TERMS & CONDITIONS OF PURCHASE ORDERS
1. Definitions and Interpretation
In these terms and conditions, unless the context otherwise requires:
(a) ‘Benthic’ means the entity issuing the Purchase Order which, as the case may be is either, Benthic Geotech Pty Ltd (Australia), or Benthic Australasia Pty Ltd (Australia), or Benthic Singapore Pte Ltd (Singapore), or Benthic USA, LLC (USA), or Benthic Admin Services (Cayman Islands), or Benthic Limited (United Kingdom), or Benthic do Brasil (Brazil) or Benthic Geoscience International Limited (Republic of Ireland). The entity issuing this Purchase Order will be the only entity liable for payment of the Goods or Services.
(b) ‘Delivery Date(s)’ means, in the case of Goods, the date(s) for their delivery and, in the case of Services, the date(s) for their performance, as specified in the Purchase Order;
(c) ‘Goods’ means the goods or final product (if any) described in the Purchase Order;
(d) ‘Purchase Order’ means the document headed Purchase Order prepared by Benthic, describing the Goods and/or Services to be supplied by the Supplier and appended by these terms and conditions (which may be amended by Benthic from time to time);
(e) ‘Services’ means the services (if any) described in the Purchase Order together with any specifications, drawings or other documents or materials attached to, accompanying, or referred to, whether in hard copy or electronic form;
(f) ‘Supplier’ means the person or entity described as the addressee in the Purchase Order from where the Goods or Services are ordered;
(g) ‘Warranty Period’ means the greater of one (1) year or the period specified in the Purchase Order commencing, in the case of Goods, on the date of their delivery to Benthic and, in the case of Services, on the date of completion of their performance by the Supplier;
(h) a word, phrase or expression has the meaning given to it in the edition of ‘INCOTERMS’ current at the Purchase Order date.
2. General Matters
2.1 By accepting the Purchase Order and/or supplying the Goods and/or Services, the Supplier acknowledges and agrees that:
(a) the Goods and/or Services will be, or have been, supplied on and subject to these terms and conditions; and
(b) no terms and conditions contained in or deemed to be incorporated by any document of, or any form of written, electronic or oral communication from, the Supplier (‘Materials’), will apply to, override or amend in any way these terms and conditions, regardless of whether the Materials were in existence, or were provided to Benthic, before, on or after, the date of the Purchase Order.
2.2 The Supplier acknowledges and agrees that it has carefully examined all specifications, drawings and other documents or materials that form part of the Purchase Order, and has fully satisfied it regarding all conditions, risks, contingencies and other circumstances that might affect in any way the supply of the Goods and/or Services. If the Supplier discovers any ambiguity in the Purchase Order, it will immediately notify Benthic. Benthic will then determine the correct interpretation of the Purchase Order.
2.3 All specifications, drawings and other documents, materials and information provided by Benthic to the Supplier in relation to the Purchase Order are confidential to, and remain the property of, Benthic or its customers (as the case may be). Such specifications, drawings and other documents, materials and information, and the prices, terms and conditions of the Purchase Order, must not be disclosed to any third party without Benthic’s prior written consent and must be used by the Supplier solely for the performance of its obligations to Benthic. The Supplier’s obligations under this clause 2.3 are continuing obligations and will survive completion or termination of the Purchase Order.
3. Insurance and Indemnification
3.1 The Supplier will effect and maintain the policies of insurance specified in the Purchase Order (if any) and/or, in any event, sufficient to cover its liabilities under the Purchase Order to the extent that the liabilities are insurable.
3.2 The Supplier will indemnify and keep indemnified Benthic and its officers, employees, agents and contractors from and against all claims, demands, proceedings, liabilities, costs, charges and expenses arising as a result of any act or omission, negligence, breach by, or default of, the Supplier, its officers, employees, agents or contractors related to the Supplier’s obligations under the Purchase Order, including those arising from any infringement of any intellectual property right.
3.3 In the event Benthic and Supplier execute an agreement for the supply of the Goods or Services provided under this Purchase Order, the terms of the agreement shall supersede any conflicting or contradictory term of the Purchase Order.
4. Supplier Warranties
4.1 The Supplier represents and warrants, and it is a condition of the Purchase Order that:
(a) all Goods and Services will be of merchantable quality, suitable for the purpose for which they are required by Benthic, free from any defects in design, materials and workmanship and will comply with their respective descriptions;
(b) it will use new and undamaged materials, unless otherwise specified in the Purchase Order;
(c) it will comply with the standards of quality and workmanship specified in the Purchase Order (provided that if no standards are specified then of the highest standards), and its obligations will be carried out in accordance with the Purchase Order, good engineering practice, and all applicable local and international standards and codes;
(d) it has the capability, skills, resources and expertise necessary to supply the Goods and/or Services in accordance with the Purchase Order;
(e) supply of the Goods and/or Services under the Purchase Order will not infringe any patent, trade mark, copyright, registered design or other intellectual property right of any third party;
(f) the Goods will be free from any liens, charges, encumbrances, mortgages or other encumbrances of defects in title; and
(g) it will comply with all applicable laws and with the lawful requirements of all statutory authorities related to the supply of the Goods and/or Services under the Purchase Order, including any applicable statutory terms, conditions and warranties.
4.2 During the Warranty Period, Benthic may notify the Supplier of any failure or defect in the Goods or Services. The Supplier will, immediately and at no cost to Benthic, correct any such defect or failure which is a breach of clause 4.1, by way of repair, replacement, resupply or other means acceptable to Benthic. If the Supplier fails to correct any such defect or failure within the time specified in Benthic’s notice (which will not be unreasonable), Benthic may rectify such defect or failure itself, or have the rectification undertaken by
a third party, and all costs and expenses incurred by Benthic in so doing, will be a debt due and payable by the Supplier or deducted by Benthic from monies otherwise owing to the Supplier. Any Goods or Services repaired, replaced or resupplied under this clause 4.2 may be subject to a further full Warranty Period, if Benthic requires, commencing on the date of completion of any such repair, replacement or resupply.
5. Testing and Inspection
5.1 Goods must be tested as required by, and to the level of satisfaction described in, the specifications (if any) forming part of the Purchase Order. Unless set out elsewhere in the Purchase Order, the Supplier is responsible for any tests and the costs of such tests. The Supplier will promptly notify Benthic of all test results.
5.2 Benthic may inspect Goods at the Supplier’s premises. Such inspection will not constitute acceptance of the Goods or their compliance with the Purchase Order or affect Benthic’s rights to reject the Goods at any time for any non-compliance of the Goods with the Purchase Order.
5.3 Goods will not be accepted until Benthic notifies its acceptance of them.
6. Delivery, Title and Risk
6.1 Unless otherwise specified in the Purchase Order, Goods must be delivered unencumbered, adequately packaged and protected to ensure safe delivery, to Benthic’s nominated delivery point, by the Delivery Date(s). Delivery of Goods will be evidenced by a signature on a delivery docket by a duly authorised representative of Benthic.
6.2 Services must be performed by the Delivery Date(s). Performance of a Service will be evidenced by a signature on an acceptance form by a duly authorised representative of Benthic.
6.3 The Supplier must comply with any rules imposed by Benthic in respect of Benthic premises.
6.4 Time is of the essence with regard to the delivery of Goods and the performance of Services. The Supplier must immediately notify Benthic if it believes that it is likely that delivery of Goods or performance of Services may not meet the Delivery Date(s). If the Supplier fails to deliver Goods or provide Services by the Delivery Date(s):
i) unless the right is waived formally in writing by authorised Benthic personnel to acknowledge late delivery by the Supplier, liquidated damages will be due to Benthic at the amount of 5% of the amount due to the Supplier, as indicated on the Order, for each week the Supplier fails to deliver Goods or provide Services by the Delivery Date(s), capped to 50% of the invoice value;
ii) Benthic may terminate the Purchase Order, either in whole or in part, in accordance with clause 7 and, in addition to any other rights and remedies it may have at law or otherwise as well as deduct from any monies due to the Supplier as specified in this clause as liquidated damages for each week delivery or performance exceeds the Delivery Date(s).
The Supplier acknowledges that amounts to be deducted, as liquidated damages are a genuine pre-estimate of Benthic’s losses for late delivery or performance.
6.5 Unless otherwise specified in the Purchase Order Goods become Benthic’s property upon the earlier of acceptance by Benthic or their delivery to Benthic. Notwithstanding that Goods may have been accepted or that Benthic has taken delivery of Goods or paid for them, the Supplier will be liable for any loss or damage to Goods, which may have occurred before their delivery, and for any non-compliance of Goods with the Purchase Order.
6.6 Unless otherwise specified in the Purchase Order, Benthic retains title to all property, whether tangible or intangible, that it provides to the Supplier in relation to the Purchase Order, and all intellectual property rights arising in the course of supply vests in Benthic subject to any rights of any third party.
7. Variation, Suspension and Termination
7.1 The Supplier will carry out such variations in relation to the Goods and/or Services to be supplied under the Purchase Order as Benthic may notify. The parties will attempt to agree the effect that such variations may have on the price payable by Benthic and the Delivery Date(s) before the Supplier carries out such variations. If agreement is not reached, there will be deemed to be a dispute subject to clause 9.
7.2 The Supplier may not vary the Purchase Order without Benthic’s prior written consent.
7.3 If the Supplier commits a material breach of the Purchase Order and fails to rectify such breach, or satisfy Benthic that it can complete the Purchase Order, within the time specified by Benthic in its notice to the Supplier advising of the breach, Benthic may terminate the Purchase Order in whole or in part.
7.4 If, in Benthic’s opinion, the Supplier is unable, or is unlikely to be able, effectively to perform its obligations under the Purchase Order due to actual or (in Benthic’s reasonable opinion) potential insolvency, bankruptcy or related reasons, Benthic may terminate the Purchase Order.
7.5 Notwithstanding any other provision of the Purchase Order, Benthic may terminate the Purchase Order by giving at least two (2) weeks prior notice to the Supplier. If the Purchase Order is so terminated and the supplier is not in default at that time, Benthic will pay the Supplier’s reasonable and documented costs of the work it has carried out prior to termination and all reasonable and documented costs and expenses incurred by the Supplier in having already placed orders before the date of termination with third parties for goods or services that were necessary for fulfilling the Purchase Order. In any event, Benthic will only be liable for such costs and expenses as the Supplier substantiates to Benthic’s reasonable satisfaction.
7.6 If the Purchase Order is terminated under clause 7.3 or clause 7.4, Benthic will not be obliged to make any further payment to the Supplier, and any additional costs and expenses incurred by Benthic in having the Purchase Order completed by a third party in excess of any amounts that Benthic would have paid to the Supplier under the Purchase Order, will be a debt due and payable by the Supplier to Benthic. Under no circumstances will Benthic be liable for any costs, losses (including consequential losses and loss of profits), damages or expenses arising from, or as a result of, termination or suspension of the Purchase Order otherwise than as set out in this clause 7.
7.7 Where goods fail to be suitable for the purpose for which they are required by Benthic, as provided for in 4.1 of these Terms and Conditions, and are composed of material free issued by Benthic to the Supplier, then Benthic will recover from the supplier the cost of that material free issued, notwithstanding that liquidated damages may also be due in the case of late delivery.
8. Price and Payment
8.1 The price(s) payable by Benthic for the Goods and/or Services will be as specified in, or as determined in accordance with, the Purchase Order. The price(s) will be fixed and firm and not subject to any increase without Benthic’s prior written consent. However, any reduction in the Supplier’s published prices for goods or services that are the same as the Goods or Services will be applied to the price(s) payable for the Goods or Services.
8.2 Unless otherwise specified in the Purchase Order, invoices for payment will be submitted to Benthic following delivery of the Goods or performance of the Services and acceptance by Benthic of the Goods or Services. Benthic will make payment of the approved amount within sixty (60) days from receipt of the invoice. All invoices of the Supplier must be in the form of a valid tax invoice.
8.3 The Supplier will be responsible for the payment of all taxes (including any goods and services, value added, consumption or similar taxes), duties and charges payable with respect to the Goods and Services imposed by any jurisdiction. Unless otherwise indicated in the Purchase Order, the price(s) will be deemed to include all such taxes, duties and charges.
8.4 Where any supply (the consideration for which is specifically described in the Purchase Order as “GST (Goods and Services Tax) or VAT (Value Added Tax) or other similar indirect taxes exclusive”) to be made by one party (‘Party A’) to the other party (‘Party B’) under or in connection with the Purchase Order is subject to GST or VAT or other similar indirect taxes, Party B must, at the same time and in the same manner as the GST or VAT or other similar indirect taxes exclusive consideration payable, or to be provided, for that supply, pay to Party A an amount equal to the GST or VAT or other similar indirect taxes payable by Party A in respect of that supply.
8.5 If any payment to be made to a party under or in connection with the Purchase Order is a reimbursement or indemnification of an expense or other liability incurred or to be incurred by that party, the amount of the payment must be reduced by the amount of any input tax credit to which that party is entitled for that expense or other liability, such reduction to be effected before any increase in accordance with clause 8.4.
8.6 Notwithstanding anything to the contrary in the Purchase Order, Party B need not make any payment for a taxable supply made under or in connection with the Purchase Order until Party A has given Party B a tax invoice in respect of that taxable supply.
8.7 All invoices shall be submitted to Benthic for payment or reimbursement within a maximum of ninety (90) days from completion of the Services or supply of the Goods. No invoices shall be paid or reimbursed by Benthic after that period.
9. Dispute Resolution
9.1 If a dispute arises in relation to the Purchase Order, neither party may commence any court or arbitration proceedings relating to the dispute unless the following process has first been complied with:
(a) the party claiming that a dispute has arisen must notify the other party giving details of the dispute;
(b) within one (1) week of receipt of such notice, authorised representatives of the parties must meet and use their best endeavours to resolve the dispute by negotiation;
if the dispute is not resolved within two (2) weeks of such meeting, then the dispute must be referred for mediation if the Purchase Order issuing entity is registered in Australia, to the Australian Commercial Disputes Centre; in Singapore, to the Singapore Mediation Centre; in the USA, to the American Arbitration Association; in the Cayman Islands, to the Cayman Islands Association of Mediators and Arbitrators; in the United Kingdom to the London Court of International Arbitration; and in Brazil to the Brazil-Canada Chamber of Commerce in accordance with their respective Mediation Rules and Guidelines; and
(c) the dispute is not resolved within six (6) weeks after the appointment of a mediator. This clause 9.1 does not limit in any way a party’s right to seek any form of equitable relief including injunctive relief.
9.2 Notwithstanding any dispute, the Supplier will supply under the Purchase Order, and any variation of the Purchase Order, as Benthic notifies, without any effect on Delivery Date(s).
9.3 Nothing in clause 4 or clause 7 prejudices any other rights or remedies that Benthic may have at law or otherwise under the Purchase Order.
10.1 Supplier represents and warrants that it has and will comply with the U.S. Foreign Corrupt Practices Act (“FCPA”) the U.K. Bribery Act 2010 (“UKBA”) and any other applicable anti-bribery and corruption laws (altogether “ABC Laws”), and that, in relation with the Purchase Order or any other business transaction on behalf of Benthic, it will not give, pay, offer, promise, or authorize the payment of money or anything of value (including but not limited to travel, meals, gifts or entertainment), directly or indirectly, to any (i) official, agent, representative or employee of a government or of any department agency, or instrumentality thereof; (ii) political party official, political party or candidate for political office; (iii) official, agent, representative or employee of a public international organization; (iv) Close Family Member of the foregoing or (v) employee of any commercial entity or organization, in order to secure any undue or improper advantage or benefit for it or Benthic in connection with the Purchase Order. For the purpose of this Clause 10.1, “Close Family Member” means the official’s spouse; the official’s spouse’s grandparents, parents, siblings, children and the spouses of any of these people; and any other individual who shares the same household with the official.
10.2 Supplier will refrain from giving Benthic’s employees any gifts, gratuities or anything above a nominal value in any form that would influence the objectivity of their business decisions.
10.3 The violation by Supplier or any of its Affiliates of the above will allow Benthic to terminate the Purchase Order immediately for cause by written notice.
10.4 Supplier shall, for the purpose of compliance with ABC Laws requirements, keep all records in accordance with commonly accepted accounting practices, and shall retain such records for a minimum period of five (5) years following completion of the services, or for such longer period as may be required by applicable law, and for so long thereafter as a dispute may exist between the parties.
11.1 In performing its obligations under the Purchase Order, the Supplier shall and shall ensure that each of its subcontractors shall:
(a) comply with all applicable laws, statutes, regulations in force from time to time including but not limited to the U.K. Modern Slavery Act 2015; and
(b) take reasonable steps to ensure that there is no modern slavery or human trafficking in the Supplier’s or subcontractors supply chains or in any part of their business.
11.2 The Supplier shall notify Benthic as soon as it becomes aware of any actual or suspected slavery or human trafficking in a supply chain which has a connection with this Purchase Order.
SCM-FM-002-8 standard purchase terms and conditions 05492.docx