Standard Purchasing Terms – ScaleFibre Australia Pty Ltd

Version 2.0 · Last updated 19 August 2026

These Standard Purchasing Terms apply to all purchases of goods and services by ScaleFibre Australia Pty Ltd (ABN 49 686 931 939, ACN 686 931 939) of PO Box 31, North Lakes, QLD 4509, Australia (the Company).

Please read these terms carefully. By accepting an Order, the Supplier agrees to be bound by them.

Where the Company acquires Goods or Services as a consumer for the purposes of the Australian Consumer Law, those Goods and Services come with guarantees that cannot be excluded under that Law. Nothing in these Conditions excludes, restricts or modifies any such guarantee, right or remedy, and no limitation of liability stated by the Supplier applies to it.

1. Definitions and Interpretation

1.1 Definitions

In these Conditions, the following definitions apply unless the context requires otherwise:

Acceptance means acceptance of Goods or Services by the Company in accordance with clause 8(c), and Accept and Accepted have corresponding meanings.
ACL means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Authorised Officer means a director or officer of the Company, or any other person expressly authorised in Writing by the Company to act on its behalf for the purposes of these Conditions.
Business Day means a day that is not a Saturday, Sunday or public holiday in Brisbane, Queensland.
Change Order means a written direction issued by the Company under clause 12(a) varying an Order.
Company means the ScaleFibre entity identified at the head of these Conditions, being the buyer of the Goods and Services.
Conditions means these Standard Purchasing Terms, together with any special conditions expressly agreed in Writing by an Authorised Officer.
Confidential Information has the meaning given in clause 15(a).
Contract means the contract between the Company and the Supplier for the purchase of Goods or Services, comprising these Conditions, the relevant Order and any other document expressly stated in the Order to form part of it.
Corporations Act means the Corporations Act 2001 (Cth).
Customer means any customer of the Company or of any member of the Group to whom the Goods are or may be resupplied, and includes any end user of the Goods.
Customer Delivery means delivery of the Goods by the Company or any member of the Group to a Customer.
Data Protection Law has the meaning given in clause 18(a).
Defect means any failure of the Goods or Services to comply with the warranties in clause 9(a), and Defective has a corresponding meaning.
Delivery Point means the location for delivery stated in the Order.
Force Majeure Event has the meaning given in clause 14(a).
Goods means the articles the Company agrees to buy from the Supplier under an Order, including all materials, components, software, firmware, documentation, packaging, spares and deliverables supplied with them or forming part of them, and, where clause 9(k) applies, includes Services.
Group means the Company, its ultimate holding company, and every subsidiary of that ultimate holding company from time to time.
GST has the meaning given in the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means, in relation to a Person, that the Person: (i) is unable to pay its debts as they fall due, is deemed or presumed insolvent, or admits in writing its inability to pay its debts, including where the Person is a company that is or is presumed to be insolvent within the meaning of section 95A or section 459C(2) of the Corporations Act, or is an individual who has committed an act of bankruptcy within the meaning of section 40 of the Bankruptcy Act 1966 (Cth) or is unable to pay their debts within the meaning of that Act; (ii) suspends, or threatens to suspend, payment of its debts, or commences negotiations with, or makes any composition, compromise, assignment or arrangement with, all or any class of its creditors otherwise than for the sole purpose of a solvent amalgamation or reconstruction, including a deed of company arrangement under Part 5.3A of the Corporations Act, a restructuring plan under Part 5.3B of the Corporations Act, a scheme of arrangement under Part 5.1 of the Corporations Act, or a personal insolvency agreement or debt agreement under Part IX or Part X of the Bankruptcy Act 1966 (Cth); (iii) becomes subject to any application, order, resolution, notice or appointment for or in connection with its winding up, liquidation, bankruptcy, dissolution, administration, restructuring, reorganisation or protection from creditors, including the service of a statutory demand under section 459E of the Corporations Act that is not satisfied, set aside or withdrawn within the period allowed, an application under section 459P or section 461 of the Corporations Act, or the appointment of an administrator under section 436A, 436B or 436C of the Corporations Act or of a restructuring practitioner under Part 5.3B of the Corporations Act; (iv) has a receiver, manager, controller (as defined in section 9 of the Corporations Act), trustee, custodian, administrator, liquidator, provisional liquidator, restructuring practitioner or analogous officer appointed over it or over the whole or any material part of its assets, or any Person becomes entitled to make such an appointment; (v) has any of its assets attached, levied on, sequestrated, distrained, or taken possession of by a creditor or encumbrancer, where the process is not discharged within fourteen (14) days, including the enforcement of a Security Interest and the giving of a notice under section 123, 130 or 132 of the PPSA; (vi) suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or (vii) becomes subject to any event or proceeding in any jurisdiction having an effect equivalent or similar to any of the foregoing. Clause 13(h) applies to the exercise of any right arising by reason of an Insolvency Event where that exercise is stayed under the Corporations Act.
Intellectual Property Rights means all industrial and intellectual property rights, whether registered or unregistered, comprising or relating to patents, utility models, trade marks, service marks, trade names, copyright and neighbouring rights (including in software, firmware and documentation), database rights, circuit layout rights and semiconductor topography rights, trade secrets, know-how, confidential information, domain names, works of authorship, designs, models, plant breeder’s rights and inventions, together with all applications, registrations, renewals, extensions and rights of action related to any of them under the laws of any jurisdiction in the world.
IP Claim has the meaning given in clause 16(g).
Order means a purchase order issued by the Company (whether on paper, by email or through an electronic procurement system) for the supply of Goods or Services, including any Change Order.
Party means a party to the Contract, being either the Company or the Supplier, and Parties means both of them.
Person includes a natural person and any corporate or unincorporated body, whether or not having separate legal personality.
Personal Information has the meaning given in clause 18(a).
PPSA means the Personal Property Securities Act 2009 (Cth) and its associated regulations.
PPS Register means the register established under section 147 of the PPSA.
Price means the price for the Goods or Services stated in the Order, which is inclusive of all charges for materials, manufacture, testing, certification, packaging, packing, marking, reels, drums, pallets, loading, carriage, freight, insurance, unloading and delivery to the Delivery Point, and of all customs duties, tariffs, import fees, brokerage charges, licences and levies, but exclusive of GST properly chargeable under clause 3(e).
Privacy Act means the Privacy Act 1988 (Cth).
Recall means any recall, withdrawal, retrofit, field notice, safety notice, corrective action or advisory in respect of Goods, whether required by a regulator, initiated by the Company, or initiated by the Supplier, and includes a voluntary recall notified under section 128 of the ACL and a compulsory recall under section 122 of the ACL.
Removal Costs means the reasonable and properly incurred costs of identifying, locating, retrieving, removing, de-installing, disconnecting, transporting and returning Defective Goods or Goods subject to a Recall, of supplying and installing replacement Goods, of re-terminating, re-splicing, re-testing and re-commissioning them, of making good any land, building, structure, pit, pole, duct or conduit disturbed in doing so, and of the Company’s reasonable internal labour and administration in doing any of those things.
Restricted Party means any Person that is the target of, designated under, or owned or controlled by a Person designated under, any Trade Controls, including any Person named on a restricted party, denied party, entity, blocked person, sanctioned person or debarment list maintained by any Sanctions Authority.
Sanctions Authority means any governmental or supranational authority administering Trade Controls, including the Australian Department of Foreign Affairs and Trade and its Australian Sanctions Office (which maintains the DFAT Consolidated List), Defence Export Controls within the Australian Department of Defence (which administers the Defence and Strategic Goods List made under the Defence Trade Controls Act 2012 (Cth)), the Australian Border Force and the Department of Home Affairs (which administer the Customs Act 1901 (Cth) and the Customs (Prohibited Exports) Regulations 1958 and Customs (Prohibited Imports) Regulations 1956), the United Nations Security Council (which maintains the UN Security Council Consolidated List), and, to the extent their measures apply to the Supplier, the Goods, the Services or any transaction under the Contract, the United States Department of the Treasury Office of Foreign Assets Control (Specially Designated Nationals and Blocked Persons List), the United States Department of Commerce Bureau of Industry and Security (Entity List, Denied Persons List and Unverified List), the United States Department of State, the Council of the European Union (EU Consolidated List) and the United Kingdom Office of Financial Sanctions Implementation (UK Sanctions List).
Security Interest has the meaning given in the PPSA.
Services means the services incidental to the supply of Goods that the Company agrees to buy from the Supplier under an Order, being limited to manufacturing, processing, fabrication, assembly, testing, inspection, calibration, certification, packing, packaging, labelling, freight, transport, logistics and warehousing services, together with any repair, refurbishment or replacement work carried out under clause 9 or clause 10, and all deliverables produced in the course of performing them. The Company does not acquire, and Services do not include, installation, construction work, building work, civil works, splicing, termination, commissioning or any other work performed at a site of the Company or of a Customer, and the Supplier must not perform any such work under an Order.
Specification means, for any Goods or Services, the specification, datasheet, drawing, sample, standard, statement of work or other description identified in or referred to in the Order and, to the extent not inconsistent with it, the Supplier’s own published specification or datasheet for those Goods or Services current at the date of the Order.
Supplier means the Person to whom the Order is addressed, being the seller of the Goods and Services.
Supplier Personnel means the Supplier’s employees, officers, agents, contractors, subcontractors and their respective personnel engaged in performing the Contract.
Tax Invoice has the meaning given in the GST Act.
Trade Controls has the meaning given in clause 17(b).
Warranty Period has the meaning given in clause 9(b).
WHS Legislation means the Work Health and Safety Act 2011 (Qld) and the Work Health and Safety Regulation 2011 (Qld), the Electrical Safety Act 2002 (Qld) and the Electrical Safety Regulation 2013 (Qld), and the corresponding legislation of any other State or Territory in which the Goods are supplied or the Services are performed, in each case as that legislation applies to a person conducting a business or undertaking that designs, manufactures, imports or supplies plant, substances or structures.
Written or Writing, and any similar expression, includes electronic mail and any other form of written electronic communication, and excludes any communication made solely through an electronic portal operated by the Supplier unless the Company has agreed in Writing to accept notices by that means.

1.2 Interpretation

(a) A reference to a Party includes its executors, administrators, successors and permitted assigns.

(b) Headings are for convenience only and do not affect interpretation.

(d) A reference to a statute, regulation, standard or code includes any modification, re-enactment or replacement of it, and any subordinate instrument made under it.

(e) The singular includes the plural and the plural includes the singular.

(f) A reference to a clause is a reference to a clause of these Conditions.

(g) A reference to a period of days is a reference to calendar days unless Business Days are specified.

(h) A reference to an amount of money is a reference to an amount in Australian dollars (AUD) unless the Order states otherwise.

(i) Where the Supplier gives an indemnity, that indemnity is a continuing obligation independent of the Supplier’s other obligations, survives termination or expiry of the Contract, and it is not necessary for the Company to incur expense or make payment before enforcing it.

(j) Where a right is expressed to be exercisable at the Company’s option, discretion or election, the Company may exercise it in its absolute discretion.

(k) An obligation of the Supplier to do or not do a thing includes an obligation to procure that Supplier Personnel do or do not do that thing.

(l) No rule of construction operates to the disadvantage of a Party because that Party was responsible for preparing these Conditions.

2. Order Formation and Acceptance

(a) Application. These Conditions apply to all purchases of Goods and Services by the Company from the Supplier and govern the Contract to the exclusion of all other terms, including any terms the Supplier purports to apply under any quotation, acknowledgement, order confirmation, delivery note, invoice, packing slip, website, portal, click-wrap or other document or medium.

(b) Order is an offer. Each Order is an offer by the Company to purchase the Goods or Services specified in it on these Conditions, and on no other terms.

(c) Acceptance and lapse of an Order. An Order is accepted, and a Contract formed on these Conditions, on the earlier of: (i) the Supplier issuing Written acceptance of the Order; and (ii) the Supplier commencing performance of the Services, or despatching or delivering any of the Goods. The Supplier may accept or reject an Order in Writing, and is asked to state its reasons for any rejection. An Order lapses and is withdrawn if it is not accepted under clause 2(c)(i) or clause 2(c)(ii) within ten (10) Business Days of receipt, unless the Company confirms otherwise in Writing. Silence alone does not constitute acceptance of an Order and no Contract is formed by the Supplier’s silence. Commencement of performance, despatch or delivery is acceptance of the Order on these Conditions, and forms a Contract on these Conditions, even where the Supplier has issued or issues a quotation, acknowledgement, order confirmation, delivery note, invoice or other document referring to or purporting to apply its own terms; clauses 2(d) and 2(e) apply to any such document. Where the Supplier despatches Goods or commences performance after an Order has lapsed under this clause, no Contract arises unless the Company elects to treat the Order as reinstated, whether in Writing or by accepting delivery, in which case a Contract is formed on these Conditions.

(d) Conflicting terms. Any term proposed by the Supplier that is additional to, different from, or inconsistent with these Conditions is expressly rejected and does not form part of the Contract unless expressly accepted in Writing by an Authorised Officer. Neither the Company’s acceptance of Goods or Services, nor its payment of any invoice, nor its use of any portal or system operated by the Supplier, constitutes assent to any such term. Subject to clause 2(c), any purported acceptance of an Order on different or additional terms is a counter-offer, which the Company rejects. The Company accepts a counter-offer only by Written acceptance signed by an Authorised Officer, and no conduct of the Company constitutes acceptance of a counter-offer on the Supplier’s terms.

(e) Supplier documents of no effect. Any automated acknowledgement of receipt does not constitute acceptance. Any delivery note, invoice, order acknowledgement, packing slip, portal terms or click-wrap agreement issued or presented by the Supplier that contains or refers to the Supplier’s terms is of no effect and is expressly rejected. Where the Supplier gives the Company access to a portal, the Company’s use of that portal does not bind the Company to any terms presented in it.

(f) Variation. No variation of the Contract or these Conditions is binding unless agreed in Writing and signed by an Authorised Officer, and any Change Order is subject to clause 12.

(g) Authority and descriptive matter. No employee, agent or representative of the Company other than an Authorised Officer has authority to make any representation, warranty or statement, or to vary these Conditions, and the Supplier may not rely on any such representation, warranty or statement unless confirmed in Writing by an Authorised Officer. All descriptive matter, drawings, images, weights, dimensions, forecasts and other information provided by the Company are approximate and indicative only, and do not form part of the Contract unless expressly incorporated into the Order. Nothing in this clause excludes, restricts or modifies any liability of a Party for fraud or for conduct that contravenes section 18 of the ACL.

(h) Errors. The Company may correct any manifest typographical, clerical or other error or omission in any Order, acceptance, invoice or other document it has issued, by giving Written notice of the correction to the Supplier promptly on becoming aware of the error. Where the Supplier has, before receiving that notice, reasonably and demonstrably incurred cost in reliance on the uncorrected document, the Company will reimburse that cost to the extent it is direct, documented and unavoidable. Where the correction is notified before the Order is accepted under clause 2(c), the Supplier may within five (5) Business Days of the notice reject the corrected Order in Writing where the correction materially changes the Specification, quantity, Price or delivery date, and the period in clause 2(c) is extended accordingly. Where the correction is notified after the Order has been accepted, and it materially changes the Specification, quantity, Price or delivery date, it takes effect only as a variation dealt with under clause 12(b) as if the Company had directed it as a Change Order, the Supplier is entitled to a fair and reasonable adjustment to the Price and the delivery date, and clause 12(c) does not apply to it. Where the Parties do not agree that adjustment within ten (10) Business Days, either Party may by Written notice cancel the affected part of the Order, and clause 12(e) applies. A correction notified after acceptance that does not materially change any of those matters takes effect on notice.

(i) Cumulative rights and waiver. The Company’s rights and remedies under these Conditions are cumulative and without prejudice to any other right or remedy available to it at law or in equity. No waiver by the Company of any breach is a waiver of any subsequent breach, and any waiver must be in Writing and signed by an Authorised Officer.

(j) Severability. If any provision of these Conditions is held invalid or unenforceable in whole or in part, the validity of the remaining provisions and of the remainder of that provision is unaffected, and clause 24(e) applies.

(k) No commitment beyond the Order. Forecasts, schedules, planning data and indications of future requirements given by the Company are for the Supplier’s planning only, create no commitment to purchase, and do not entitle the Supplier to procure materials or commence work. The Company is bound only as to the quantities and deliverables stated in an Order. Nothing in the Contract grants the Supplier exclusivity or any minimum volume.

3. Price, Taxes and Duties

(a) Firm price. The Price is as stated in the Order and is firm and fixed for the duration of the Contract. The Supplier may not increase the Price to reflect any increase in the cost of labour, materials, energy, components, freight, currency movement, duty, tariff or any other cost of manufacture or supply without the express Written consent of an Authorised Officer.

(b) Inclusive price. The Price is inclusive of everything the Supplier requires to perform the Contract, including all items listed in the definition of Price. The Company is not liable for any handling charge, documentation fee, minimum order value, small order surcharge, fuel surcharge, currency surcharge or other charge of any kind unless it is specifically stated in the Order.

(c) Quotations. Any quotation, proposal, price list or catalogue issued by the Supplier does not constitute an offer capable of acceptance, and the Order is the only governing document as to price. The Company may update or amend its requirements at any time before the Order is accepted under clause 2(c).

(d) Competitive pricing. The Supplier warrants that the Price is no less favourable to the Company than the price the Supplier charges any other customer of comparable volume and specification. If the Supplier offers a lower price for comparable Goods or Services during the term of the Contract, the Supplier must notify the Company, and the lower price applies to every Order not yet accepted and to every subsequent Order and, on the Company’s Written election, to any undelivered part of an Order already accepted. Where the Company so elects in respect of an Order already accepted, the Supplier may within five (5) Business Days of the election, by Written notice, treat the undelivered part of that Order as cancelled, and clause 12(e) applies to it. Nothing in this clause requires the Supplier to disclose, or the Company to receive, information in a manner that would contravene Part IV of the Competition and Consumer Act 2010 (Cth), and no information provided under this clause may identify any competitor of the Company.

(e) GST. The Price and every other amount payable under the Contract are exclusive of GST. Where the Supplier makes a taxable supply under the Contract, the Company will pay, in addition to the Price, an amount equal to the GST payable on that supply, but is not required to pay that amount until the Supplier has given the Company a valid Tax Invoice complying with section 29-70 of the GST Act and containing all particulars required for the Company to claim an input tax credit. Where an adjustment event arises, the Supplier must issue an adjustment note and the difference is refunded or paid accordingly. Where a Party is required to reimburse or indemnify the other for a cost or expense, the amount reimbursed is reduced by any input tax credit to which the other Party or its representative member is entitled. The Company may, where it and the Supplier are both registered for GST, issue recipient created tax invoices and adjustment notes under a written recipient created tax invoice agreement made in accordance with subsection 29-70(3) of the GST Act and the applicable legislative determination, and the Supplier must not issue a tax invoice for a supply covered by that agreement. The Supplier must quote its ABN on every invoice; where it does not, and no exception applies, the Company must withhold from the payment at the rate required by section 12-190 of Schedule 1 to the Taxation Administration Act 1953 (Cth) and that withholding discharges the Company to the extent of the amount withheld. Where the supply is a taxable supply made by a non-resident and the Company is required or entitled to account for GST under Division 83 or Division 84 of the GST Act, the Supplier must not charge GST and must provide the information the Company requires to apply the reverse charge. The Supplier is responsible for all taxes on its own income, property, personnel and operations, and for all withholding obligations arising in its own jurisdiction.

(f) Duties, tariffs and levies. The Price is inclusive of all customs duties, tariffs, anti-dumping and countervailing duties, safeguard measures, import fees, brokerage charges and levies. The Supplier bears the risk of any increase in any such duty, tariff or levy taking effect after the date of the Order and may not pass any such increase to the Company. Where any such duty, tariff or levy is reduced, refunded, remitted or eliminated after the date of the Order, the Supplier must pass the benefit to the Company.

(g) Customs documentation. The Supplier must provide all documentation the Company requires to establish customs valuation under Division 2 of Part VIII of the Customs Act 1901 (Cth), to claim any duty drawback, refund, remission, tariff concession order, preferential rate or free trade agreement benefit under Division 1A of Part VIII of that Act, and to support any valuation methodology the Company adopts, and must cooperate at its own cost with any customs audit, ruling request or inquiry relating to the Goods conducted by the Australian Border Force or any other customs authority.

(h) Currency. All Prices are stated and payable in Australian dollars (AUD) unless the Order states otherwise. The Supplier bears all currency conversion and exchange rate risk, and all bank charges other than those charged by the Company’s own bank.

(i) Substantiation. The Supplier must, on the Company’s Written request, substantiate any charge, cost claim, cancellation claim or Change Order price impact by reference to its records, and must give the Company and its advisers reasonable access to those records for that purpose.

4. Payment and Set-Off

(a) No advance payment. The Company does not pay in advance unless specifically agreed in Writing by an Authorised Officer. Where the Company agrees to pay in advance, the amount paid is held by the Supplier as a debt due to the Company, and is repayable on demand, until the relevant Goods are delivered and Accepted or the relevant Services are performed and Accepted. The Company may require a bank guarantee, standby letter of credit or parent company guarantee as a condition of any advance payment.

(b) Invoices. The Supplier must issue a separate invoice for each Order, after delivery, quoting the Order number, line item references, part numbers, quantities, batch or serial identifiers, delivery reference, its ABN and any other information the Company reasonably requires, and every invoice for a taxable supply must be a valid Tax Invoice. An invoice that does not comply with this clause, or that relates to Goods or Services not delivered in accordance with the Contract, is not correctly rendered and the payment period does not begin to run until a compliant invoice is received.

(c) Payment terms. The Company will pay correctly rendered invoices in full and in cleared funds within sixty (60) days of the end of the month in which the invoice is received. Payment is not conditional on Acceptance. An invoice for Goods delivered, or Services performed, in accordance with the Contract becomes payable under this clause on the later of that delivery or performance and the Company’s receipt of a correctly rendered invoice for it, whether or not the Goods or Services have been Accepted and whether or not the period in clause 8(b) has expired. Where the Supplier is a small business supplier for the purposes of the Payment Times Reporting Act 2020 (Cth), or is a small business within the meaning of section 23 of the ACL, the Company will pay correctly rendered invoices within thirty (30) days of receipt of the invoice, and that period prevails over the period stated in the preceding sentence. For the purpose of identifying a small business supplier under the Payment Times Reporting Act 2020 (Cth), the Company uses the Small Business Identification Tool made available by the Payment Times Reporting Regulator, and the Supplier must give the Company its ABN and any other information that tool requires and must notify the Company in Writing if its status changes; for the purpose of section 23 of the ACL, the Supplier must notify the Company in Writing before accepting an Order if it is a small business within the meaning of that section, and the Company may require reasonable evidence of that status. The thirty (30) day period applies from the date the Company becomes aware of the Supplier’s status. Where the Order states a payment period shorter than the period that would otherwise apply under this clause, the shorter period prevails. Payment of an invoice under this clause is not Acceptance and is not acceptance of the quality of the Goods or Services, as clause 8(c) provides, and does not affect any right of the Company under clause 4(e), clause 4(f), clause 4(i), clause 8, clause 9 or clause 10, including its rights to reject, to require a remedy, and to recover the Price. Where the Company has paid for Goods or Services that are afterwards rejected under clause 8, or in respect of which the Price is refundable under clause 8(e)(iii) or clause 9(d), the amount paid is a debt due from the Supplier to the Company and repayable on demand, and clause 4(e) applies to it.

(d) Method. The Company pays by electronic funds transfer to the bank account notified by the Supplier in Writing, or as otherwise agreed in Writing. The Company may require independent verification of any change to the Supplier’s bank details before making payment, and any delay attributable to that verification is not a breach of the Contract.

(e) Set-off. The Company may set off or deduct from any amount due to the Supplier any sum owed by the Supplier to the Company or to any member of the Group under the Contract or any other agreement between the Supplier and the Company or that member, whether liquidated or unliquidated and whether arising by way of damages, counterclaim, debt, indemnity or otherwise. Before exercising that right the Company must give the Supplier Written notice identifying the amount to be set off, the invoice or payment against which it is to be applied, and the basis of the claim, together with, in the case of an unliquidated amount, a reasonable estimate of it and the calculation supporting that estimate. The Company may set off an unliquidated amount only where it has a bona fide claim assessed in good faith on reasonable grounds, and must promptly repay any amount set off that is subsequently determined or agreed not to have been owing, together with simple interest on that amount from the date it was set off until repayment at the rate stated in clause 4(g). The Supplier may not set off, deduct, withhold or apply any amount against any sum owing to the Company.

(f) Disputed amounts. Time for payment is not of the essence. The Company may withhold payment of any disputed amount, and of any amount subject to a potential set-off, counterclaim or indemnity claim, until the dispute is resolved, provided that it gives the Supplier Written notice of the amount withheld and the grounds for withholding it, and pays the undisputed balance of the invoice by the due date. The Company may withhold an amount under this clause only where it disputes that amount, or holds the claim to which the amount relates, bona fide and on reasonable grounds. Interest does not accrue on an amount properly withheld under this clause while it is withheld; but where an amount withheld under this clause, or withheld under clause 13(c) or clause 19(i), is subsequently determined or agreed to have been payable, the Company must pay it promptly and, despite clause 4(g), simple interest accrues on it at the rate stated in clause 4(g) from the date it would otherwise have fallen due until payment.

(g) Interest. Where the Company fails to pay by the due date an amount that is properly due and that is not withheld under clause 4(f) or set off under clause 4(e), simple interest accrues on the unpaid amount from the due date until payment at the rate of four percent (4%) per annum above the cash rate target published by the Reserve Bank of Australia from time to time. That interest is the Supplier’s sole contractual entitlement in respect of late payment, and the Supplier is not entitled to charge or claim any penalty interest, late payment fee, debt recovery charge or interest at any higher rate. Nothing in this clause limits any interest a court or tribunal of competent jurisdiction awards under section 58 of the Civil Proceedings Act 2011 (Qld) or section 51A of the Federal Court of Australia Act 1976 (Cth), and interest paid under this clause is credited against any such award for the same period.

(h) No suspension for disputed payment. The Supplier may not suspend, delay, reduce or terminate the supply of Goods or Services, exercise any lien or stoppage in transit, or withhold any documentation, tooling, data or Intellectual Property Rights, on account of any amount that the Company has withheld under clause 4(f) or set off under clause 4(e).

(i) Company’s payment-related rights. Without limiting any other right, the Company may: (i) withhold payment of any disputed part of an invoice, and of any invoice for Goods or Services not delivered or performed in accordance with the Contract; (ii) set off any liability of the Supplier to the Company, including delay charges, Removal Costs and the cost of replacement goods, against any invoice; and (iii) exercise its rights under clause 7(f) and clause 13 where the Supplier fails to deliver in accordance with the agreed schedule.

(j) Assignment of receivables. The Supplier may not assign, factor, discount, securitise, charge or otherwise deal with any receivable owing to it under the Contract without the Company’s prior Written consent, and, except as clause 4(j)(i) permits, the Company is not obliged to pay any Person other than the Supplier. However:

(i) Permitted financing. The Supplier may assign, factor, discount or charge a receivable owing to it under the Contract to a financier that is an authorised deposit-taking institution within the meaning of the Banking Act 1959 (Cth), or a body regulated by the Australian Prudential Regulation Authority, or an entity that holds an Australian financial services licence, without the Company’s consent, provided that the Supplier gives the Company not less than ten (10) Business Days’ prior Written notice identifying the financier, the receivables assigned and the account to which payment is to be made, and provided that the assignment does not increase the Company’s cost or administrative burden of payment. The Company’s rights against the Supplier, including its rights of set-off, deduction and withholding under clauses 4(e), 4(f) and 4(i), and every defence and counterclaim available to it, continue to apply against the financier as they applied against the Supplier immediately before the assignment, and payment by the Company to the notified account discharges the Company to the extent of that payment. The Company may require independent verification of the financier’s account details under clause 4(d) before making payment.

(ii) Other dealings. The Supplier acknowledges that section 81 of the PPSA may render a term prohibiting or restricting the transfer of an account ineffective as against a transferee; that section does not relieve the Supplier of its obligation to the Company under this clause, any dealing in breach of this clause is a material breach of the Contract, and the Supplier indemnifies the Company against all loss, cost and expense arising from any such dealing, including the cost of determining the Person entitled to payment.

(k) Security of payment legislation. Where any work performed under an Order is construction work to which security of payment legislation applies, that legislation prevails over clauses 4(c) to 4(h) to the extent of any inconsistency.

5. Specification, Tolerances and Quality

(a) Conformity. The Goods and Services must conform in all respects to the Specification, to any sample or pre-production approval given by the Company, and to all applicable standards identified in the Order.

(b) Company-directed amendment. The Company may by Written notice require the Supplier to amend the Specification where the amendment is required to comply with any applicable safety or statutory requirement, or where the amendment does not materially affect the quality, cost or fitness for purpose of the Goods. Where the Supplier reasonably considers that an amendment directed under this clause will increase its cost or affect the delivery date, it must notify the Company in Writing, with substantiation, within five (5) Business Days of the direction; clause 12(b) then applies to the amendment as if it were a Change Order, and the Supplier is entitled to a fair and reasonable adjustment to the Price and the delivery date. Where the Parties do not agree that adjustment within ten (10) Business Days, either Party may by Written notice cancel the affected part of the Order, and clause 12(e) applies. Apart from that adjustment, the Company has no liability to the Supplier for any loss arising in connection with such an amendment.

(c) No unilateral change. The Supplier must not, without the Company’s prior Written consent: (i) change the design, materials, components, formulation, firmware or software of the Goods; (ii) change any manufacturing process, test method or quality control procedure; (iii) change the place of manufacture, assembly, test or final inspection; (iv) change any sub-tier supplier of a critical component; or (v) discontinue or supersede any Goods. The Supplier must give the Company not less than twelve (12) months’ Written notice before discontinuing any Goods, and must offer the Company a final purchase opportunity and continued supply of spares for not less than five (5) years after the last delivery, on the terms in clause 5(j).

(d) Length tolerance. Unless the Order states otherwise, cable must be supplied within a length tolerance of −0% to +2% of the ordered length. The Supplier must invoice on the actual length supplied and may not invoice for any length exceeding the stated tolerance without the Company’s prior Written consent. Any length supplied in excess of the tolerance is supplied at the Supplier’s risk and cost.

(e) Length marking and Australian standards. Cable must be sequentially length-marked in accordance with the standard specified in the Order, and marked lengths must be accurate within the tolerance in clause 5(d). Where the Order does not specify a standard, cable must be sequentially length-marked, sheath-marked and identified in accordance with the applicable Australian Standard, and the Goods must satisfy every applicable Australian telecommunications, cabling and electrical standard, including as relevant: AS/NZS 60794 (optical fiber cables); AS/NZS 1125 (conductors in insulated electric cables and flexible cords, including marking and identification); AS/NZS ISO/IEC 11801 and AS/NZS 3080 (generic telecommunications cabling); AS/NZS 3084 (telecommunications pathways and spaces); AS/NZS ISO/IEC 14763.3 (testing of optical fiber cabling); AS/NZS 3000 (Wiring Rules) where the Goods form part of an electrical installation; AS/CA S008 and AS/CA S009 (requirements for customer cabling and the customer cabling Wiring Rules); the ACMA Telecommunications Cabling Provider Rules 2014; the Telecommunications (Labelling Notice for Customer Equipment and Customer Cabling) Instrument 2015; and AS/NZS 4417.1 and AS/NZS 4417.2 in respect of the Regulatory Compliance Mark. Where the Goods are supplied for a network operated under the Telecommunications Act 1997 (Cth), they must additionally satisfy the network operator’s published cable specification identified in the Order.

(f) Quality system. The Supplier must maintain a documented quality management system appropriate to the Goods and Services, certified to AS/NZS ISO 9001 or an equivalent standard where the Order requires it, must operate documented incoming inspection, in-process control, final inspection and calibration procedures, and must notify the Company promptly of any loss, suspension or material adverse change to any certification held.

(g) Inspection and audit access. The Supplier must, on reasonable notice, give the Company, its Customers, its advisers and any regulator access to any premises at which the Goods are manufactured, tested, stored or handled, and to the relevant personnel, records, processes and quality data, for the purpose of inspecting, testing, auditing or verifying compliance with the Contract. The Supplier must procure equivalent access rights in respect of its sub-tier suppliers. No inspection, audit, test, approval or failure to exercise any of those rights relieves the Supplier of any obligation or limits any right of the Company.

(h) Testing and certification. The Supplier must carry out the tests required by the Specification and by good industry practice, and must supply with each delivery the test results, factory acceptance test records, certificates of conformity and calibration records required by the Order. Where the Order requires first article inspection or pre-production sample approval, the Supplier must not commence production until the Company has given Written approval, and that approval does not constitute Acceptance or relieve the Supplier of any warranty obligation.

(i) Records. The Supplier must retain all production, test, inspection, traceability, quality and sub-tier records relating to the Goods for not less than ten (10) years after the last delivery, and must provide copies to the Company on request within five (5) Business Days.

(j) Spares pricing and lead time. Spares supplied during the five (5) year period referred to in clause 5(c) must be supplied on these Conditions and, unless the Order or a separate written agreement states otherwise: (i) at a price no greater than the price last charged to the Company for the same item, increased by no more than the cumulative increase in the Consumer Price Index (All Groups, weighted average of eight capital cities) published by the Australian Bureau of Statistics between the date of the Order under which that price was charged and the date of the spares order; and (ii) with a lead time no greater than the lead time last quoted for the same item or, where no lead time was quoted, no greater than twelve (12) weeks from the date of the spares order. Where the Supplier is unable to meet that lead time, or requires a price above that cap, it must notify the Company in Writing with substantiation, and, at the Company’s option and at the Supplier’s cost, must provide the Company or its nominee with the drawings, specifications, tooling, sub-tier supplier details and a royalty-free, sublicensable licence sufficient to have that spare manufactured by a third party for supply to the Company, the Group and its Customers.

6. Packaging, Labelling and Documentation

(a) Packaging. The Goods must be packed, protected, palletised, reeled or drummed so as to reach the Delivery Point undamaged and in good condition, to withstand the anticipated mode and duration of transport, handling and storage, and to permit safe mechanical handling. Packaging must comply with the Order and with all applicable transport, quarantine, biosecurity, timber treatment and packaging waste requirements, including: the Biosecurity Act 2015 (Cth) and the Biosecurity Regulation 2016 (Cth), and the import conditions published by the Department of Agriculture, Fisheries and Forestry through the Biosecurity Import Conditions system (BICON); the Department’s requirements for wood packaging material, under which all timber packaging, dunnage, pallets and bracing must be treated and marked in accordance with ISPM 15 or otherwise as those requirements permit, and must be declared in a packing declaration accompanying the consignment; and the Australian Packaging Covenant administered by the Australian Packaging Covenant Organisation, the National Environment Protection (Used Packaging Materials) Measure 2011, the Recycling and Waste Reduction Act 2020 (Cth), the Waste Reduction and Recycling Act 2011 (Qld) and the Environmental Protection Act 1994 (Qld). The Supplier must provide the packaging composition and weight data the Company requires to meet its own reporting obligations under any packaging or product stewardship scheme.

(b) Reels, drums and returnable packaging. Reels, drums, pallets and other packaging are included in the Price and become the property of the Company on delivery, unless the Order identifies them as returnable and states the return terms and any credit. The Company is not liable for any reel, drum or pallet deposit, hire, demurrage or non-return charge unless it is stated in the Order.

(c) Labelling and marking. Each package, reel, drum and unit must be legibly and durably marked with the Order number, the Company’s part number, the Supplier’s part number, the description, the quantity or length, the batch, lot, reel or serial identifier, the date of manufacture, the country of origin, and all handling, storage, lifting and safety markings required by the Order or by law, including any trade description required by the Commerce (Trade Descriptions) Act 1905 (Cth) and the Commerce (Imports) Regulations 1940.

(d) Documentation. Each delivery must be accompanied by a packing note quoting the Order number and identifying the contents by line item, and by all certificates of conformity, test results, calibration records, installation and maintenance instructions, warranty documentation, safety data sheets, declarations of conformity, origin declarations and regulatory markings required by the Order or by law. Where any document is required to be supplied to a Customer with the Goods, the Supplier must supply it in a form suitable for onward supply.

(e) Dangerous goods. Where any Goods are classified as dangerous, hazardous or restricted for transport, the Supplier must classify, pack, mark, label, document and declare them in accordance with all applicable transport regulations and must notify the Company in Writing before despatch. Those regulations include: the Australian Code for the Transport of Dangerous Goods by Road and Rail (ADG Code), given effect in Queensland by the Transport Operations (Road Use Management) Act 1995 (Qld) and the Transport Operations (Road Use Management—Dangerous Goods) Regulation 2018 (Qld) and by the corresponding legislation of other States and Territories; the International Maritime Dangerous Goods Code, given effect by the Navigation Act 2012 (Cth) and Marine Order 41; the ICAO Technical Instructions and the IATA Dangerous Goods Regulations, given effect by the Civil Aviation Act 1988 (Cth) and Part 92 of the Civil Aviation Safety Regulations 1998; the Dangerous Goods Safety Management Act 2001 (Qld) in respect of storage and handling; and, for classification, labelling and safety data sheets, Chapter 7 of the Work Health and Safety Regulation 2011 (Qld) applying the Globally Harmonized System of Classification and Labelling of Chemicals (GHS Revision 7), together with the Industrial Chemicals Act 2019 (Cth) and the requirements of the Australian Industrial Chemicals Introduction Scheme.

(f) Discrepancies. Any discrepancy between the Goods delivered and the packing note, or between either of them and the Order, must be rectified by the Supplier at its own cost immediately upon notification by the Company.

(g) Non-conforming packaging. Failure to comply with this clause 6 is a failure of the delivery to conform to the Contract, and the Company may reject the delivery under clause 8, or require the Supplier to re-pack, re-label or re-document at the Supplier’s cost, and may recover from the Supplier all costs it incurs in doing so itself, including any biosecurity treatment, fumigation, re-export, destruction or holding cost imposed by the Department of Agriculture, Fisheries and Forestry or the Australian Border Force.

7. Delivery, Title and Risk

(a) Time of the essence. The Supplier must deliver the Goods and perform the Services on the date or within the period stated in the Order. Time of delivery and of performance is of the essence.

(b) Delivery basis. Unless the Order states otherwise: (i) cross-border shipments into Australia are supplied Delivered Duty Paid (DDP) (Incoterms 2020) at the Delivery Point, with the Supplier responsible for export clearance, carriage, insurance, import clearance, customs duty, unloading and delivery to the Delivery Point; and (ii) domestic shipments within Australia are supplied Delivered at Place Unloaded (DPU) (Incoterms 2020) at the Delivery Point (also expressed in Australian practice as delivered free into store), with all costs and risk to and including unloading at the Delivery Point borne by the Supplier. Incoterms 2020 applies to domestic as well as international supplies, and the named place is in every case the Delivery Point stated in the Order. Where the Supplier is not able to act as importer of record in Australia, it must appoint a licensed customs broker to do so on its behalf; where it cannot do either, the Order is instead performed Delivered at Place (DAP) (Incoterms 2020) at the Delivery Point, the Company acts as importer of record, and the Supplier must reimburse the Company all customs duty, brokerage and clearance costs, the Price remaining inclusive of them. GST on a taxable importation is accounted for by the Company as the entity entering the Goods for home consumption where the Company is the importer for GST purposes, including under the deferred GST scheme, and the Supplier must provide the commercial documentation, valuation data and tariff classification information the Company requires for that purpose.

(c) Delivery arrangements. Delivery must be made to the Delivery Point during the Company’s stated receiving hours, in accordance with any booking, appointment, access or safety requirement notified by the Company for receiving deliveries at that location. Delivery outside those arrangements may be refused at the Supplier’s cost and risk.

(d) Quantity and timing. The Supplier must not deliver early, late, short or in excess without the Company’s prior Written consent. Goods delivered early may be refused, or accepted and stored at the Supplier’s risk and cost with payment falling due as if delivered on the due date. Goods delivered in excess of the ordered quantity may be returned at the Supplier’s risk and cost, and the Company is not obliged to pay for them.

(e) Instalments. The Company may require delivery by instalments. Each instalment is nevertheless part of a single Contract, and failure by the Supplier to deliver any one instalment in accordance with the Contract entitles the Company to terminate the whole Contract. Section 32 of the Sale of Goods Act 1896 (Qld) does not apply to the extent it is inconsistent with this clause.

(f) Late delivery. If the Supplier fails to deliver by the due date, then without limiting any other right the Company may: (i) terminate the affected Order, or the affected part of it, immediately by Written notice given before delivery of the Goods, or performance of the Services, to which that notice relates, and clause 13(b)(ii) applies where the Company seeks to terminate any other Order; (ii) recover from the Supplier the costs and expenses of obtaining replacement goods or services of similar description and quality, including any excess over the Price, expedited freight and internal costs; and (iii) recover any loss it suffers under any contract with a Customer as a result of the delay. Where the Order states a delay charge, that charge is payable for each week or part week of delay, up to the cap stated in the Order; where the Order does not state a rate or a cap, the delay charge is zero point five percent (0.5%) of the Price of the delayed Goods or Services for each week or part week of delay, capped at ten percent (10%) of that Price. Any delay charge paid is credited against, and does not limit, the Company’s damages for the same delay. The Parties acknowledge that the Company has a legitimate interest in timely delivery because it holds the Goods for onward supply to Customers under contracts containing its own delivery commitments, that the rate and cap in this clause were fixed by reference to the loss the Company would be likely to suffer under those contracts and to the cost of expediting substitute supply, and that they are not out of all proportion to that interest.

(g) Title and risk. Title to and risk of loss of or damage to the Goods pass to the Company on completion of delivery at the Delivery Point, or, where the Company has paid in advance, on the earlier of delivery and the time of payment for identified or appropriated Goods. Passing of title and risk does not constitute Acceptance.

(h) No supplier security interest (PPSA). To the fullest extent permitted by law: (i) neither these Conditions nor any Contract creates or gives rise to any Security Interest, retention of title, purchase money security interest within the meaning of section 14 of the PPSA, lien, charge or other encumbrance in favour of the Supplier over the Goods, over any proceeds of the Goods, or over any other property of the Company; (ii) the Supplier must not register, file, lodge or maintain any registration, financing statement, financing change statement, notice or caveat in respect of any such interest against the Company on the PPS Register or on any other register, and any such registration made is unauthorised, is made without the belief on reasonable grounds required by section 151 of the PPSA, and must be discharged immediately on demand; (iii) the Supplier waives, to the maximum extent permitted by section 157(3) of the PPSA, its right to receive a verification statement in respect of any registration, and waives to the maximum extent permitted any right to receive any other notice under the PPSA, including under sections 95, 118, 121(4), 130, 132(3)(d), 132(4) and 135; and (iv) the Supplier must at its own cost promptly do anything the Company reasonably requires, including executing documents, giving information and filing discharges, to ensure that any such interest is unenforceable, is subordinated to the interests of the Company and its financiers, or is removed from the PPS Register. Where an unauthorised registration is made, the Company may give an amendment demand under section 178 of the PPSA, apply to the Registrar under section 180 of the PPSA and apply to a court under section 182 of the PPSA, and the Supplier must reimburse the Company’s costs of doing so. For the purposes of section 275(6)(a) of the PPSA, the Parties agree that neither will disclose information of the kind mentioned in section 275(1) of the PPSA, and the Supplier must not give an authorisation under section 275(7)(c) of the PPSA without the Company’s prior Written consent. Where the Contract gives rise to a Security Interest, a PPS lease or a commercial consignment in favour of the Company, including in respect of Goods held under clause 7(i) and property supplied under clause 7(k), the Supplier acknowledges that these Conditions constitute a security agreement for the purposes of section 20 of the PPSA, consents to the Company registering a financing statement on the PPS Register in the collateral class or classes the Company considers appropriate, and must give the Company on request its exact legal name as it appears in its certificate of registration, its ACN, ABN and ARBN (as applicable), and, where it contracts as trustee of a trust, the full name and ABN of that trust.

(i) Goods held before delivery. Where the Company has paid for or acquired title to Goods that remain in the Supplier’s possession, the Supplier holds them as bailee for the Company and must: (i) store them separately from all other goods so that they remain readily identifiable as the Company’s property; (ii) not remove, deface or obscure any identifying mark or packaging; (iii) maintain them in good condition and keep them insured against all risks for their full replacement value with the Company’s interest noted; (iv) not create or permit any encumbrance over them; and (v) notify the Company immediately if the Supplier becomes subject to an Insolvency Event.

(j) Recovery. If before delivery the Supplier becomes subject to an Insolvency Event, the Supplier’s right to deal with any Goods to which the Company has title ceases immediately, and the Company may require the Supplier to deliver them up and, failing prompt delivery up, may enter any premises of the Supplier or of any third party where they are stored in order to recover them. The Supplier must procure the consent of any third party occupier to that entry. Where the Supplier is under administration, the Company acknowledges that the exercise of this right may require the administrator’s written consent or the leave of the Court under section 440B of the Corporations Act, and clause 13(h) applies.

(k) Free issue materials and tooling. All materials, components, tooling, jigs, fixtures, patterns, dies, moulds, test equipment, drawings, software and data supplied by the Company to the Supplier, and all tooling paid for by the Company whether separately or as part of the Price, are and remain the property of the Company. The Supplier must hold them as bailee, keep them separately identified and marked as the Company’s property, use them only for the Contract, keep them insured and in good repair at its own cost, not encumber them, and deliver them up on demand and on termination or expiry of the Contract. The Supplier must not permit any of that property to become an accession to, or to be commingled or processed with, other goods, or to be affixed to land, without the Company’s prior Written consent, and clause 7(h) applies to any Security Interest of the Company in it.

(l) Deferred delivery. The Company may, by Written notice given not less than five (5) Business Days before the due delivery date, defer delivery of any Goods by up to ninety (90) days in aggregate for any Order, subject to the combined ninety (90) day limit on deferral and suspension stated in clause 12(g). Where it does so, the Supplier must store the Goods safely, separately and insured, and the Company will reimburse the Supplier’s reasonable and documented direct storage, insurance and preservation costs for the period of deferral beyond thirty (30) days. Payment for the deferred Goods falls due as if they had been delivered on the original due date. Where a deferral exceeds sixty (60) days, the Supplier may by Written notice require the Company either to take delivery within twenty (20) Business Days or to treat the affected part of the Order as cancelled under clause 12(d), and clause 12(e) then applies.

8. Inspection, Acceptance and Rejection

(a) Inspection before delivery. The Company may inspect and test the Goods at any stage of manufacture and before despatch in accordance with clause 5(g), and may require the Supplier to remedy any non-conformity identified before despatch at the Supplier’s cost.

(b) Inspection after delivery. The Company has thirty (30) days to inspect the Goods and notify the Supplier of any rejection. That period runs from delivery or, where the Order provides for Acceptance testing, from completion of that testing; but where the Order provides for Acceptance testing the period begins in any event no later than sixty (60) days after delivery, that outer date being extended by any period during which the Company is unable to commence or complete the testing because the Supplier has not supplied the Goods, the documentation, the test data or the assistance the Contract requires. The Company is under no obligation to inspect or test the Goods, and no inspection, test, or failure to inspect or test, limits any right of the Company under clause 9 or otherwise, except that a failure to carry out Acceptance testing does not postpone the beginning of the period in this clause beyond the outer date stated above.

(c) Acceptance. Goods and Services are Accepted only when the Company gives Written notice of Acceptance or the period in clause 8(b) expires without rejection. Signature of a delivery document, unloading, handling, storage, processing, resupply, payment of any invoice, or the passing of title or risk does not constitute Acceptance or acceptance of the quality of the Goods. For the purposes of section 35 of the Sale of Goods Act 1896 (Qld), the Parties agree that the Company is not deemed to have accepted the Goods, and that a reasonable time for the purposes of that section does not expire, before the end of the period in clause 8(b) or, in the case of a Defect not reasonably discoverable on inspection, before the end of the Warranty Period.

(d) Rejection. The Company may reject any Goods or Services that do not conform to the Contract or to the warranties in clause 9(a), whether or not the non-conformity is material, and may reject the whole of a delivery, any commercial unit, or any part of a delivery. Rejection may be made at any time during the period in clause 8(b) or, in the case of a Defect not reasonably discoverable on inspection, at any time during the Warranty Period.

(e) Consequences of rejection. If the Company rejects any Goods or Services, the Supplier must, at the Company’s option and at the Supplier’s sole expense including all carriage, insurance, duty and disposal costs, promptly: (i) replace the rejected Goods with conforming Goods; (ii) repair or re-perform to the Company’s satisfaction; or (iii) refund the Price of the rejected Goods or Services in full. Rejected Goods are held at the Supplier’s risk from the moment of rejection.

(f) Return authorisation. The Supplier must issue a return authorisation reference immediately on notification of rejection, but the Company’s right to reject and to a remedy is not contingent on the issue of that reference and is not affected by any delay in issuing it.

(g) No return or restocking policies. The Company does not accept any “no return”, “no cancellation”, “non-returnable”, “non-cancellable” or “restocking fee” policy of the Supplier unless it is expressly agreed in Writing and stated in the Order. The Company is not liable for any handling fee, restocking charge, inspection fee or administrative cost associated with the return of Defective or non-conforming Goods.

(h) Uncollected rejected Goods. If the Supplier fails to collect or accept the return of rejected Goods within fourteen (14) days of notification, the Company may store them at the Supplier’s risk and charge for storage, or dispose of or destroy them at the Supplier’s expense. Any cost of storage or disposal is a debt due from the Supplier to the Company.

(i) Statutory remedies preserved. The remedies in this clause 8 are in addition to, and not in substitution for, any right of the Company to reject Goods, to require conforming performance, to obtain substitute goods and recover the cost of doing so, or to obtain any other remedy available to a buyer at law or in equity. The rights of a buyer of goods in Queensland are governed by the Sale of Goods Act 1896 (Qld) and, where the Company is a consumer for the purposes of section 3 of the ACL, by Part 3-2 Division 1 and Part 5-4 of the ACL. The Company preserves, and does not negative or vary by agreement, the conditions and warranties implied by sections 15, 16, 17 and 18 of the Sale of Goods Act 1896 (Qld) (title, correspondence with description, merchantable quality, fitness for purpose and sale by sample), its right of examination under section 34 of that Act, its rights on rejection under sections 35 and 36 of that Act, and its remedies under sections 52, 53 and 54 of that Act; each of them applies to the Contract for the Company’s benefit. Where the Company is a consumer, the rejection period under section 262 of the ACL and the remedies under sections 259 to 266 and section 271 of the ACL apply and are not shortened or restricted by this clause. No limitation of remedy, exclusive remedy provision, or time bar stated by the Supplier applies to the Contract.

(j) Sorting and screening. Where a delivery contains both conforming and non-conforming Goods, the Company may reject the whole delivery, or may sort, screen, test or rework the delivery, and the Supplier must reimburse the Company’s reasonable costs of doing so.

9. Supplier Warranties

(a) Warranties. The Supplier represents and warrants that the Goods and Services will, on delivery and throughout the Warranty Period: (i) conform to the Specification; (ii) be free from defects in design, material and workmanship; (iii) be new, unused, genuine, of current manufacture, and not refurbished, remanufactured, reclaimed, grey market or counterfeit; (iv) be of satisfactory, acceptable and merchantable quality and fit for the purpose stated in the Order and for any purpose the Company has made known to the Supplier; (v) comply with clauses 5, 6 and 17 and with all applicable laws, standards, regulations and codes in the country of manufacture, the country of delivery and any country the Supplier knows or ought reasonably to know the Goods are destined for, including all applicable Australian Standards and the regimes named in clause 17(j); (vi) be free from any encumbrance and from any Security Interest, and be supplied with full and unencumbered title; (vii) not infringe the Intellectual Property Rights of any Person; (viii) be safe, and be supplied with all warnings, instructions and safety information required for their safe transport, storage, installation, use, maintenance and disposal; (ix) be capable of being resupplied by the Company to a Customer without further work, certification or modification; (x) where the Goods contain software or firmware, be free from malicious code, undocumented access mechanisms and undisclosed telemetry, and be supplied with the rights described in clause 16(e); and (xi) in the case of Services, be performed with the degree of skill, care and diligence expected of a suitably qualified and experienced provider of services of that kind, by appropriately qualified, trained, licensed and supervised Supplier Personnel holding every licence, registration and accreditation required by law for the performance of those Services, and in compliance with the WHS Legislation.

(b) Warranty Period. The Warranty Period for any Goods is the period expiring on the later of: (i) twelve (12) months from Customer Delivery of those Goods; and (ii) twenty-four (24) months from delivery of those Goods to the Company, but expiring no later than forty-eight (48) months from delivery of those Goods to the Company, except that where Customer Delivery of those Goods occurs after the thirty-sixth (36th) month from delivery of those Goods to the Company, the Warranty Period expires twelve (12) months after Customer Delivery. The Warranty Period for any Goods expires in every case no later than seventy-two (72) months from delivery of those Goods to the Company, and that outer limit applies despite the exception stated in the preceding sentence. The Warranty Period for Services is twelve (12) months from completion of the Services, or, where the Services relate to Goods, the Warranty Period for those Goods, whichever is longer. This clause does not limit any right or remedy of the Company arising otherwise than under this clause 9, including under clause 8, clause 11 or the ACL. In particular, the product liability indemnity in clause 11(g) is expressly not limited by the Warranty Period, and it, and not this clause, carries the Company’s long-tail exposure, including in respect of an action under Part 3-5 of the ACL that may be commenced up to ten (10) years after the time of supply by the manufacturer.

(c) Back-to-back cover. The Parties acknowledge that the Company resupplies the Goods and gives its own Customers a warranty of twelve (12) months from Customer Delivery. The Warranty Period in clause 9(b) is intended to cover the Company’s onward warranty obligation in full for the period the Goods are held in the Company’s inventory before Customer Delivery. The Supplier may not refuse a claim on the ground that its own standard warranty period, or the warranty period of any manufacturer or sub-tier supplier, has expired, provided the claim is made within the Warranty Period.

(d) Claims. Where the Company gives Written notice to the Supplier during the Warranty Period, within a reasonable time of discovery, that Goods or Services do not comply with clause 9(a), and gives the Supplier a reasonable opportunity to examine them, the Supplier must at the Company’s option repair, replace or re-perform free of charge, or refund the Price in full, in each case within the period stated in clause 10(c). Where the Company returns Goods for that purpose, it does so at the Supplier’s cost and risk.

(e) Exclusions. The Supplier remains liable for a failure to comply with clause 9(a) except where: (i) the Defect arises solely because the Company failed to follow the Supplier’s written instructions as to storage, commissioning, installation, use or maintenance; (ii) the Company altered or repaired the Goods without the Supplier’s Written consent, and the Defect arises solely from that alteration or repair; or (iii) the Defect arises solely from fair wear and tear or wilful damage caused by the Company. This clause does not limit any guarantee, right or remedy of the Company under the ACL or any other law that cannot lawfully be excluded, restricted or modified.

(f) Pass-through of third party warranties. The Supplier assigns to the Company the benefit of every warranty, guarantee and indemnity it receives from any manufacturer or sub-tier supplier in respect of the Goods, and where any such benefit is not assignable, the Supplier must at the Company’s request and at the Supplier’s cost pursue the claim on the Company’s behalf and account to the Company for the proceeds. The Supplier must procure that every such warranty is expressed to be for the benefit of the Company and its Customers where it is able to do so.

(g) Survival. The Supplier’s warranties survive inspection, testing, Acceptance, payment, resupply and use of the Goods.

(h) Repaired and replacement Goods. These Conditions continue to apply to any repaired or replacement Goods or re-performed Services, and a new Warranty Period determined under clause 9(b) begins in respect of them on delivery or completion.

(i) Statutory rights preserved — Australian Consumer Law. The warranties in this clause 9 are in addition to, and do not limit, any condition, warranty, guarantee, right or remedy available to the Company at law. Nothing in the Contract excludes, restricts or modifies any statutory guarantee, condition, warranty or right that cannot lawfully be excluded, restricted or modified. The Company relies principally on the express warranties given in this clause 9 and on the indemnities given under the Contract, in particular those in clauses 11(g), 16(h), 17(m), 18(k) and 20, each of which is a contractual right that applies regardless of whether the Company is a consumer within the meaning of section 3 of the ACL. Paragraphs (i) and (ii) below apply to the extent, and only to the extent, that the Company is a consumer within the meaning of section 3 of the ACL in respect of a particular supply, and neither Party makes any representation that the Company is or is not a consumer in respect of any supply; paragraph (iii) records the statutory exception that determines whether it is; and paragraphs (iv), (v) and (vi) apply in every case. In Australia:

(i) the consumer guarantees in Part 3-2 Division 1 of the ACL apply to a supply where the Company is a consumer within the meaning of section 3 of the ACL, which, subject to subsection 3(2) of the ACL, includes every acquisition of Goods or Services where the amount paid or payable does not exceed AUD 100,000, regardless of the nature of the Goods or Services or of the Company’s business character, and every acquisition of Goods or Services of a kind ordinarily acquired for personal, domestic or household use or consumption;

(ii) the Company therefore has, in respect of those supplies and to the extent it is a consumer in respect of them, the benefit of the guarantees in sections 51 to 59 of the ACL as to title, undisturbed possession, undisclosed securities, acceptable quality, fitness for a disclosed purpose, correspondence with description and sample, availability of repairs and spare parts and compliance with express warranties, and of the guarantees in sections 60 to 63 of the ACL as to due care and skill, fitness for purpose and reasonable time for supply, together with the remedies in Part 5-4 of the ACL against the Supplier and, under section 271 of the ACL, against the manufacturer;

(iii) the exception in subsection 3(2) of the ACL is acknowledged: the Company is not a consumer in respect of Goods acquired for the purpose of re-supply, or for the purpose of using them up or transforming them in trade or commerce in the course of a process of production or manufacture or of repairing or treating other goods or fixtures on land. That exception operates as a matter of law by reference to the purpose for which the Goods were in fact acquired, and not by reference to any statement in the Order. The Company acquires Goods for resupply to Customers in many cases, and its rights in those cases rest on this clause 9, on clause 8, on clause 11(g) and on the other indemnities given under the Contract, and not on the consumer guarantee regime;

(iv) any term of any document of the Supplier that purports to exclude, restrict or modify the application of the ACL, the exercise of a right conferred by it, or any liability under it, is void under section 64 of the ACL and does not apply to the Contract;

(v) the Supplier covenants that it will not include in the Contract, or in any document issued in connection with it, any term limiting its liability for failure to comply with a consumer guarantee to replacement, repair, resupply or payment of the cost of any of them, and warrants that no such term is contained in any document it has issued or relies on. No such limitation forms part of the Contract, and clause 2(d) and clause 9(j) apply to any such term the Supplier purports to assert. Whether it would be fair or reasonable for the Supplier to rely on a limitation of the kind contemplated by section 64A of the ACL is a matter for determination under subsection 64A(4) of the ACL, and nothing in this clause purports to determine it; the Supplier acknowledges that the Company acquires the Goods for resupply to Customers, cannot inspect for latent defects before resupply, and has priced the Contract on the basis of the allocation of risk in these Conditions; and

(vi) nothing in the Contract affects the statutory indemnity available to the Company under section 274 of the ACL against a manufacturer, or any right of the Company under Part 3-5 of the ACL, and clause 11(g) applies in addition to and not in substitution for those rights.

(j) No supplier limitation. Any limitation of remedy, exclusive remedy, disclaimer of implied terms, warranty period limitation, notice period or time bar stated by the Supplier in any document is of no effect and does not apply to the Contract.

(k) Repair and replacement work. Where the Supplier carries out repair, refurbishment or replacement work on Goods, whether under clause 9(d), clause 10 or otherwise, the Supplier warrants that work and all replacement parts for twelve (12) months from completion, and in these Conditions the term “Goods” includes that work and those parts.

10. Remedies, Rework and Repair

(a) Cumulative. The remedies in this clause 10 are in addition to, and not in substitution for, every other right and remedy of the Company under the Contract or at law or in equity, including under the ACL and the Sale of Goods Act 1896 (Qld).

(b) Company’s election. Where the Goods or Services are Defective, the Company may elect between repair, replacement, re-performance, refund, price reduction, rejection under clause 8, and damages, and may change its election if the remedy first elected is not completed within the period in clause 10(c).

(c) Time for remedy. The Supplier must complete the elected remedy within thirty (30) days of the Company’s notice, or within any shorter period the Order or the urgency of the Customer’s requirement reasonably demands and the Company notifies, being in no case less than five (5) Business Days unless the Supplier agrees in Writing to a shorter period. If the Supplier fails to do so, the Company may, without further notice, carry out the remedy itself or procure a third party to do so, and the Supplier must reimburse all costs the Company incurs, including Removal Costs.

(d) Removal Costs. The Supplier is liable for Removal Costs arising from any Defect or Recall, whether the Goods are in the Company’s inventory, in transit, or installed at a Customer’s site.

(e) Systemic and epidemic Defects. Where the same or a similar Defect is found in three percent (3%) or more of any batch, lot or delivery, or where the Company reasonably concludes, on the basis of the test, failure, production or traceability data available to it, that a Defect arises from a common cause in design, material, process or sub-tier supply, the whole of the affected batch, lot, delivery or production period is Defective, and the Supplier must remedy the whole of it and bear all associated costs including Removal Costs, screening and testing costs.

(f) Cost of cover. Where the Supplier fails to deliver or to remedy, the Company may procure substitute goods or services and recover from the Supplier the excess of the cost of doing so over the Price, together with expedited freight, requalification, testing and internal costs.

(g) Data on returned Goods. Where Goods containing data are returned to the Supplier, the Supplier must handle, secure, and on the Company’s instruction erase or destroy that data in accordance with clause 18, and must certify erasure or destruction in Writing on request.

11. Product Safety, Recall and Traceability

(a) Notification. The Supplier must notify the Company immediately, and in any event within twenty-four (24) hours, on becoming aware of: (i) any actual or potential safety defect, hazard or risk of injury associated with the Goods or with goods of the same type, batch or design; (ii) any Recall, regulatory notice, enforcement action, injury report or field failure trend affecting them; or (iii) any circumstance likely to require a Recall. That period is set so that the Company can meet its own reporting obligations under sections 128 and 131 of the ACL, each of which requires a written notice to the Commonwealth Minister within two (2) days.

(b) Conduct of a Recall. The Company may decide, in its absolute discretion, whether to conduct a Recall, and controls its scope, timing, content and communications. The Supplier must not conduct or announce any Recall in respect of Goods supplied to the Company, or communicate with any Customer about them, without the Company’s prior Written consent, unless required by law and then only after giving the Company as much prior notice as is practicable. Where the Supplier is required by section 128 of the ACL to give notice of a voluntary recall, it must give the Company a copy of that notice at the same time.

(c) Cost of a Recall. The Supplier must bear all costs of any Recall arising from a Defect or from any breach of the Contract, including Removal Costs, the cost of customer notification and call handling, regulatory reporting, transport, replacement, disposal, and the Company’s reasonable internal costs, and must reimburse the Company for all amounts it pays to any Customer or regulator in connection with the Recall.

(d) Cooperation. The Supplier must cooperate fully and promptly with the Company and with any regulator, including the Australian Competition and Consumer Commission and the Australian Communications and Media Authority, in relation to any Recall, safety investigation or product incident, and must provide all technical, production, test and traceability information the Company or the regulator requires.

(e) Traceability. The Supplier must operate a traceability system that permits any item of Goods to be traced to its production batch or lot, its date and place of manufacture, its test records, and the source of each critical component and raw material, and must record and mark that information in accordance with clause 6(c). The Supplier must provide full traceability data for any identified Goods within five (5) Business Days of request, and must be able to identify all other Goods produced from the same batch, lot, material or process.

(f) Counterfeit and unauthorised goods. The Supplier must procure all components and materials from the original manufacturer or its authorised distribution channel, and must maintain controls to prevent counterfeit, cloned, reclaimed or grey market parts entering the supply chain. If any Goods are found to be counterfeit or unauthorised, the Supplier must at its own cost replace them, bear all Removal Costs and investigation costs, notify the Company of the source, cooperate with any investigation, and must not return the affected items into any supply chain. Counterfeit Goods may be retained by the Company or by a regulator and no refund obligation of the Company arises in respect of them.

(g) Product liability indemnity. The Supplier indemnifies the Company and the Group against all loss, liability, damages, costs and expenses, including legal costs on a full indemnity basis, arising out of or in connection with: (i) any claim that the Goods are defective in design, manufacture, instruction or warning, or have caused death, personal injury, or loss of or damage to property; (ii) any Recall; (iii) any failure of the Goods to comply with a statutory guarantee, consumer right or product safety requirement; (iv) any claim by a Customer arising from a failure of the Goods to comply with clause 9(a); and (v) any liability of the Company arising because the Company is treated as the manufacturer, importer, brand owner or responsible supplier of the Goods. This indemnity is not limited by the Warranty Period and applies whether or not any statutory indemnity is available to the Company. In Australia:

(i) product liability is governed principally by Part 3-5 of the ACL (liability of manufacturers for goods with safety defects, sections 138 to 150), by the consumer guarantee regime in Part 3-2 Division 1 and Part 5-4 of the ACL, by the product safety regime in Part 3-3 of the ACL (safety standards, bans, recalls and mandatory reporting), and by the common law of negligence as modified by the Civil Liability Act 2003 (Qld);

(ii) the Company may be deemed to be the manufacturer of the Goods under section 7 of the ACL, and so bear the liabilities of a manufacturer, where it holds itself out as the manufacturer, where its brand or mark is applied to the Goods, where it permits another person to hold it out as the manufacturer, or where it imports the Goods into Australia and the actual manufacturer does not have a place of business in Australia. It may also be deemed the manufacturer under section 147 of the ACL where it is unable to identify the manufacturer or importer on request;

(iii) section 274 of the ACL confers on the Company, as a supplier liable to a consumer for failure to comply with a guarantee under section 54, 55, 56, 58 or 59(1) of the ACL, a statutory right of indemnity against the manufacturer of the Goods. That right is of no practical value to the Company where the Supplier or the actual manufacturer has no place of business in Australia, because in that case the Company is itself the deemed manufacturer under paragraph 7(1)(e) of the ACL and has no person against whom to exercise it. The indemnity in this clause 11(g) is given for that reason, is contractual and independent, applies whether or not any right under section 274 of the ACL exists or is exercisable, and is not limited by section 276A of the ACL. Because a contractual indemnity is of value only if it can be collected and enforced, clause 19(i) requires a Supplier that does not have a place of business in Australia to provide security for the indemnities given under the Contract and to appoint an agent in Australia to accept service of process;

(iv) the Supplier must, immediately on request and in any event within two (2) Business Days, give the Company the name and Australian place of business (if any) of the manufacturer and of the importer of the Goods, so that the Company can respond to a request under section 147 of the ACL; and

(v) the mandatory recall reporting regime is contained in section 128 of the ACL (written notice to the Commonwealth Minister within two days of a voluntary recall) and section 131 of the ACL (written notice to the Commonwealth Minister within two days of becoming aware that goods of a kind supplied have been associated with the death, serious injury or serious illness of any person), together with the compulsory recall powers in sections 122 to 127 of the ACL. The Supplier must give the Company all information the Company requires to make any such notification within the statutory period, and must itself make any notification the law requires it to make.

12. Change Orders, Cancellation and Suspension

(a) Change Orders. The Company may at any time before delivery direct a change to the Order in Writing, including a change to the Specification, quantity, delivery date, Delivery Point, packaging, marking, documentation or method of shipment.

(b) Impact assessment. The Supplier must notify the Company in Writing within five (5) Business Days of receiving a Change Order of any resulting increase or decrease in Price or change in delivery date, with full substantiation. The Supplier must continue to perform the Contract as directed pending agreement on the impact. Any adjustment must be a fair and reasonable adjustment referable to the actual and unavoidable cost or saving.

(c) No late claims. The Supplier has no claim for any Price or schedule adjustment arising from a Change Order unless it has given notice under clause 12(b) within the period stated.

(d) Cancellation for convenience. The Company may cancel, reduce or amend an Order in whole or in part at any time before delivery by giving Written notice to the Supplier, and may suspend an Order under clause 12(g). The notice must identify the part of the Order affected. Where the Price of the cancelled part of the Order is AUD 50,000 or more, the notice takes effect ten (10) Business Days after receipt, unless the Supplier agrees in Writing to a shorter period; otherwise the notice takes effect on receipt. Clause 12(e) states the Supplier’s entitlement on cancellation, and the Company’s right under this clause is exercisable only on the footing that clause 12(e) is honoured.

(e) Cancellation liability. On cancellation under clause 12(d), the Company’s sole liability is to pay for Goods and Services already delivered and Accepted, and to reimburse the Supplier’s unavoidable, documented, direct costs properly incurred in respect of the cancelled part of the Order and not recoverable by the Supplier through resale, reallocation, return to a sub-tier supplier or mitigation. The Company is not liable for loss of profit, loss of overhead recovery, anticipated margin, cancellation charge, restocking charge, or any indirect or consequential loss. The Supplier must take all reasonable steps to mitigate its costs, and must credit the Company with the value of any material, work in progress or capacity it is able to use or resell. No cancellation charge is payable in respect of catalogue or standard Goods.

(f) Substantiation of a claim. The Supplier must submit any claim under clause 12(e) within thirty (30) days of the cancellation notice, with full supporting documentation, and must give the Company and its advisers access to its records to verify the claim. No claim submitted after that period is payable.

(g) Suspension. The Company may suspend performance of an Order in whole or in part by Written notice for up to ninety (90) days in aggregate for that Order, and the delivery dates are extended by the period of suspension. The Company’s liability for a suspension is limited to the Supplier’s reasonable and documented direct storage, insurance and preservation costs, and its unavoidable direct costs of demobilising and remobilising, for the period of suspension beyond thirty (30) days. Where a suspension continues for more than sixty (60) days, the Supplier may by Written notice require the Company either to lift the suspension within twenty (20) Business Days or to treat the suspended part of the Order as cancelled under clause 12(d), in which case clause 12(e) applies. A suspension under this clause does not extend the ninety (90) day limit in clause 7(l), and the two periods together may not exceed ninety (90) days in aggregate for any Order.

(h) Third party claims. The Supplier indemnifies the Company against any third party claim arising out of the Supplier’s failure to perform its own obligations following a Change Order, cancellation or suspension, including any claim by a sub-tier supplier.

(i) Non-cancellable designations. Any designation of Goods by the Supplier as non-cancellable or non-returnable is of no effect unless it is expressly agreed in Writing and stated in the Order.

13. Supplier Default and Termination

(a) Termination for breach. The Company may terminate the Contract, in whole or in part, immediately by Written notice if the Supplier commits a material breach that is not capable of remedy, or that is capable of remedy and is not remedied within ten (10) Business Days of Written notice requiring its remedy. A termination under this clause extends only to the Order affected by the breach and to any other Order for the same Goods, and not to any other contract between the Parties. Nothing in this clause limits clause 13(b), under which the Company may terminate any or all other contracts between the Parties on the grounds stated in that clause.

(b) Immediate termination. The Company may terminate the Contract, and any or all other contracts between the Parties, in whole or in part, immediately by Written notice, and, subject to the last sentence of this clause, without any liability, if: (i) the Supplier becomes subject to an Insolvency Event; (ii) the Supplier fails to deliver by the due date, or fails to deliver any instalment, that failure is material, and it is not remedied within five (5) Business Days of Written notice from the Company requiring its remedy, provided that a termination on this ground extends only to the affected Order and to any other Order for the same Goods, and not to any other contract between the Parties, and provided further that this paragraph does not limit clause 7(f)(i); (iii) the Goods or Services are rejected under clause 8 and the Supplier fails to remedy within the period in clause 10(c), provided that a termination on this ground extends only to the affected Order and to any other Order for the same Goods, and not to any other contract between the Parties; (iv) the Supplier commits a material breach of clause 15, clause 16, clause 17 or clause 18, and either that breach is not capable of remedy, or it involves a Restricted Party or any Trade Controls, forced labour or human trafficking, bribery or corruption, an unauthorised disclosure or use of Confidential Information, or a breach of security affecting Personal Information, or it is capable of remedy and is not remedied within five (5) Business Days of Written notice from the Company requiring its remedy; (v) the Supplier or any of its Supplier Personnel becomes a Restricted Party, or the Company reasonably believes that continued performance would breach any Trade Controls; (vi) the Supplier undergoes a change of control to which the Company objects under clause 22(d); (vii) the Supplier fails to maintain the insurance required by clause 19 and does not reinstate it within five (5) Business Days of Written notice from the Company requiring it to do so; or (viii) the Supplier fails to provide adequate assurance under clause 13(c). Termination under this clause does not relieve the Company of its obligation to pay for Goods delivered and Accepted, and Services performed and Accepted, before termination, subject to clauses 4(e), 4(f) and 4(i).

(c) Adequate assurance. Where the Company has reasonable grounds to be insecure as to the Supplier’s ability or willingness to perform, including where the Company reasonably believes the Supplier may become subject to an Insolvency Event, the Company may by Written notice demand adequate assurance of due performance. The Supplier must provide assurance satisfactory to the Company, acting reasonably, within ten (10) Business Days of the demand, and the Company may suspend its own performance and withhold payment in the meantime. A demand under this clause must state in Writing the grounds on which the Company is insecure and the assurance it requires. Where the Supplier fails to provide that assurance within that period, the Company may treat the Supplier as having repudiated the Contract. This clause is a contractual right operating in addition to, and consistently with, the general law of anticipatory breach and repudiation.

(d) Termination for convenience. The Company may terminate the Contract in whole or in part for convenience at any time by giving not less than ten (10) Business Days’ Written notice, or such shorter notice as the Supplier accepts in Writing. The notice must identify the part of the Contract terminated, and clause 12(e) applies to the consequences. The Company’s right under this clause is exercisable only on the footing that clause 12(e) is honoured.

(e) Consequences of termination. On termination or expiry of the Contract for any reason, the Supplier must immediately: (i) refund all pre-payments and advance payments for Goods not delivered and Accepted and Services not performed and Accepted; (ii) deliver up all Company property under clause 7(k), all Confidential Information under clause 15(f), and all Personal Information under clause 18(j); (iii) at the Company’s option and against payment of the Supplier’s reasonable direct cost, deliver up all completed Goods, work in progress, materials, components and documentation allocated to the Order, title in which passes to the Company on payment; (iv) at the Company’s option, assign to the Company or novate to the Company or its nominee any sub-tier order, licence or arrangement relating to the Order; and (v) provide all information, drawings, tooling records, sub-tier details and manufacturing data the Company requires to procure the Goods or Services from an alternative source.

(f) Accrued rights. Termination does not affect any right, remedy, obligation or liability of either Party that has accrued as at termination.

(g) Survival. Clauses 1, 3(e), 4(b), 4(c), 4(d), 4(e), 4(f), 4(g), 4(j), 5(g), 5(i), 7(h), 7(i), 7(j), 7(k), 8, 9, 10, 11, 12(e), 12(f), 12(h), 13(e), 13(f), 13(h), 15, 16, 17, 18, 19, 20, 21, 22(b), 22(c), 23, 24 and 25, and every other clause that expressly or by implication is intended to survive, continue in full force and effect after termination or expiry.

(h) Ipso facto stays. Where the exercise of a right under clause 7(j), clause 13(b)(i), clause 13(c) or clause 22(d), or of any other right arising by reason of an Insolvency Event or of the Supplier’s financial position, is stayed by section 415D, 415F, 434J, 434K, 451E, 451F or 454N of the Corporations Act, that right is suspended and not extinguished, and revives to the fullest extent the law allows on the stay ceasing to apply. Nothing in this clause limits any right of the Company that arises otherwise than by reason of an Insolvency Event or of the Supplier’s financial position, including any right arising from a failure to deliver, a failure to remedy a Defect, or a breach of clause 15, 16, 17 or 18, and nothing in this clause limits the Company’s rights as owner or bailor of property under clauses 7(i), 7(j) and 7(k) or as the holder of a Security Interest under the PPSA. Where the Supplier is under administration, the Company’s rights under clause 7(j) may be exercised only with the administrator’s written consent or the leave of the Court, and the Supplier and its administrator must on request provide the Company within five (5) Business Days with the location, description and quantity of all Goods and other property of the Company in the Supplier’s possession.

(i) Supplier’s termination right. The Supplier may terminate the affected Contract by Written notice if: (i) the Company commits a material breach of that Contract that is not capable of remedy, or that is capable of remedy and is not remedied within ten (10) Business Days of Written notice from the Supplier specifying the breach and requiring its remedy; or (ii) the Company becomes subject to an Insolvency Event. Failure by the Company to pay an amount that is not the subject of a notice given in accordance with clause 4(e) or clause 4(f) within twenty (20) Business Days after Written notice from the Supplier that the amount is overdue is a material breach for the purposes of this clause. On termination under this clause the Company must pay for all Goods delivered and Accepted and all Services performed and Accepted, and clause 12(e) applies to the balance of the Order as if the Company had cancelled it under clause 12(d). This clause does not entitle the Supplier to suspend or delay performance, and clause 4(h) and clause 25(f) continue to apply.

14. Force Majeure

(a) Definition and relief. Neither Party is liable for delay or failure in performing its obligations under the Contract, other than an obligation to pay money, to the extent that the delay or failure results from a Force Majeure Event, being an event beyond the reasonable control of that Party, including act of God, earthquake, fire, explosion, flood, storm, cyclone, hurricane, act of terrorism, war or threat of war, civil disturbance, riot, act of government, embargo, or epidemic or pandemic.

(b) Exclusions. A Force Majeure Event does not include: (i) any increase in the cost or reduced availability of labour, materials, components, energy, duties, tariffs, freight or transport; (ii) any movement in exchange rates or interest rates; (iii) any industrial action or labour dispute confined to the workforce of the affected Party or of its sub-tier suppliers; (iv) any failure, default, insolvency or delay of a sub-tier supplier, unless the underlying cause would itself be a Force Majeure Event affecting the Supplier directly and no alternative source is reasonably available; (v) any event the affected Party could have avoided or overcome by taking reasonable precautions or by implementing reasonable business continuity or contingency arrangements; or (vi) any failure of the Supplier to obtain or maintain any licence, permit, authorisation or export approval.

(c) Notice and mitigation. The affected Party must notify the other in Writing within five (5) Business Days of becoming aware of the Force Majeure Event, giving full particulars, its expected duration and the steps being taken to mitigate it, and must keep the other informed. The affected Party must use all reasonable endeavours to mitigate and to resume performance. Relief is available only for so long as, and to the extent that, the Force Majeure Event actually prevents performance and the affected Party complies with this clause.

(d) Allocation of supply. Where a Force Majeure Event affects the Supplier’s capacity, the Supplier must allocate available Goods, materials and capacity to the Company on a basis no less favourable than that applied to any other customer, and must not divert to any other customer any Goods, materials or capacity allocated to the Company.

(e) Company’s rights. During a Force Majeure Event affecting the Supplier, the Company may procure the affected Goods or Services from an alternative source, and may reduce or cancel the affected part of the Order, in each case without any cancellation charge and without further liability except that clause 12(e) applies to the cancelled part as if the Company had cancelled it under clause 12(d), and the Company is not obliged to accept late performance.

(f) Termination. If a Force Majeure Event prevents, hinders or delays the Supplier’s performance for a continuous period of more than thirty (30) days, or for periods totalling more than forty-five (45) days in any six month period, the Company may terminate the Contract immediately by Written notice without liability. If a Force Majeure Event prevents, hinders or delays performance of the Contract by either Party for a continuous period of more than sixty (60) days, the Supplier may likewise terminate the affected Contract by Written notice to the Company, provided that it has complied with clauses 14(c) and 14(d). On a termination under this clause by either Party, the Company must pay for all Goods delivered and Accepted and all Services performed and Accepted before termination, no cancellation charge is payable, and neither Party has any further liability to the other in respect of the terminated part of the Contract, without affecting any right or liability accrued before termination.

(g) No price increase. A Force Majeure Event does not entitle the Supplier to any increase in the Price or to recover any cost it incurs as a result of the event. This clause does not limit the Supplier’s entitlement under clause 12(e) as that clause is applied by clause 14(e).

15. Confidentiality

(a) Definition. Confidential Information of a Party (in that capacity, the Discloser) means all information relating to that Party, its business and, in the case of the Company, the Group and any Customer, that is disclosed to or obtained by the other Party (in that capacity, the Recipient) in connection with the Contract, in any form and whether or not marked confidential, including know-how, technology, source code, object code, software, designs, drawings, specifications, databases, documentation, discoveries, inventions, processes, methods, formulations, concepts, trade secrets, prototypes, plans, sourcing information, supplier and customer identities, pricing, cost breakdowns, forecasts, volumes and financial information, together with the existence and terms of the Contract and of any Order. Without limitation, the Supplier’s Confidential Information includes the cost, process, production, quality and sub-tier supply information the Company obtains under clause 3(i), clause 5(g), clause 12(b) or clause 12(f), and the Company’s Confidential Information includes the information described in this clause relating to the Group, any Customer, the Goods and the Services.

(b) Exclusions. Confidential Information does not include information that: (i) is or becomes generally available to the public other than through a breach of a duty of confidentiality owed to the Discloser; (ii) was lawfully in the Recipient’s possession at the time of disclosure and was not acquired from the Discloser or from a Person owing a duty of confidentiality to the Discloser, as evidenced by the Recipient’s pre-existing written records; or (iii) is independently developed by the Recipient without use of or reference to any Confidential Information, as evidenced by the Recipient’s contemporaneous written records.

(c) Obligations. Each Recipient must keep the Discloser’s Confidential Information secret, must use it exclusively for the purpose of performing, administering or enforcing the Contract, and must protect it using at least the measures it applies to its own confidential information of equivalent importance and in no event less than commercially reasonable measures. A Recipient may disclose Confidential Information only to those of its personnel, and to those professional advisers, who need to know it for that purpose and who are bound by obligations of confidentiality no less protective than this clause, and the Recipient remains liable for their acts and omissions. In addition, the Company may disclose the Supplier’s Confidential Information to any member of the Group, and to its auditors, insurers and financiers, on the same terms; and, to the extent necessary to satisfy a representation, certification, disclosure or reporting obligation it owes to a Customer or a regulator, including under clause 17, may disclose the compliance, provenance, origin and emissions information provided under clause 17, in each case disclosing only the minimum reasonably required and, so far as practicable, on terms of confidence.

(d) Compelled disclosure. If a Recipient is required by law or by any regulator or court to disclose Confidential Information, it must, so far as lawful, give the Discloser prompt prior Written notice and a reasonable opportunity to seek a protective order or other relief, must disclose only the minimum required, and must continue to protect the confidentiality of the remainder.

(e) No publicity or use of marks. The Supplier must not issue any press statement or release, make any public announcement, use the Company’s name, marks, logo or images of the Goods, or refer to the Company as a customer or reference, without the Company’s prior Written consent.

(f) Return and destruction. At any time on the Discloser’s request, and on termination or expiry of the Contract, the Recipient must promptly return the Discloser’s Confidential Information or, at the Discloser’s option, destroy it and certify that destruction in Writing, other than one copy retained solely to the extent required by law or by the Recipient’s bona fide record retention policy, and any copy held in routine backup or archival systems that is not readily separable, each of which remains subject to this clause for so long as it is retained.

(g) Ownership and duration. Ownership of and title to Confidential Information, and to any derivative work, improvement or modification of it, remains at all times with the Discloser. The obligations in this clause continue for five (5) years after termination or expiry of the Contract, except that they continue without limit of time in respect of information that is a trade secret, source code, or Personal Information, and in respect of the Company’s Confidential Information relating to a Customer, for so long as that information retains the character of Confidential Information.

(h) Breach. A Recipient must notify the Discloser promptly of any unauthorised access to, disclosure of, or use of the Discloser’s Confidential Information, and must cooperate with the Discloser to prevent further unauthorised access, disclosure or use. Each Party acknowledges that damages may be an inadequate remedy for breach of this clause and that the other Party is entitled to seek injunctive and other equitable relief.

(i) Artificial intelligence systems. A Recipient must not input, upload, submit or otherwise disclose any of the Discloser’s Confidential Information to any third party artificial intelligence, machine learning, large language model or generative system, or to any other system or service that retains, stores, trains on or otherwise learns from the inputs given to it, without the Discloser’s prior Written consent. Where consent is given, the Recipient must comply with any condition the Discloser imposes, including as to the system used, the data retention and training settings applied, and the records kept. This clause applies in addition to clause 15(c), and a disclosure in breach of it is a breach of this clause 15 for the purposes of clauses 13(b)(iv) and 21(a)(iv). Clause 18(b) applies separately, and more strictly, to Personal Information.

16. Intellectual Property

(a) Company Intellectual Property Rights. Except as expressly provided in a separate written agreement, the Company retains all Intellectual Property Rights contained in or arising out of the Company’s specifications, drawings, designs, tooling, materials, data and the results of the Services. All of the Company’s Intellectual Property Rights are the sole and exclusive property of the Company or its licensors. The Supplier acquires no ownership interest in, right to, or licence under any of them by performing the Contract, and any goodwill derived from the Supplier’s use of them accrues to the Company.

(b) Limited licence. The Company grants the Supplier a non-exclusive, non-transferable, revocable licence to use the Company’s Intellectual Property Rights solely to the extent necessary to perform the Contract. The Supplier must not use them for any other purpose, must not take any action adverse to or interfering with them, and must not alter, obscure or remove any of the Company’s marks or proprietary rights notices.

(c) Assignment of developed Intellectual Property Rights. All Intellectual Property Rights created, developed or first reduced to practice by the Supplier or Supplier Personnel in the course of performing the Contract, or in any deliverable, design, drawing, tooling, report, data or software specifically developed for the Company under the Contract, vest in the Company on creation and, to the extent they do not so vest, are assigned to the Company by the Supplier absolutely, by way of present assignment of future rights, free of encumbrance and without further payment. Neither this clause nor clause 16(a) assigns or vests in the Company, and the Company acquires no ownership interest in, any Intellectual Property Rights of the Supplier that exist at the date of the Order, that the Supplier creates independently of the Contract, or that consist of general manufacturing know-how, process improvements, tooling designs or techniques of general application to the Supplier’s business and are not specific to the Company, to the Goods as specified by the Company, or to any Specification, design, drawing or Confidential Information of the Company. Clause 16(e) applies to any such rights that are incorporated in the Goods, the Services or any deliverable. The Supplier must procure from each of the Supplier Personnel all assignments, consents and waivers necessary to give effect to this clause. In Australia:

(i) Copyright. A present assignment of future copyright is effective under section 197 of the Copyright Act 1968 (Cth), and an assignment of copyright must be in writing signed by or on behalf of the assignor under subsection 196(3) of that Act. These Conditions constitute that writing, and the Supplier must on request execute a confirmatory deed of assignment. Where copyright would otherwise vest in an employee’s employer under subsection 35(6) of that Act, or in a commissioning party, the Supplier must procure the assignment of that copyright to the Company.

(ii) Moral rights. Moral rights under Part IX of the Copyright Act 1968 (Cth) are personal to the individual author and cannot be assigned or, as such, waived. The Supplier must instead procure from each individual author a written consent, given in accordance with sections 195AW and 195AWA of that Act and genuinely given and not obtained by duress or by a false or misleading statement, to all acts or omissions of the Company, the Group and their licensees that would otherwise infringe those rights, including the omission to identify the author and any material alteration, adaptation, relocation, alteration of setting, destruction, demolition or removal of the work.

(iii) Patents, designs, trade marks and circuit layouts. An assignment of a patent or of a patent application must be in writing signed by or on behalf of the assignor and the assignee under section 14 of the Patents Act 1990 (Cth); an assignment of a registered design or a design application must be in writing signed by or on behalf of both parties under section 114 of the Designs Act 2003 (Cth); an assignment of a trade mark must comply with Part 10 of the Trade Marks Act 1995 (Cth); and an assignment of a circuit layout right must comply with section 45 of the Circuit Layouts Act 1989 (Cth). The Supplier must on request execute every document required to give effect to those assignments and to record them on the relevant register, and clause 16(d) applies.

(iv) Employee inventions. The Supplier warrants that its arrangements with Supplier Personnel are sufficient to vest in it, and to enable it to assign to the Company, all Intellectual Property Rights covered by this clause, and that no Supplier Personnel has or will assert any claim to ownership of, or to further remuneration in respect of, them.

(v) Formalities. No registration or other formality is required in Australia for the assignment effected by this clause to be effective as between the Parties, but the Company may record any assignment on the relevant register and the Supplier must provide all assistance required to do so.

(vi) No undisclosed artificial intelligence generation. The Supplier warrants that no deliverable, design, drawing, report, data, software or other material provided to the Company under the Contract, and no material part of any of them, has been generated by an artificial intelligence, machine learning, large language model or generative system without the Supplier’s prior Written disclosure of that fact to the Company, identifying the material concerned and the system used. The Supplier acknowledges that material that does not have a human author may attract no copyright under the Copyright Act 1968 (Cth) (IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458; Telstra Corporation Ltd v Phone Directories Company Pty Ltd (2010) 194 FCR 142), so that the assignment effected by this clause 16(c) would convey nothing in respect of it. Where the Supplier makes a disclosure under this paragraph, the Company may reject the material, require it to be replaced by material of human authorship at the Supplier’s cost, or accept it on any condition the Company notifies. A breach of this paragraph is a breach of clause 16 for the purposes of clauses 13(b)(iv) and 21(a)(iv).

(d) Further assurances. The Supplier must, at the Company’s request and at the Supplier’s cost, promptly execute all documents and do all things necessary to vest, perfect, record or enforce the Company’s Intellectual Property Rights under clause 16(c), including assisting with any application, prosecution, registration or proceeding.

(e) Licence of Supplier Intellectual Property Rights. To the extent any deliverable, Goods or Services incorporate Intellectual Property Rights owned by the Supplier or a third party, the Supplier grants, and must procure the grant of, to the Company and the Group a perpetual, irrevocable, worldwide, royalty-free, non-exclusive licence, with the right to sublicense to Customers, distributors, contractors and end users, to use, install, configure, operate, maintain, repair, modify, resupply and dispose of the Goods and deliverables and to permit others to do so. The Supplier must disclose in Writing all open source and third party software incorporated in the Goods and the licence terms applying to it, and must not incorporate any component whose licence terms would require the disclosure or licensing of the Company’s Intellectual Property Rights.

(f) Continuity of software and firmware. Where the Goods contain software or firmware essential to their operation, the Supplier must, on request, enter into a source code escrow or equivalent continuity arrangement on terms reasonably required by the Company, with release triggers including an Insolvency Event, discontinuation of support, and material failure to maintain the software. Clause 13(h) applies to any release trigger that operates by reference to an Insolvency Event.

(g) Non-infringement and IP Claims. The Supplier warrants that the Goods and Services, and their supply, use, resupply and disposal, do not and will not infringe the Intellectual Property Rights of any Person. That warranty, and the obligations in this clause 16(g), are given subject to the same carve-out as the indemnity in clause 16(h), and to no other qualification. If any allegation of infringement is made against the Company, the Group or any Customer (an IP Claim), the Supplier must at its own expense and at the Company’s option: (i) obtain for the Company, the Group and its Customers the right to continue using the Goods or Services; (ii) replace them with non-infringing equivalents of at least equal quality and functionality; (iii) modify them so that they become non-infringing without loss of functionality; or (iv) accept their return and refund the Price in full together with all Removal Costs.

(h) IP indemnity. The Supplier must indemnify, defend and hold harmless the Company, the Group, their officers, employees and Customers against any IP Claim, including all liabilities, damages, losses, costs and expenses, including legal costs on a full indemnity basis.

Carve-out for the Company’s own design. The Supplier’s obligations under clause 16(g) and this clause 16(h) do not apply to the extent that the IP Claim arises solely from the Supplier’s compliance with a design or Written Specification supplied by the Company to the Supplier (including a Specification imposed under clause 5(b)), where the Supplier neither selected, contributed nor modified the element said to infringe, and the Supplier promptly notified the Company in Writing, before performing the affected part of the Order, of any infringement risk of which it was or ought reasonably to have been aware. The Supplier bears the burden of establishing both limbs. In every other case those obligations apply in full, including where the Goods or Services are made pursuant to or in compliance with the Supplier’s own design, instruction, specification or component selection, and including where a design or Specification supplied by the Company is one of several causes of the IP Claim. This carve-out is consistent with clauses 5(a), 5(b) and 16(a), under which the Company may supply or direct a design or Specification, and does not limit clause 16(i).

The Supplier has conduct of the defence and settlement of an IP Claim on notice from the Company, provided that it must not admit liability on behalf of the Company or settle in any manner that imposes any obligation or restriction on the Company or any Customer without the Company’s prior Written consent, and the Company may participate in the defence with its own counsel at its own cost. If the Supplier fails to assume the defence promptly, the Company may defend and settle the IP Claim at the Supplier’s cost.

(i) No Company liability. Under no circumstances does the Company have any liability for any IP Claim arising from the Supplier’s designs, specifications, manufacturing processes, or inclusion of third party materials or components.

(j) Remedies not exclusive. The remedies in clause 16(g) are the Company’s primary remedies for infringement of third party Intellectual Property Rights, but nothing in this clause limits or excludes the Supplier’s obligations under clause 16(h) or clause 20, the Company’s right to any other remedy at law or in equity, including damages for lost profits, consequential loss, cost of cover and Removal Costs, or the Company’s right to terminate the Contract or reject the Goods or Services.

(k) Unlimited liability. The Supplier’s liability under this clause 16 is unlimited in amount and duration.

17. Compliance

(a) General. The Supplier must comply, and must procure that Supplier Personnel and its sub-tier suppliers comply, with all laws, regulations, standards, licences, permits and codes applicable to the Supplier, to the Goods and Services, and to the performance of the Contract, in every jurisdiction of manufacture, transit, delivery and intended use. That obligation includes the WHS Legislation, under which the Supplier is a person conducting a business or undertaking and owes, as a designer, manufacturer, importer or supplier of plant, substances or structures, primary duties that cannot be transferred, including the duties to ensure so far as is reasonably practicable that the Goods are without risks to health and safety and to give the Company adequate information about their safe use, handling, storage and disposal; and any term of the Contract purporting to exclude, limit or modify a duty under that legislation is void under section 272 of the Work Health and Safety Act 2011 (Qld). Where the Supplier engages Supplier Personnel in Australia, that obligation also includes the Fair Work Act 2009 (Cth) and any applicable modern award or enterprise agreement, and the licensing, registration and accreditation requirements referred to in clause 9(a)(xi). The Supplier must comply with the Company’s supplier code of conduct, should one exist and be notified to the Supplier in Writing, and with any other policy so notified.

(b) Trade Controls. The Supplier represents, warrants and undertakes that: (i) it has determined, and is solely responsible for ensuring ongoing compliance with, all applicable export control, import control, sanctions, trade compliance, anti-boycott and economic restriction laws and regulations (together, Trade Controls) of every relevant jurisdiction, including the jurisdiction of the Company, the country of manufacture, the country of any component of the Goods, and every country of transit or delivery; (ii) the Goods, Services and all related technology and technical data are eligible for export, re-export, transfer or supply to the Company and to the Delivery Point without violation of any Trade Controls, and it will provide the applicable export control classification or a statement that no licence is required; and (iii) neither the Supplier, nor any of its Supplier Personnel, sub-tier suppliers or sources of the Goods, is a Restricted Party. The applicable Australian regimes are: the Customs Act 1901 (Cth), together with the Customs (Prohibited Exports) Regulations 1958 (including regulation 13E, which controls the export of goods and technology listed on the Defence and Strategic Goods List) and the Customs (Prohibited Imports) Regulations 1956; the Defence Trade Controls Act 2012 (Cth), which additionally controls the supply, publication and brokering of DSGL technology, including supply to a foreign person within Australia; the Autonomous Sanctions Act 2011 (Cth) and the Autonomous Sanctions Regulations 2011; the Charter of the United Nations Act 1945 (Cth) and the regulations made under it; and the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (Cth). They are administered by Defence Export Controls within the Department of Defence, the Australian Sanctions Office within the Department of Foreign Affairs and Trade, and the Australian Border Force. The lists that must be screened are the DFAT Consolidated List and the UN Security Council Consolidated List and, to the extent those measures apply, the lists maintained by the other authorities named in the definition of Sanctions Authority. Where United States anti-boycott rules apply, including Part 760 of the Export Administration Regulations and section 999 of the Internal Revenue Code, the Supplier must comply with them and must report to the Company any boycott-related request it receives in connection with the Contract.

(c) Prohibited dealings. The Supplier must not source, manufacture, sell, export, re-export, transfer, tranship or supply the Goods or Services, directly or indirectly, in violation of any Trade Controls, including to or through any country, territory or region subject to comprehensive sanctions or embargo, or any Restricted Party. The Supplier warrants that it has no knowledge or reason to believe that the Goods or Services will be used, directly or indirectly, in any prohibited end use, including any activity related to weapons of mass destruction, missiles, unmanned aerial vehicles, nuclear proliferation, or restricted military or surveillance applications.

(d) Country of origin and marking. The Supplier warrants that the country of origin stated on its documentation is accurate and determined in accordance with applicable customs law, and that the Goods and their containers are legibly and durably marked with the country of origin where marking is required. The Supplier must notify the Company in Writing before despatch of any change to the country of origin or place of manufacture of any Goods from that previously advised, and indemnifies the Company against all loss arising from an inaccurate origin declaration or marking failure. Origin is determined in Australia under Division 1A of Part VIII of the Customs Act 1901 (Cth) and the rules of origin in the applicable free trade agreement and its implementing regulations, and the Supplier must supply the certificate or declaration of origin, and the supporting production and cost records, required to substantiate any preferential claim. Marking requirements are imposed by the Commerce (Trade Descriptions) Act 1905 (Cth) and the Commerce (Imports) Regulations 1940, under which a required trade description must be in the English language, in prominent and legible characters, applied in a manner that is not readily removable, and applied to the goods or to their covering as those regulations require. Any representation as to the origin of the Goods must also comply with sections 18, 29(1)(k) and 254 to 258 of the ACL, and the Supplier warrants that every origin representation it makes satisfies the requirements of those sections.

(e) Domestic content and procurement preferences. Where the Order states that the Goods are intended for a project subject to any domestic content, local content, local industry participation or origin-based procurement requirement, the Supplier must provide the certifications, manufacturing cost data and supporting evidence required to establish compliance, warrants that every certification it gives is accurate, and must notify the Company immediately of any change affecting its accuracy. The Australian regimes that may apply are the Australian Jobs Act 2013 (Cth) and the Australian Industry Participation National Framework, including Australian Industry Participation Plans for major projects and for Commonwealth-funded procurement; the Commonwealth Procurement Rules, including the economic benefit and Australian industry participation requirements in them; the Queensland Procurement Policy and the Queensland Charter for Local Content, including the local benefits test; and, where the project is in another State or Territory, the Local Jobs First Act 2003 (Vic) and the Victorian Industry Participation Policy, the New South Wales local content and small and medium enterprise policies, and the corresponding policies of other jurisdictions. Where a certification relies on Australian manufacture or origin, it must be capable of substantiation under sections 254 to 258 of the ACL and, where the Australian Made or Australian Grown logo is used, under the licence conditions applying to that logo.

(f) Network and supply chain security. The Supplier represents and warrants that the Goods do not constitute, and do not contain, any equipment, service or component from a vendor that is prohibited, restricted or designated as a security risk under any applicable telecommunications security, critical infrastructure or supply chain restriction regime, and that it does not use any such equipment as a substantial or essential component of any system used in the production of the Goods. The Supplier must provide a Written representation to that effect in the form the Company requires, must notify the Company immediately if the representation ceases to be accurate, and must provide the supply chain information the Company requires to make its own representations to Customers and regulators. The Australian regimes are the Security of Critical Infrastructure Act 2018 (Cth), into which the telecommunications sector security obligations formerly contained in Part 14 of the Telecommunications Act 1997 (Cth) have been consolidated, including the telecommunications security and notification obligations applying to carriers and carriage service providers, the register of critical infrastructure assets, the critical infrastructure risk management program obligations in Part 2A (which expressly extend to supply chain hazards), and the mandatory cyber security incident reporting obligations in Part 2B requiring notification within twelve (12) or seventy-two (72) hours according to the significance of the incident; the Cyber Security Act 2024 (Cth), as to which clause 17(j)(viii) applies; the Telecommunications (Interception and Access) Act 1979 (Cth); and, where the Goods are supplied for Commonwealth use, the Protective Security Policy Framework and the Australian Government Information Security Manual. The Supplier must provide the declarations, attestations and provenance information the Company requires to satisfy each of those obligations and to answer any request from the Communications Access Co-ordinator, the Cyber and Infrastructure Security Center or the Australian Signals Directorate, and must notify the Company within five (5) Business Days of any change in its direct or indirect ownership or control.

(g) Anti-bribery and anti-corruption. The Supplier must comply with all applicable anti-bribery, anti-corruption, anti-money laundering, anti-facilitation of tax evasion and fraud laws, and must not offer, give, request, accept or authorise any bribe, kickback, facilitation payment or other improper advantage in connection with the Contract. The Supplier must maintain adequate procedures designed to prevent such conduct by Supplier Personnel and sub-tier suppliers, must maintain accurate books and records of all payments made in connection with the Contract, and must provide evidence of those procedures and records on request. The applicable Australian statutes are Division 70 of the Criminal Code Act 1995 (Cth) (bribery of a foreign public official, including the offence in section 70.5A of failing to prevent bribery by an associate, to which an adequate procedures defence applies), Divisions 141 and 142 of that Code (bribery of, and corrupting benefits given to, Commonwealth public officials), section 87 and sections 442B to 442M of the Criminal Code Act 1899 (Qld) (official corruption and secret commissions), the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), the Proceeds of Crime Act 2002 (Cth), and section 26-52 of the Income Tax Assessment Act 1997 (Cth) (no deduction for a bribe to a foreign public official). Statutes with extraterritorial effect that may also apply include the United Kingdom Bribery Act 2010 and the United States Foreign Corrupt Practices Act. The Supplier acknowledges that the prohibition on facilitation payments in this clause is absolute and applies whether or not the limited defence in section 70.4 of the Criminal Code Act 1995 (Cth) would be available. Breach of this clause is a material breach entitling the Company to terminate immediately under clause 13(b).

(h) Modern slavery and responsible labour. The Supplier warrants that no Goods, and no component, input or raw material of any Goods, are produced, mined, manufactured or transported wholly or in part using forced labour, bonded labour, indentured labour, convict labour, child labour or human trafficking, including in any region subject to a presumption or finding of forced labour. The Supplier must comply with all applicable modern slavery, human trafficking and forced labour laws, must take reasonable steps to identify and address those risks in its supply chain, must provide supply chain traceability and due diligence information on request, and must provide such information as the Company reasonably requires to prepare any statement or disclosure or to respond to a Customer or regulator enquiry. The applicable Australian laws include the Modern Slavery Act 2018 (Cth), the Modern Slavery Act 2018 (NSW), and Divisions 270 and 271 of the Criminal Code Act 1995 (Cth). The Supplier must provide the information the Company requires to prepare a modern slavery statement under the Modern Slavery Act 2018 (Cth) within the time the Company notifies. Where Goods the Company resupplies are subject to a foreign forced labour import prohibition or presumption, including under the United States Uyghur Forced Labor Prevention Act and section 307 of the Tariff Act of 1930 and the European Union prohibition on products made with forced labour, the Supplier must provide the evidence required to rebut the presumption or to answer any detention.

(i) Responsible minerals. The Supplier must provide, on request, all information the Company requires regarding the presence, source, smelter and chain of custody of tin, tantalum, tungsten, gold, cobalt, mica and any other designated mineral in the Goods, sufficient to enable the Company or any Customer to meet any applicable responsible sourcing, conflict minerals or supply chain due diligence obligation. The obligation in this clause is contractual and is framed by reference to the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas, the Responsible Minerals Initiative Conflict Minerals Reporting Template and Extended Minerals Reporting Template, the Company’s reporting obligations under the Modern Slavery Act 2018 (Cth), and the obligations the Company owes to Customers that are themselves subject to those foreign regimes. The Supplier must complete and keep current the reporting templates the Company nominates.

(j) Product and environmental compliance. The Supplier warrants that the Goods comply with all applicable product safety, electrical safety, electromagnetic compatibility, telecommunications, radio, energy efficiency, chemical content, hazardous substance, packaging and end-of-life requirements applicable in the country of delivery and in any country the Company has notified the Goods are destined for, and that the Goods bear all required conformity markings. The Supplier must provide all declarations of conformity, test reports, certificates, safety data sheets, chemical content declarations, registration numbers and warning materials the Company requires to import, hold, resupply, install and dispose of the Goods lawfully. The applicable Australian regimes are:

(i) Product safety: Part 3-3 of the ACL (safety standards under section 104, information standards, interim and permanent bans, and recalls) together with Part 3-5 of the ACL;

(ii) Electrical safety: the Electrical Safety Act 2002 (Qld) and the Electrical Safety Regulation 2013 (Qld), the national Electrical Equipment Safety System and the equipment safety rules made under it, AS/NZS 3820, and the registration of in-scope equipment and of the responsible supplier on the national database;

(iii) Electromagnetic compatibility, radio and telecommunications: the Radiocommunications Act 1992 (Cth) with the Radiocommunications (Electromagnetic Compatibility) Standard, the Radiocommunications Equipment (General) Rules and the Radiocommunications (Compliance Labelling—Electromagnetic Radiation) Notice, and Part 21 of the Telecommunications Act 1997 (Cth) with the Telecommunications (Labelling Notice for Customer Equipment and Customer Cabling) Instrument 2015 and the applicable AS/CA standards;

(iv) Conformity marking: the Regulatory Compliance Mark, applied and supported in accordance with AS/NZS 4417.1 and AS/NZS 4417.2, with the Supplier providing the compliance folder, test reports and declaration of conformity required for the Company or its nominee to act as responsible supplier;

(v) Energy efficiency: the Greenhouse and Energy Minimum Standards Act 2012 (Cth) and the GEMS determinations made under it;

(vi) Chemicals and hazardous substances: the Industrial Chemicals Act 2019 (Cth) and the Australian Industrial Chemicals Introduction Scheme, the Industrial Chemicals Environmental Management (Register) Act 2021 (Cth), Chapter 7 of the Work Health and Safety Regulation 2011 (Qld) with safety data sheets prepared to GHS Revision 7, and the Poisons Standard made under the Therapeutic Goods Act 1989 (Cth) where applicable. Where the Company notifies the Supplier that Goods are destined for a market that has a restriction of hazardous substances regime, the Supplier must certify compliance with Directive 2011/65/EU and Regulation (EC) No 1907/2006, or with the equivalent regime of that market;

(vii) Packaging, e-waste and product stewardship: the Recycling and Waste Reduction Act 2020 (Cth) and the rules made under it, including the National Television and Computer Recycling Scheme; the Australian Packaging Covenant and the National Environment Protection (Used Packaging Materials) Measure 2011; and the Waste Reduction and Recycling Act 2011 (Qld) and the Environmental Protection Act 1994 (Qld); and

(viii) Cyber security of connectable products: the Cyber Security Act 2024 (Cth), including any security standard made under it for relevant connectable products and the statement of compliance required to accompany a product to which such a standard applies. Where any Goods are a relevant connectable product, the Supplier must ensure they meet each applicable standard, must supply the statement of compliance in the form required, must notify the Company immediately if it becomes aware that the Goods do not comply, and must remedy the non-compliance at its own cost. The Supplier must also give the Company, within twenty-four (24) hours of becoming aware of it, all information the Company requires in relation to any ransomware or cyber extortion payment or demand connected with the Goods, the Services or the Supplier’s systems used to produce or support them, so that the Company can meet any reporting obligation it owes under that Act.

(k) Information for onward certification. On the Company’s request at any time, whether before or after delivery, the Supplier must promptly provide at its own cost all information, documentation, certification, declaration or assistance the Company requires to verify or maintain its own compliance, or to satisfy any representation, certification or disclosure obligation the Company owes to any Customer or regulator, and must ensure that everything it provides is accurate and complete.

(l) Audit and suspension. The Company may audit the Supplier’s compliance with this clause 17, including by document review, questionnaire and on-site audit under clause 5(g). If at any time the Company reasonably believes, or is notified, that the transaction, the Goods or the Services may violate any Trade Controls or any obligation in this clause 17, the Company may, without liability and in addition to every other right: (i) suspend or terminate the Contract immediately; (ii) withhold payment, delivery or Acceptance; and (iii) require the Supplier to remedy the issue at its own expense.

(m) Indemnity. The Supplier must fully indemnify, defend and hold harmless the Company, the Group and their directors, officers and employees from and against all losses, liabilities, claims, damages, costs, expenses and proceedings arising from or related to any breach of this clause 17 by the Supplier, Supplier Personnel or any sub-tier supplier, including the costs of investigating, defending and remedying any such matter, and any liability to a third party, together with legal costs on a full indemnity basis and the cost of any detention, seizure, re-export or destruction of the Goods. Clause 20(e) applies to this indemnity, and it does not extend to any fine or penalty imposed on the Company or on a member of the Group in respect of its own contravention. The Supplier’s liability under this clause is unlimited in amount and duration.

(n) Emissions, energy and climate data. The Supplier must, on the Company’s Written request and at its own cost, provide within thirty (30) days (or, where the request relates to a reporting deadline notified by the Company, within the period the Company notifies, being not less than twenty (20) Business Days) accurate and complete data on: (i) the greenhouse gas emissions attributable to the Goods and Services supplied to the Company, including Scope 1 and Scope 2 emissions of the Supplier and, so far as it is reasonably able, the Scope 3 emissions in its own upstream supply chain, together with product- or category-level emissions intensity data; (ii) the energy consumed in producing and transporting the Goods; (iii) the methodology, emission factors, boundaries, base year and assumptions used, and whether the data is measured, calculated or estimated; and (iv) any assurance, verification or third party review obtained in respect of that data. The data must be prepared on a basis consistent with the Greenhouse Gas Protocol Corporate Standard and Corporate Value Chain (Scope 3) Standard, or with any other methodology the Company reasonably nominates, so that the Company can meet its own sustainability reporting obligations, including under Chapter 2M Part 2M.3 Division 6 of the Corporations Act and AASB S2 Climate-related Disclosures, and any equivalent obligation it owes to a Customer or regulator. The Supplier warrants that the data it provides is accurate and not misleading, must notify the Company promptly if it becomes aware that data previously provided was inaccurate, must retain the supporting records for not less than seven (7) years, and must provide reasonable assistance to any assurance provider engaged by the Company. Data provided under this clause is the Supplier’s Confidential Information and clause 15 applies to it.

18. Data Protection

(a) Definitions. In this clause, Personal Information means personal information within the meaning of section 6 of the Privacy Act and any other information relating to an identified or identifiable individual that is protected under any applicable privacy or data protection law, and Data Protection Law means all privacy, data protection, data localisation, data breach notification and electronic communications laws, regulations, binding codes and regulator guidance applicable to the Parties or to the processing of Personal Information under the Contract. In Australia, Data Protection Law comprises the Privacy Act and the Australian Privacy Principles in Schedule 1 to it; the Notifiable Data Breaches scheme in Part IIIC of the Privacy Act (sections 26WA to 26WT); the statutory cause of action for serious invasions of privacy in Schedule 2 to the Privacy Act; the registered APP codes and the Privacy (Credit Reporting) Code 2014 where applicable; Part 13 of the Telecommunications Act 1997 (Cth), which restricts the use and disclosure of information about carriage services and their users; the Telecommunications (Interception and Access) Act 1979 (Cth), including the data retention obligations in Part 5-1A and the security obligation in section 187LA; the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth); and the corresponding State and Territory legislation where applicable. The regulator is the Office of the Australian Information Commissioner. The Supplier must comply with the Privacy Act and the Australian Privacy Principles as if it were an APP entity, whether or not it is one, and must not rely on the small business operator exemption in section 6D of the Privacy Act or on any other exemption.

(b) Processing on instructions. The Supplier must process Personal Information received from or on behalf of the Company only on the Company’s documented instructions, only to the extent necessary to perform the Contract, and for no other purpose. The Supplier must not sell, share, retain or use Personal Information for its own purposes, for training any model, or for any commercial purpose of its own.

(c) Security. The Supplier must implement and maintain appropriate technical and organisational measures, appropriate to the risk and sufficient to satisfy Australian Privacy Principle 11, to protect Personal Information and the Company’s data against loss, misuse, interference, unauthorised or unlawful access, disclosure, modification and destruction, including access control, encryption in transit and at rest, logging, vulnerability management, secure development and business continuity measures.

(d) Personnel. The Supplier must ensure that all Supplier Personnel with access to Personal Information are subject to binding obligations of confidentiality, are appropriately trained, and have access only on a need to know basis. The Supplier must remove all access rights immediately when any person ceases to require them, including on that person leaving the Supplier’s business, and must notify the Company of the removal of access for any person holding privileged access to the Company’s systems or accounts.

(e) Sub-processing. The Supplier must not engage any sub-processor or permit any other Person to process Personal Information without the Company’s prior Written consent, and must impose on any approved sub-processor obligations no less protective than this clause 18. The Supplier remains fully liable for the acts and omissions of every sub-processor.

(f) Cross-border transfer. The Supplier must not transfer, store, access or permit access to Personal Information outside Australia, or outside any jurisdiction specified in the Order, without the Company’s prior Written consent, and must implement any transfer mechanism, safeguard or assessment required by Data Protection Law. The Parties acknowledge that: (i) Australian Privacy Principle 8.1 requires an entity, before disclosing personal information to an overseas recipient, to take reasonable steps to ensure that the recipient does not breach the Australian Privacy Principles, and section 16C of the Privacy Act makes the disclosing entity accountable for an act or practice of the overseas recipient that would breach those Principles; (ii) no country or binding scheme has been prescribed for the purposes of Australian Privacy Principle 8.2(a) or section 100 of the Privacy Act as at the date of these Conditions, and this clause 18 accordingly constitutes the reasonable steps required by Australian Privacy Principle 8.1; (iii) the Supplier must not rely on any exception in Australian Privacy Principle 8.2 without the Company’s prior Written consent; and (iv) where the Supplier or any sub-processor is subject to a law of a foreign country that could compel disclosure of Personal Information to a government authority, including the United States Clarifying Lawful Overseas Use of Data Act and orders made under the Australia–United States CLOUD Act Agreement, or is subject to a notice under Part 15 of the Telecommunications Act 1997 (Cth), the Supplier must notify the Company so far as it is lawful to do so, must disclose only the minimum required, and must challenge any request that is not lawful and binding.

(g) Breach notification. The Supplier must notify the Company in Writing within twenty-four (24) hours of becoming aware of any actual or suspected breach of security, unauthorised access, loss or unauthorised disclosure affecting Personal Information or any other data or system of the Company, including any breach affecting the Company’s account or access credentials on any portal or system operated by the Supplier. The notification must include all information the Company requires to assess the incident and to meet its own obligations under Part IIIC of the Privacy Act, including its obligation to carry out an assessment within thirty (30) days of becoming aware of grounds to suspect an eligible data breach and to notify the Australian Information Commissioner and affected individuals as soon as practicable. The Supplier must provide updates, cooperate fully, take immediate containment and remediation steps, and must not notify any individual or regulator about an incident affecting the Company’s data without the Company’s prior Written consent unless required by law.

(h) Assistance. The Supplier must promptly assist the Company, at the Supplier’s cost, in responding to any request from an individual to exercise their rights, including a request for access under Australian Privacy Principle 12 or for correction under Australian Privacy Principle 13, and in meeting any obligation of assessment, consultation, notification or cooperation with a regulator.

(i) Records and audit. The Supplier must maintain complete and accurate records demonstrating compliance with this clause 18, and must permit audits by the Company or its designated auditor, including of its information security controls and of any sub-processor.

(j) Return and deletion. On expiry or termination of the Contract, or on the Company’s Written request, the Supplier must erase, destroy or return all Personal Information and other Company data, including all copies, and must certify that it has done so. Where Goods containing data are returned to the Supplier, the Supplier must apply secure media sanitisation before any reuse, resale or disposal.

(k) Warranties and indemnity. The Supplier represents and warrants that it has the necessary authority, consents and notices in place to process Personal Information as permitted under the Contract, that it maintains appropriate data protection policies including an up-to-date privacy policy satisfying Australian Privacy Principle 1, and that it complies with Data Protection Law. The Supplier indemnifies the Company and the Group against all loss, liability, damages, costs and expenses arising from any breach of this clause 18 or of Data Protection Law by the Supplier, Supplier Personnel or any sub-processor, including the costs of investigating, containing, notifying and remedying the breach, legal costs on a full indemnity basis, and any liability to an individual arising under Schedule 2 to the Privacy Act (statutory cause of action for serious invasions of privacy). Clause 20(e) applies to this indemnity, and it does not extend to any civil penalty or other fine imposed on the Company or on a member of the Group in respect of its own contravention.

19. Insurance

(a) Required insurance. The Supplier must, at its own cost, effect and maintain with insurers of recognised standing the following insurance, on terms covering its liabilities under the Contract, for the term of the Contract and, after it, for the run-off periods stated in this clause. The run-off period for products and completed operations liability is ten (10) years after the last delivery, set by reference to the period in paragraph 143(1)(b) of the ACL, under which an action under Part 3-5 of the ACL in respect of goods with a safety defect may be commenced at any time within ten (10) years of the time the manufacturer supplied the goods. The run-off period for professional indemnity and for cyber liability is seven (7) years after the last delivery or completion. The limits stated in this clause are subject to clause 19(h):

(i) public and products liability, or commercial general liability including products and completed operations, of not less than AUD 20,000,000 for any one occurrence and, in respect of products and completed operations liability, AUD 20,000,000 in the aggregate in any one period of insurance;

(ii) where the Supplier provides design, engineering, certification, testing or other professional Services, professional indemnity or errors and omissions insurance of not less than AUD 10,000,000 for any one claim and AUD 10,000,000 in the aggregate in any one period of insurance;

(iii) marine and inland transit cargo insurance covering the Goods for their full replacement value plus freight and duty for the whole of the transit to the Delivery Point;

(iv) workers’ compensation for all Supplier Personnel, being the compulsory statutory cover required in each State or Territory in which they are engaged (in Queensland, an accident insurance policy with WorkCover Queensland under the Workers’ Compensation and Rehabilitation Act 2003 (Qld), or self-insurance licensed under that Act), providing the statutory benefits and common law cover that scheme requires, together with employer’s liability cover of not less than AUD 20,000,000 for any one occurrence, or, where the statutory scheme provides unlimited common law cover, that scheme cover, in each case in respect of any liability not covered by that scheme and in respect of Supplier Personnel engaged outside Australia; each policy must include a principal’s indemnity extension in favour of the Company and the Group where the scheme permits;

(v) where Supplier Personnel use vehicles or plant in connection with the Contract, including in making deliveries to the Delivery Point, compulsory third party personal injury cover for every registered vehicle under the Motor Accident Insurance Act 1994 (Qld) or the corresponding compulsory scheme of the State or Territory of registration, together with third party property damage cover, and mobile plant and machinery liability cover, of not less than AUD 20,000,000 for any one occurrence; and

(vi) where the Supplier processes Personal Information or connects to the Company’s systems, cyber liability and data breach insurance of not less than AUD 5,000,000 for any one claim and in the aggregate in any one period of insurance.

(b) Insurer standing. Each policy must be placed with an insurer authorised to carry on insurance business in Australia as a general insurer under the Insurance Act 1973 (Cth), or with Lloyd’s underwriters, and must have a financial strength rating of not less than A− from S&P Global Ratings or A− from AM Best, or an equivalent rating from another recognised rating agency. Where any cover is lawfully placed with an unauthorised foreign insurer, the Supplier must first obtain the Company’s Written consent, must comply with the Insurance Act 1973 (Cth) and the regulations made under it, and bears all resulting duty, tax and withholding.

(c) Company’s interest. Each liability policy must note the Company and the Group as additional insureds or note their interest for their respective rights and interests, must include a cross-liability or severability of interests provision, and must include a waiver of subrogation in favour of the Company and the Group. Each of those features is available and enforceable in the Australian market and is standard in Australian broadform liability wordings. This clause does not apply to the professional indemnity insurance required by clause 19(a)(ii) or to the cyber liability insurance required by clause 19(a)(vi), in respect of which the Supplier must procure each of those features only where it is available on commercially reasonable terms in the market in which the policy is placed; where any of them is not available, the Supplier must notify the Company in Writing and, if the Company requires, procure that the policy is endorsed to extend to the Company’s and the Group’s interests to the extent the insurer will agree. Nothing in this clause 19(c) limits clause 19(f). The Parties acknowledge that section 48 of the Insurance Contracts Act 1984 (Cth) entitles a person who is not a party to a contract of general insurance, but who is specified or referred to in it as a person to whom the insurance cover extends, to recover directly from the insurer, and the Supplier must ensure that the Company and each relevant member of the Group is so specified or referred to. The Supplier must not do or omit to do anything that would entitle an insurer to reduce its liability under section 54 of that Act.

(d) Evidence. The Supplier must provide certificates of currency on request, on renewal, and in any event annually, and must provide policy wordings on reasonable request.

(e) Notification. The Supplier must notify the Company immediately if any required policy is cancelled, lapses, is not renewed, is materially altered, or if any limit is materially eroded by claims, and must reinstate cover promptly.

(f) No limitation of liability. The existence, terms, limits, exclusions or adequacy of any insurance, and the availability or non-availability of any recovery under it, do not limit the Supplier’s liability under the Contract. The Supplier is responsible for all deductibles, excesses and self-insured retentions.

(g) Subcontractors. The Supplier must procure that each of its subcontractors maintains insurance appropriate to the work it performs and to the risk it presents, on terms no less protective of the Company than this clause.

(h) Tiering of limits. The limits in clause 19(a) are set by reference to the value of the Order and the risk the Goods and Services present. The Order, or the Company’s supplier onboarding documentation, may state the limits applying to a particular Supplier or Order, and any limits so stated prevail over clause 19(a). Where no limits are stated: (i) the limits in clause 19(a) apply to an Order with a Price of AUD 250,000 or more; and (ii) for an Order with a Price of less than AUD 250,000, the limits are AUD 10,000,000 under clauses 19(a)(i) and 19(a)(v), AUD 5,000,000 under clause 19(a)(ii), and AUD 2,000,000 under clause 19(a)(vi). Clauses 19(a)(iii) and 19(a)(iv) apply in full in every case. The Company may require higher limits where the Goods are safety-critical, are supplied for a network operated under the Telecommunications Act 1997 (Cth), or are acquired for resupply to a Customer whose own contract requires them.

(i) Suppliers without an Australian place of business — security and service of process. Where the Supplier does not have a place of business in Australia at the date of an Order, the indemnities given under the Contract, and in particular the product liability indemnity in clause 11(g), are the Company’s principal protection, because in that case the Company is itself the deemed manufacturer under paragraph 7(1)(e) of the ACL and the statutory indemnity in section 274 of the ACL is of no practical value to it, as clause 11(g)(iii) records. Accordingly, before the Supplier accepts its first Order, and thereafter for so long as any Order is on foot and for the run-off periods stated in clause 19(a), the Supplier must:

(i) provide either a parent company guarantee of the Supplier’s obligations under the Contract, in a form the Company reasonably requires, given by an entity that has a place of business in Australia or that has a credit standing acceptable to the Company acting reasonably, or evidence reasonably satisfactory to the Company that its public and products liability insurance under clause 19(a)(i) is placed with an insurer authorised to carry on insurance business in Australia as a general insurer under the Insurance Act 1973 (Cth), or with Lloyd’s underwriters, and that the policy responds to claims made and to liabilities incurred in Australia and to proceedings brought in an Australian court or in an arbitration seated in Australia; and

(ii) appoint, and maintain, an agent with an address in Australia authorised to accept service of process and of any notice on the Supplier’s behalf in connection with the Contract, notify the Company in Writing of that agent’s name and Australian street address, and notify the Company in Writing of any change within five (5) Business Days. Service on that agent is effective service on the Supplier. Where the Supplier fails to appoint or maintain an agent, or the agent cannot be served at the notified address, the Supplier agrees that service effected in any manner permitted by clause 23 at the Supplier’s last notified address is effective service on it, to the extent the law and the rules of the relevant court allow. Clause 25(c) and clause 25(g) are unaffected by this paragraph.

Failure to comply with this clause 19(i) is a failure to maintain the insurance required by clause 19 for the purposes of clause 13(b)(vii), and the Company may, having given the Supplier Written notice and five (5) Business Days to remedy it, withhold the issue of any further Order and withhold payment until it is remedied; clause 4(f) governs interest on any amount so withheld.

20. Indemnities

(a) General indemnity. The Supplier must indemnify, defend, release and hold harmless the Company, the Group, and their respective successors, assigns, directors, officers, employees, agents and representatives from and against all loss, liability, claims, judgments, settlement amounts, damages, deficiencies, expenses (including reasonable legal costs on a full indemnity basis) and costs, directly or indirectly caused by, arising out of, or relating to: (i) any fraudulent or wilful act or omission of the Supplier or Supplier Personnel, and any claim made against the Company or the Group by a third party arising out of a negligent or reckless act or omission of the Supplier or Supplier Personnel; (ii) any claim made against the Company or the Group by a third party for death, personal injury or loss of or damage to property arising from the Goods or Services, and any liability of the Company or the Group to a third party arising from a Defect; (iii) any Recall, as provided in clause 11(g); (iv) any IP Claim, as provided in clause 16(h), including any claim arising from the Intellectual Property Rights in the Goods or in the packages or containers in which they are shipped where those items are made pursuant to or in compliance with the Supplier’s design, instruction or specification, and any infringement arising from designs, specifications, instructions or equipment furnished or required by the Supplier; (v) any breach of clause 17, as provided in clause 17(m); (vi) any breach of clause 18 or of Data Protection Law, as provided in clause 18(k); (vii) any claim by any of the Supplier Personnel, including any claim relating to employment, engagement, payment, entitlements or workplace injury, and any liability of the Company to a third party, and the costs of investigating, defending and remedying any matter, arising under the WHS Legislation or under any workers’ compensation legislation and attributable to an act or omission of the Supplier or Supplier Personnel; and (viii) any claim by a Customer arising from the Goods or Services or from the Supplier’s performance or non-performance. In this clause 20(a), a third party is a Person other than the Company, a member of the Group and the Supplier. This indemnity answers the third party claims and liabilities, and the other heads, stated in paragraphs (i) to (viii) above. It does not extend to loss that the Company or the Group itself suffers by reason of a breach of the Contract, including loss suffered by reason of a Defect, where that loss does not fall within one of those paragraphs. The Company’s remedy for such a breach is damages under clause 21(b), together with its other rights under these Conditions, including under clauses 8, 9 and 10, and the Supplier’s liability for it is subject to the cap in clause 21(i). Nothing in this clause 20(a) limits clause 11(g), clause 16(h), clause 17(m) or clause 18(k), each of which applies according to its terms and is not subject to that cap.

(b) Conduct of claims. The Company will notify the Supplier of any claim to which an indemnity applies. The Supplier must, on the Company’s request, assume the defence of the claim with counsel reasonably acceptable to the Company, and must not settle it in any way that imposes any obligation, admission, restriction or reputational detriment on the Company or any Customer without the Company’s prior Written consent. The Company may participate in the defence with its own counsel, and may assume the defence at the Supplier’s cost if the Supplier fails to do so promptly or fails to conduct it diligently. A failure or delay in notification does not relieve the Supplier of its obligations except to the extent it is actually and materially prejudiced by it.

(c) Nature of the indemnities. Each indemnity given under the Contract is a continuing obligation, is independent of the Supplier’s other obligations, survives termination or expiry of the Contract, and is enforceable without the Company first incurring expense or making payment. Recovery under an indemnity is not reduced by any insurance recovery the Company makes or could have made, and the Company is under no obligation to claim on any policy before enforcing an indemnity.

(d) Contribution. Each indemnity given under the Contract, including under clauses 11(g), 16(h), 17(m), 18(k) and this clause 20, is reduced proportionately to the extent that the loss was caused by the negligent act or omission of the Company or by the Company’s breach of the Contract. Nothing in this clause imports the proportionate liability regime referred to in clause 21(h), which is excluded to the extent permitted by law.

(e) Fines, penalties and statutory duties. No indemnity given under the Contract, including under clauses 11(g), 16(h), 17(m), 18(k) and this clause 20, extends to any fine, civil penalty, criminal penalty or other punitive imposition imposed on the Company or on any member of the Group by a court or regulator in respect of its own contravention. Each such indemnity extends instead to the costs of investigating, defending and remedying the matter, to legal costs, to remediation and rectification costs, and to any liability to a third party, including any liability to compensate a third party. Nothing in the Contract operates, or is to be read as operating, to transfer, exclude, limit or modify any duty or liability owed by either Party under the WHS Legislation, and section 272 of the Work Health and Safety Act 2011 (Qld) renders void any term that purports to do so.

21. Limitation of Liability

(a) No limitation of the Supplier’s liability for certain matters. Nothing in these Conditions limits or excludes the Supplier’s liability for: (i) death or personal injury caused by its negligence or that of Supplier Personnel; (ii) fraud or fraudulent misrepresentation; (iii) product liability for defective goods, being liability for death, personal injury or loss of or damage to property caused by the Goods, liability under Part 3-5 of the ACL, and liability under clause 11(g); (iv) breach of clause 15, clause 16, clause 17 or clause 18; (v) any indemnity given under clause 11(g), clause 12(h), clause 16(h), clause 17(m), clause 18(k) or clause 20(a); (vi) wilful misconduct or abandonment of performance; or (vii) any matter in respect of which it would be unlawful to exclude or restrict liability. In Australia, the liabilities that cannot lawfully be excluded, restricted or modified, and that are accordingly added to that list, include: (viii) liability for failure to comply with a guarantee under Part 3-2 Division 1 of the ACL, section 64 of the ACL rendering void any term that purports to exclude, restrict or modify it, and clause 9(i)(v) applying to any limitation of the kind contemplated by section 64A of the ACL; (ix) liability under Part 3-5 of the ACL for goods with a safety defect, which cannot be excluded, restricted or modified by reason of section 150 of the ACL; (x) liability for misleading or deceptive conduct under section 18 of the ACL, for a false or misleading representation under section 29 or section 151 of the ACL, and for unconscionable conduct under sections 20, 21 and 22 of the ACL; (xi) liability under Part IV of the Competition and Consumer Act 2010 (Cth); and (xii) any liability the exclusion or restriction of which is prohibited by the WHS Legislation, including by section 272 of the Work Health and Safety Act 2011 (Qld). Where the Supplier is a participant in a scheme under the Professional Standards Act 2004 (Qld) or corresponding legislation of another jurisdiction that would cap its occupational liability, the Supplier must disclose that fact and the applicable cap to the Company in Writing before accepting an Order, and the Company may reject the Order or require the Supplier to procure cover above the cap.

(b) Supplier liable for all loss. Without limiting clause 21(a), and subject only to clause 21(i), the Supplier is liable to the maximum extent permitted by law for all loss the Company suffers arising from the Supplier’s breach of the Contract, including special, indirect, punitive and consequential loss and loss of revenue, business, profits, contract, goodwill, production and use, and Removal Costs. No limitation or exclusion of the Supplier’s liability applies except as expressly set out in these Conditions, and no limitation or exclusion stated by the Supplier in any other document has any effect.

(c) Damage to Company systems. The Supplier is responsible for any damage to or loss of the Company’s programs, data, systems or equipment caused by the Goods, the Services, or by Supplier Personnel.

(d) Company’s liability cap. Subject to clause 21(f), and except in respect of the Company’s liability under clause 7(l), clause 12(e) and clause 12(g), none of which is limited by this clause, the Company’s total liability to the Supplier in respect of all claims arising under or in connection with the Contract does not in any circumstance exceed the Price of the Goods and Services under the Order to which the claim relates.

(e) Company’s excluded loss. The Company is not liable to the Supplier for any indirect or consequential loss, or for any loss of revenue, business, profit, contract, goodwill, anticipated saving or opportunity, however arising.

(f) Non-excludable liabilities. Clauses 21(d) and 21(e) do not apply to any liability of the Company that cannot lawfully be excluded, restricted or modified, including any liability under Part 3-2 Division 1 of the ACL where the Supplier is a consumer in respect of a supply made by the Company, and any liability under section 18 of the ACL.

(g) Unlimited items. The Supplier’s liability under clauses 11(g), 12(h), 16(h), 17(m), 18(k) and 20(a) is unlimited in amount and duration, and clause 21(i) does not apply to it. No other indemnity given under the Contract, and in particular no indemnity given under clause 4(j)(ii), of itself removes any liability from the cap in clause 21(i), although a liability listed in clause 21(a) remains outside that cap however it arises. The Supplier’s liability for a breach of the Contract that falls neither within one of the indemnities listed in this clause nor within clause 21(a) is liability in damages under clause 21(b) and is subject to that cap, and no indemnity given under the Contract operates to take it outside that cap.

(h) Proportionate liability excluded. To the extent permitted by law, and in particular by section 7(3) of the Civil Liability Act 2003 (Qld), the Parties agree that Chapter 2 Part 2 of that Act (proportionate liability for apportionable claims) is excluded in relation to all rights, obligations and liabilities arising under or in connection with the Contract, and the Supplier’s liability is not limited by reference to the responsibility of any concurrent wrongdoer. Where the corresponding legislation of another Australian jurisdiction applies and does not permit exclusion, this clause operates only to the extent that legislation permits, and the Supplier must not join any concurrent wrongdoer to proceedings brought against it by the Company without the Company’s prior Written consent. The Parties acknowledge that the proportionate liability regime in Part VIA of the Competition and Consumer Act 2010 (Cth) cannot be excluded, modified or restricted by agreement, so that a claim by the Company for damages under section 236 of the ACL for a contravention of section 18 of the ACL remains an apportionable claim and the Supplier’s liability for it may be limited by reference to the responsibility of a concurrent wrongdoer. The Company accordingly relies principally on the Supplier’s warranties in clause 9 and on the indemnities given under the Contract, and the Company’s rights under those provisions are contractual rights that are not apportionable and are not affected by this clause.

(i) Supplier’s liability cap for other breaches. Except in respect of a liability listed in clause 21(a) or clause 21(g), the Supplier’s total liability to the Company and the Group for all claims arising under or in connection with the Contract does not exceed the greater of: (i) the Price of the Goods and Services under the Order to which the claim relates; and (ii) the total amount paid and payable by the Company and the Group to the Supplier under all Orders in the twelve (12) months immediately preceding the date on which the claim first arose. This clause does not limit the Supplier’s liability for death or personal injury, fraud, product liability, breach of clause 15, 16, 17 or 18, any indemnity listed in clause 21(g), wilful misconduct or abandonment of performance, or any matter listed in clause 21(a), in each of which cases the Supplier’s liability is unlimited. The Parties intend that this clause operates on the Supplier’s liability in damages for breach of the Contract, that it is not displaced by any indemnity other than those listed in clause 21(g), and that the Company’s remedies under clauses 8, 9 and 10, and its rights of rejection, set-off and recovery, are unaffected by it.

22. Assignment and Subcontracting

(a) Company. The Company may at any time assign, transfer, novate, charge, mortgage, pledge, subcontract or otherwise deal with all or any of its rights or obligations under the Contract, including to any member of the Group or to any purchaser of its business, without the Supplier’s consent.

(b) Supplier. The Supplier may not assign, transfer, novate, charge, mortgage, pledge, declare a trust over or otherwise deal with any of its rights or obligations under the Contract without the Company’s prior Written consent, and clause 4(j) applies to any receivable owing to it. That consent must not be unreasonably withheld or delayed where the proposed assignee is a holding company or a wholly owned subsidiary of the Supplier that assumes the Supplier’s obligations in full, the Supplier remains liable for their performance, and the assignment does not give rise to a ground for termination under clause 13(b)(v) or clause 22(d).

(c) Subcontracting. The Supplier may not subcontract the manufacture of the Goods, or any material part of the performance of the Services, without the Company’s prior Written consent. Consent does not relieve the Supplier of any obligation or liability, and the Supplier remains fully responsible for the acts and omissions of every subcontractor as if they were its own. The Supplier must flow down to each subcontractor obligations no less protective of the Company than clauses 5, 6, 9, 11, 15, 16, 17, 18 and 19, and must procure for the Company the right to enforce them directly or to have them assigned or novated to the Company on termination.

(d) Change of control. The Supplier must notify the Company in Writing within five (5) Business Days of any change in control of the Supplier, any sale or disposal of a material part of its business or of the business unit performing the Contract, or any change in the ownership or control of any facility at which the Goods are manufactured. Control has the meaning given in section 50AA of the Corporations Act. Where the Company reasonably considers that the change adversely affects the Supplier’s ability to perform, presents a conflict of interest, or presents a Trade Controls, security, or compliance risk, the Company may terminate the Contract immediately by Written notice without liability.

(e) Group Orders. Each Order issued by a member of the Group forms a separate Contract between that member and the Supplier on these Conditions, and no member of the Group is liable for the obligations of any other. Rights expressed to be for the benefit of the Group are enforceable by the Company on behalf of the relevant member, and clause 24(b) applies.

23. Notices

(a) Form and delivery. A notice under the Contract must be in Writing and delivered personally, sent by courier, sent by prepaid registered or certified post with acknowledgement of receipt, or sent by email to the address specified in this clause.

(b) Addresses. Notices to the Company must be sent to ScaleFibre Australia Pty Ltd, PO Box 31, North Lakes, QLD 4509, Australia, marked for the attention of Legal, with a copy by email to legal@scalefibre.com. A notice delivered personally or by courier must be delivered to 9 Florence St, Teneriffe QLD 4005, and until the Company notifies that address to the Supplier in Writing a notice given by email in accordance with this clause 23 is sufficient. Notices to the Supplier must be sent to the address or email address stated in its quotation, in its acceptance of the Order, or otherwise notified to the Company in Writing.

(c) Deemed receipt. A notice is deemed received: (i) if delivered personally or by courier, when left at the relevant address; (ii) if sent by post, two (2) Business Days after posting, or five (5) Business Days after posting if sent to or from an address in another country; and (iii) if sent by email, on the day of successful transmission where sent before 16:00 on a Business Day at the recipient’s location, and otherwise on the next Business Day. This clause applies to the extent permitted by the Electronic Transactions (Queensland) Act 2001 (Qld) and the Electronic Transactions Act 1999 (Cth), and the Parties agree that it displaces the default time-of-receipt rules in those Acts.

(d) Excluded means. A notice is not validly given if sent only through an electronic portal operated by the Supplier, or by any automated system message.

(e) Operational communications. Delivery schedules, forecasts, call-offs, quality notifications and other operational communications may be given by the means the Parties adopt in practice and are not required to comply with this clause 23, but any notice of breach, rejection, Recall, suspension, cancellation or termination must comply with it.

(f) Language. All notices, documentation, certificates, labelling and correspondence under the Contract must be in English, unless the Order or applicable law requires another language, in which case an English translation must also be provided.

24. General

(a) Relationship. Nothing in the Contract creates a partnership, joint venture, agency, franchise or employment relationship between the Parties. Neither Party has authority to pledge the credit of, make any representation on behalf of, or contract on behalf of, the other. No Supplier Personnel are to be treated as employees of the Company by reason only of the Contract.

(b) Third party rights. The Contract confers no right on any Person other than the Parties, except that each member of the Group and, where expressly stated, each Customer, may enforce the benefit of clauses 9(f), 11(g), 16(g), 16(h), 17(m), 18(k) and 20 to the extent expressed to be for its benefit. Section 68 of the Property Law Act 2023 (Qld), section 55 of the repealed Property Law Act 1974 (Qld) in respect of any promise made before 1 August 2025, and any corresponding provision in another jurisdiction, do not apply to the Contract, save that they apply to clauses 9(f), 11(g), 16(g), 16(h), 17(m), 18(k) and 20, each of which is a promise for the benefit of, and is enforceable by, each Person and each member of a class of Persons identified in it. For the purposes of subsection 68(3) of the Property Law Act 2023 (Qld), the Parties may terminate or modify the Contract or any promise in it by agreement between them at any time, without the consent of any third party, whether or not that third party has accepted the benefit of the promise. Because no equivalent statute is in force in most other Australian jurisdictions, the Company additionally takes the benefit of each of those clauses as agent for, and holds it on trust for, each member of the Group and each Customer expressed to have the benefit of it, and may enforce it on their behalf; and the Supplier covenants directly with the Company for the benefit of each of them. The Company holds each such benefit on terms permitting it to decide whether, when and how to enforce it, and to vary, waive, release, compromise, settle or assign the benefit or any claim under it, in each case as it thinks fit and having regard to its own commercial interests, which it may prefer to the interests of any beneficiary, and without being obliged to consult or to obtain the consent of any beneficiary. The Company is not liable to any beneficiary for any loss arising from an exercise or non-exercise of that discretion in good faith. The Company must nevertheless act honestly and in good faith in the exercise of that discretion, and must account to a beneficiary for so much of any proceeds of enforcement as it actually recovers in respect of that beneficiary’s loss and not in respect of its own; those duties are enforceable by the beneficiary, and the Parties intend them to constitute the irreducible core of obligation without which no trust arises. The Parties acknowledge that the principal mechanism by which a member of the Group takes the benefit of these Conditions is clause 22(e), under which each Order issued by a member of the Group forms a separate Contract between that member and the Supplier as principal, and that the direct covenant and the trust stated in this clause operate in support of, and not in substitution for, that mechanism and the statutory opt-in stated above. Only the Parties may vary or rescind the Contract, and no consent of any third party is required.

(d) Waiver. No forbearance, delay or indulgence by the Company in enforcing the Contract prejudices or restricts its rights. No waiver of a breach operates as a waiver of any subsequent breach. A waiver is effective only if in Writing and signed by an Authorised Officer. The Company’s rights and remedies are cumulative.

(e) Severability and reading down. If any provision of the Contract is held illegal, invalid or unenforceable in whole or in part, that provision applies with the minimum modification necessary to make it legal, valid and enforceable, or, if that is not possible, is severed, and the remaining provisions and the remainder of that provision remain in full force and effect. If any term of the Contract is unfair within the meaning of section 24 of the ACL, that term is void and the Contract continues to bind the Parties to the extent it is capable of operating without it. The Parties acknowledge that the unfair contract terms regime in Part 2-3 of the ACL may apply where the Supplier is a small business within the meaning of section 23 of the ACL. The Supplier has had a reasonable opportunity to read these Conditions and to propose amendments to any of them before accepting an Order.

(f) Variation. The Contract may only be varied by a written instrument referring to this clause 24(f) and signed by an Authorised Officer, or by a Change Order issued under clause 12(a).

(g) Order of precedence. In the event of conflict between the documents forming the Contract, the order of precedence is: (i) any special conditions expressly agreed in Writing and signed by an Authorised Officer; (ii) these Conditions; (iii) the Order; and (iv) any other document expressly stated in the Order to form part of the Contract.

(h) Entire agreement. These Conditions, together with the Order and any document stated in the Order to form part of the Contract, constitute the entire agreement between the Parties relating to its subject matter and supersede all prior agreements, statements, representations, understandings, negotiations and discussions, whether oral or written. Each Party acknowledges that it does not rely on, and has not been induced to enter into the Contract by, any statement, representation, warranty or understanding made before the Contract except to the extent incorporated into it. Nothing in this clause limits liability for fraud or fraudulent misrepresentation, or for conduct that contravenes section 18 of the ACL.

(i) Counterparts and electronic execution. The Contract may be entered into and executed in counterparts, including by electronic signature and by exchange of email, all of which constitute one agreement. Electronic execution is effective under the Electronic Transactions Act 1999 (Cth) and the Electronic Transactions (Queensland) Act 2001 (Qld) and, in the case of an Australian company, under sections 110A, 126 and 127 of the Corporations Act, which permit a document (including a deed) to be signed electronically, in counterparts and without a common seal, and which permit the Company to rely on the assumptions in sections 128 and 129 of that Act. No Order, Change Order or variation of these Conditions need be executed as a deed, witnessed or notarised. Where the Company requires a document to be executed as a deed, the Property Law Act 2023 (Qld) permits a deed to be made in electronic form and signed electronically and does not require sealing; the Supplier must comply with the execution, witnessing and delivery requirements the Company notifies. Where an Order is supported by a guarantee, or by any assurance relating to an interest in land, that guarantee or assurance must be in writing and signed by or on behalf of the party to be charged as the Property Law Act 2023 (Qld) requires, and the Company may require a wet-ink original. Where the Supplier is a foreign company, it must execute in a manner effective under the law of its place of incorporation and must provide evidence of the signatory’s authority on request.

(j) Further assurance. Each Party must promptly do all things and execute all documents reasonably necessary to give full effect to the Contract.

(k) Costs. Each Party bears its own costs of negotiating and entering into the Contract. To the extent permitted by law, a Party that succeeds in enforcing a right or recovering an amount owing under the Contract is entitled to recover from the other Party its reasonable costs of doing so, including legal costs, and this clause operates equally in favour of each Party.

(l) Non-solicitation. During the term of the Contract and for twelve (12) months after it ends, the Supplier must not solicit for employment or engagement any employee of the Company with whom it has had contact in connection with the Contract, other than through a general advertisement not targeted at that person. The Parties acknowledge that suitably qualified engineering, quality, technical support and supply chain personnel are scarce in Australia, that the Company has a legitimate interest in the continuity of its workforce and in protecting its investment in training and accreditation, and that the period and scope of this restraint are reasonable and go no further than is necessary to protect that interest. If the restraint would otherwise be void as an unreasonable restraint of trade, it applies with the period reduced successively to nine (9) months, six (6) months and three (3) months, and with its scope limited to those individuals with whom the Supplier had direct contact, until it is valid and enforceable.

(m) Set-off and payments free of deduction. All amounts payable by the Supplier to the Company under the Contract must be paid in full without any set-off, counterclaim, deduction or withholding, except any deduction or withholding required by law, in which case the Supplier must gross up the payment so that the Company receives the amount it would have received had no deduction or withholding been required.

25. Governing Law, Jurisdiction and Disputes

(a) Governing law. The Contract is governed by and construed in accordance with the law of Queensland, Australia, without regard to its conflict of laws rules.

(b) Jurisdiction — Suppliers with a place of business in Australia. Where the Supplier has a place of business in Australia at the date of the Order, the Parties irrevocably submit to the exclusive jurisdiction of the courts of Queensland, and of the Federal Court of Australia sitting in Brisbane where that Court has jurisdiction, together with the courts competent to hear appeals from either of them, and waive any objection to venue or to the forum on the ground of inconvenience. This clause is subject to clause 25(g), and applies in support of an arbitration under clause 25(g) where that clause applies.

(c) Protective and recovery proceedings. Despite clause 25(b) and clause 25(g), the Company may bring proceedings in any court of competent jurisdiction where the Supplier is located, where any of the Supplier’s assets are located, or where the Goods are located, for the recovery of any amount owing, for the recovery or preservation of Goods or Company property, for urgent interlocutory or injunctive relief, or for the protection of its Confidential Information or Intellectual Property Rights.

(d) Trial by judge alone. Proceedings under clause 25(b) are to be tried by a judge sitting without a jury, and neither Party will apply for a jury under section 73 of the Civil Proceedings Act 2011 (Qld) or any corresponding provision. Where proceedings relating to the Contract are brought in a jurisdiction that recognizes a right to trial by jury in civil proceedings of this kind and permits its waiver, each Party irrevocably waives any right to trial by jury in that action.

(e) Dispute escalation. Before commencing proceedings, a Party must give Written notice of the dispute, and the Parties must procure that a senior representative of each meets, in person or by video conference, within fifteen (15) Business Days of that notice to attempt to resolve it in good faith. If no meeting takes place within that period, or if the dispute is not resolved within thirty (30) days after the meeting, either Party may commence proceedings or, where clause 25(g) applies, commence an arbitration. This clause does not prevent either Party from seeking urgent interlocutory or injunctive relief, and does not apply to proceedings under clause 25(c).

(f) Continued performance. The Supplier must continue to perform the Contract in accordance with its terms while any dispute is being resolved, and may not suspend or delay performance on account of a dispute.

(g) Arbitration — Suppliers without a place of business in Australia. Where the Supplier does not have a place of business in Australia at the date of the Order, or where the Order or any special conditions provide for arbitration, any dispute arising out of or in connection with the Contract, including any question as to its existence, validity, breach or termination, must be finally resolved by arbitration administered by the Australian Center for International Commercial Arbitration (ACICA) under the ACICA Arbitration Rules, with the seat of arbitration in Brisbane, Queensland, Australia, before one (1) arbitrator (or three (3) arbitrators where the amount in dispute exceeds AUD 5,000,000), conducted in the English language. Where this clause applies, clause 25(b) operates only in respect of applications in support of, or to recognize or enforce the award of, that arbitration, and clause 25(c) is unaffected. An international arbitration is governed by the International Arbitration Act 1974 (Cth) and the UNCITRAL Model Law as given effect by that Act, and an award is enforceable under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards; a domestic arbitration is governed by the Commercial Arbitration Act 2013 (Qld). Whether the Supplier has a place of business in Australia is determined at the date of the Order, and the Supplier must notify the Company in Writing before accepting an Order if it does not.

(h) Limitation of actions. No period within which the Company may commence an action arising out of or relating to the Contract is reduced below the period provided by law, and any attempt by the Supplier to reduce that period, whether by its own terms or otherwise, is of no effect. An action by the Company under any indemnity may be commenced within the period provided by law running from the date the Company discharges the liability to which the indemnity relates. The Company does not agree to any shortening of any limitation period, and no notice requirement or time bar in any document of the Supplier operates to shorten one.

(i) International conventions excluded. The United Nations Convention on Contracts for the International Sale of Goods, given effect in Australia by the Sale of Goods (Vienna Convention) Act 1986 (Qld) and by its equivalents in the other Australian States and Territories, does not apply to the Contract, and the Parties exclude it in accordance with Article 6 of that Convention. The United Nations Convention on the Limitation Period in the International Sale of Goods has not been enacted in Australia and does not apply; to the extent it would otherwise apply, it is excluded.

(j) Extraterritorial trade laws. Export control, sanctions and trade compliance laws of jurisdictions other than Australia may apply to the Contract, as set out in clause 17.

If you have questions, contact us:
Legal Enquiries Email: legal@scalefibre.com
Telephone: 1300 420 699

ScaleFibre Australia Pty Ltd ABN 49 686 931 939 (ACN 686 931 939)
PO Box 31
North Lakes, QLD 4509
Australia

Standard Purchasing Terms – ScaleFibre Australia Pty Ltd

1. Definitions and Interpretation

1.1 Definitions

1.2 Interpretation

2. Order Formation and Acceptance

3. Price, Taxes and Duties

4. Payment and Set-Off

5. Specification, Tolerances and Quality

6. Packaging, Labelling and Documentation

7. Delivery, Title and Risk

8. Inspection, Acceptance and Rejection

9. Supplier Warranties

10. Remedies, Rework and Repair

11. Product Safety, Recall and Traceability

12. Change Orders, Cancellation and Suspension

13. Supplier Default and Termination

14. Force Majeure

15. Confidentiality

16. Intellectual Property

17. Compliance

18. Data Protection

19. Insurance

20. Indemnities

21. Limitation of Liability

22. Assignment and Subcontracting

23. Notices

24. General

25. Governing Law, Jurisdiction and Disputes

Information

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Standard Purchasing Terms – ScaleFibre Australia Pty Ltd

1. Definitions and Interpretation

1.1 Definitions

1.2 Interpretation

2. Order Formation and Acceptance

3. Price, Taxes and Duties

4. Payment and Set-Off

5. Specification, Tolerances and Quality

6. Packaging, Labelling and Documentation

7. Delivery, Title and Risk

8. Inspection, Acceptance and Rejection

9. Supplier Warranties

10. Remedies, Rework and Repair

11. Product Safety, Recall and Traceability

12. Change Orders, Cancellation and Suspension

13. Supplier Default and Termination

14. Force Majeure

15. Confidentiality

16. Intellectual Property

17. Compliance

18. Data Protection

19. Insurance

20. Indemnities

21. Limitation of Liability

22. Assignment and Subcontracting

23. Notices

24. General

25. Governing Law, Jurisdiction and Disputes

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