is a party; and
(ix) information concerning operational, control and recording systems established, used or accessed by Philmac including, but not limited to, warehousing, accounting, computer and administrative systems.
Information is not confidential in any of the following circumstances:
(a) it is in the public domain, unless it came into the public domain by a breach of confidentiality;
(b) it is already known by the Supplier, Contractor or their authorised representative or agent, at the time this document is entered into;
(c) it is obtained lawfully from a third party without any breach of confidentiality.
7. TOOLING, FITTINGS, JIGS & RELATED PLANT AND EQUIPMENT
7.1. All tooling, fittings, jigs and related plant and equipment owned, purchased or acquired at the expense of Philmac and supplied to you for use in production of Goods (“Tooling”) are and shall remain the property of Philmac and shall be branded, stamped and clearly marked: “PROPERTY OF PHILMAC PTY LTD”, together with the corresponding Philmac part number and/or Philmac plant number.
7.2. You acknowledge that in supplying Tooling to you, Philmac makes no representation as to its fitness for purpose nor that it is free from defects.
7.3. You will not use the Tooling for any purpose other than for the Supply of Goods to Philmac under these Terms, and you will not sell, agree to sell, lease, mortgage, pledge, assign, convey or party with possession, allow any mortgage, charge or lien to exist, alter, scrap or otherwise dispose or deal with the Tooling, without first obtaining Philmac’s express written consent.
7.4. You will ensure that the Tooling is only operated and maintained by properly trained personnel and that it is operated with all safeguards and warnings in place at all times. You operate Tooling at your own risk, without liability to Philmac.
7.5. Philmac reserves the right, upon reasonable notice, to enter your premises to inspect the Tooling, which, unless otherwise agreed, is to be kept by you in good order and repair, and to take possession of, or remove, any of the Tooling on demand, at any time. On receipt of a request for the return of the Tooling, you will prepare it for shipment and have it delivered to Philmac, at Philmac’s expense, in the same condition as originally received by you, reasonable wear and tear excepted.
7.6. If, during your retention of the Tooling, it is identified that an abnormal refurbishment (ie due to damage that is not from normal wear and tear) is required, agreement with Philmac must precede any commitment of expense.
7.7. You shall safeguard and insure all Tooling on your premises against loss, damage and fire, and against any other hazards for which you would normally insure your own Tooling. You must replace the Tooling, in value or in kind, if it is lost, damaged or destroyed on your premises. The Certificate of Currency in respect of any insurance shall be produced to Philmac upon demand.
8.1. You are liable for and shall indemnify Philmac against all Claims of any nature made against, incurred or suffered by Philmac by reason or in any way connected with the Supply of Goods under our Order and products incorporating the Goods supplied by you, to the extent that such liability or loss is caused by your breach of these Terms, or your act or omission (negligent or otherwise), including, without limitation, any injury to or death of persons and damage to or destruction of property.
8.2. You will indemnify Philmac against all Claims that may be made on Philmac as a result of the Goods or their importation, use, sale or resale, infringing or appearing to infringe any patent, copyright, design, trademark or other common law intellectual property rights in Australia or any other country.
8.3. This indemnity is a continuing indemnity and is in addition to any statutory rights or remedies Philmac may have or exercise against you.
8.4. Without derogating from you obligation to indemnify Philmac in accordance with clauses 8.1, 8.2 and 8.3, you agree that the burden of proof in respect of alleged defects rests with you and you will bear the costs of all product recalls.
8.5. Persons who perform Goods at Philmac’s premises under Philmac’s contract with you must comply with all relevant statutes, regulations and codes of conduct, and all instructions given by Philmac or any of Philmac’s representatives or agents. Philmac’s liability to you or your employees, representatives or agents (authorised or otherwise) for injury or death in the course of performance of the Goods is limited to the extent that they are caused by Philmac’s negligent act or omission.
8.6. You must effect and maintain appropriate insurance for your obligations under clause 8, which notes the interests of Philmac and will, on demand by Philmac, provide a Certificate of Currency signed by or on behalf of your relevant insurer.
8.7. Philmac is entitled to set-off against any amount payable to you by Philmac, by reason or in any way connected with the Supply of Goods, the amount of any Claim of any nature made against, incurred or suffered by Philmac.
8.8. If you fail to Supply Goods to Philmac in full, on or before the date specified in the Order, and your failure to Supply Goods results in Philmac incurring manufacturing down-time, you must, on demand, pay Philmac the total value incurred for the losses in manufacturing output and any subsequent costs incurred by Philmac in meeting its customers order and delivery requirements in respect of that Order. The total value shall not, in any way, be limited to the total value of the Order.
9.1. You warrant and represent to Philmac that the Goods supplied against our Order:
a) are of merchantable quality, free from any defects or deficiencies and fit and sufficient for the purpose intended for which we may make known to you or for which the Goods are commonly supplied;
b) comply and will be provided strictly in compliance with specifications and/or directions provided by Philmac from time to time, the Order, the Terms, the Supplier Agreement (if any) and all statutory requirements and regulations relating to:
i) their safety, manufacture, packaging, labeling, transportation and sale, and
ii) the nature, substance, quality, weight and measurement of the Goods; and
c) are free from any lawful security interest or encumbrance and that we will enjoy quiet possession of the Goods;
d) are free from defects in design, material and workmanship;
e)where the Goods are supplied by reference to a sample, the Goods will correspond with the sample; and
f) the use of the Goods by any other person or Philmac will not infringe the intellectual property rights of a third party.
9.2. Notwithstanding clause 9.1, you also warrant that the Goods supplied against our Order will comply with such standards of quality, performance, environmental and safety prescribed by the codes, provisions and regulations of the Standards Association of Australia, and/or other specified International Standards, and such Governmental or Public Authorities and Standards, as shall be applicable.
9.3. If the Goods are, in our reasonable opinion, defective or not in accordance with the Order, the Terms or the Supplier Agreement (if any), and you are then in breach of these warranties, Philmac may, without affecting its rights, require from you, at our option:
a) prompt replacement or re-supply of the Goods and the return of any defective Goods;
b) Supply of equivalent Goods and the return of any defective Goods;
c) repair of the Goods or payment of the cost of repairing the Goods;
d) payment of the cost of replacing or acquiring equivalent Goods;
e) a reduction of the purchase price; or
f) recall of the Goods and a refund of any part of the amount paid by Philmac for the Goods.
9.4 Further to Clause 9.3, you must, within seven (7) days of notification of such an event by Philmac, complete and deliver to Philmac a Supplier Non-Conformance Report (“SNCR”) in the form approved by Philmac and made available to you.
9.5 If Philmac have incorporated the Goods into other goods or assemblies (“Other Goods”) which subsequently have to be replaced, repaired, recalled or scrapped as a result of the Goods being defective, Philmac may, in addition to its rights in clause 9.3, require you to pay for the replacement, repair, recall or scrapping of the Other Goods.
9.6 You must notify Philmac of any product liability, recall or material warranty claims raised against you relating to the Goods or similar goods.
9.7 Where, in our reasonable opinion, it is necessary to avoid imminent danger or excessive loss or damage as a result of the Goods being defective, Philmac has the right to rectify deficiencies ascertained by them in the course of inspection of the Goods in accordance with clause 4.6, to your account.
9.8 The exercise of Philmac’s rights under this clause in respect of defective Goods must be exercised within twelve (12) months from the date of delivery of the Goods unless the Goods are incorporated into Other Goods which are subject to a warranty. In this case, Philmac can exercise its rights under this clause within the warranty period of the Other Goods.
10. SURPLUS AND SCRAP
10.1. Where raw materials are supplied by you at your expense, all surplus or scrap will remain your property and is to be returned to you at your expense upon Order fulfillment, unless agreed otherwise.
10.2. Where raw materials are supplied by you at Philmac’s expense, all surplus or scrap will remain the property of Philmac and is to be returned to Philmac at your expense upon Order fulfillment, unless agreed otherwise.
10.3. Where raw materials are supplied by Philmac at Philmac’s expense, all surplus or scrap will remain the property of Philmac and is to be returned to Philmac at Philmac’s expense upon Order fulfillment, unless agreed otherwise.
11. PLACE OF JURISDICTION AND APPLICABLE LAW
11.1 The construction, validity and performance of the Order and these Terms is governed by and will be construed in accordance with the laws in force in South Australia, Australia. All disputes in connection with the Order must be brought before the courts of law of South Australia, Australia and you submit to the non-exclusive jurisdiction of these courts of law in respect of all proceedings arising out of or in connection with these Terms.
11.2 The relationship between the parties constituted by these Terms is that of independent contractors and nothing express or implied will, or be deemed to, constitute the parties as principal and agent, partners, joint ventures or trustee and beneficiary.
11.3 Application of the Hague Convention relating to a Uniform Law on the International Sale of Goods, The United Nations Convention on Contracts for the International Sale of Goods or other conventions relating to the laws applicable to the sale of goods is precluded from these Terms.
11.4 These Terms are in addition to and without prejudice to Philmac’s rights under the Trade Practices Act 1974 (Cth) or any Fair Trading Acts.
11.5 You agree to be bound by and comply with the Privacy Amendment (Private Sector) Act 2000 (“Privacy Act”), incorporating the National Privacy Principles, and will ensure that all personal information obtained in connection with the Supply of Goods to Philmac will be dealt with in accordance with the Act. Personal information of a party may be accessed by that party by request to the other party, in accordance with the Privacy Act.
11.6 The failure by Philmac to insist upon your strict performance to these Terms or any delay by Philmac in exercising any of its remedies and rights under these Terms shall not constitute or be deemed a waiver or variation by Philmac or a waiver of any default or remedy therefore, and no waiver by Philmac of any breach shall constitute waiver of further or subsequent breaches.
12 FORCE MAJEURE
12.1 A party is not liable for the failure to perform, or delay in performing, an obligation (except an obligation to pay money) if each of the following is satisfied:
(a) the failure or delay arose from a cause beyond the reasonable control of that party. A cause beyond the reasonable control of the party includes an act of God, strike, lock-out, other industrial disturbance or labour difficulties, war, act of public enemy, blockade, revolution, riot, insurrection, civil commotion, lightening, storm, flood, fire, earthquake, explosion, embargo, unavailability of any essential equipment or materials, unavoidable accident, lack of transportation or anything done or not done by or to a person, except the party relying on the force majeure;
(b) the party took all reasonable precautions against that cause and did it best to mitigate its consequences. This does not require the parties to settle a labour dispute, if, in the party's opinion, that is not in its best interest;
(c) the party gave the other party notice of the clause as soon as practicable after becoming aware of it.
12.2 From the date this notice is served in accordance with clause 2.12, no party is required to perform its obligations under this document that is dependent on the delay or failed obligations until the party that gave notice is able to resume full performance of its obligations.
12.3 If the cause of the resulting failure or delay lasts for more than 30 days, the other party is entitled to terminate this document immediately by giving the other party written notice.
12.4 This clause 12 applies to allow Philmac to cancel or delay delivery of the Order, or any part of it.