Purchase Order Terms & Conditions

General
1. These terms apply to any order for the supply of Goods or Services that are described in a Purchase Order placed by a member of the Acusensus Group as the customer (Acusensus) with a Supplier of Supplies in the absence of a specific contract between the Supplier and Acusensus for the supply of such Supplies.
2. Where these terms are applicable, they must be read as in addition to any terms specified in the Purchase Order by the relevant member of Acusensus who is purchasing the Supplies and any attachment to it that is expressly incorporated in writing.
3. If there is any inconsistency between:
  1. a specific contract entered into between the Supplier and Acusensus for the Supplies described under the Purchase Order;
  2. these terms;
  3. the Purchase Order;
  4. any Terms and Conditions added to the Purchase Order; or
  5. any annexures or attachments to the Purchase Order,
    then the first-mentioned terms shall prevail in the order set out.
4. No other terms or conditions apply to a Purchase Order or to the Supplies unless these terms are specially varied or replaced by a specific contract for the order of Supplies. For clarity:
  1. these terms do not apply to a Purchase Order where a specific contract is entered into between Acusensus and the Supplier; and
  2. the parties agree that this Contract replaces any contract to be bound by the Supplier’s standard terms and conditions for provision of the Supplies.

Offer and acceptance
1. Subject to clause 2b., the Supplier is deemed to have accepted a Purchase Order:
  1. if it notifies Acusensus that it accepts the Purchase Order;
  2. if delivers, or indicates that it will deliver, the Supplies described in the Purchase Order; or
  3. at 5.00pm on the next business day following the day on which the Supplier received the Purchase Order (Acceptance Date).
2. If the Supplier is unable or unwilling to accept the Purchase Order, it must notify Acusensus promptly. Any variation to the Purchase Order or the offer of Supplies must be approved by Acusensus in writing before delivery.
3. If Acusensus changes the Purchase Order and any change causes an increase or decrease in the cost of the Supplies, or time required to deliver the Supplies, an equitable adjustment must be made to the Fees which is appropriate to the circumstances.
4. Subject to clause 2b., the Purchase Order once accepted, combined with these terms (if applicable), any terms and conditions in the Purchase Order and/or any separate agreement or attachment expressly incorporated, will form a binding agreement between the parties (Agreement).

Delivery, acceptance and title
1. Unless otherwise specified as such in the Purchase Order, the Supplier must deliver the Supplies as set out in the Purchase Order in accordance with the time and place and in the manner specified in the Purchase Order or otherwise specified by Acusensus and if no time is specified, as soon as practicable and in any event within a reasonable time.
2. Payment of any invoice by Acusensus will not be deemed acceptance of any Supplies. Any delivery of Supplies will be subject to a three-month period of inspection, testing, acceptance or rejection by Acusensus. If Acusensus rejects any Supplies within such three-month period, an equitable adjustment must be made to the Fees to reflect non-delivery (the Supplier must refund Acusensus accordingly).
3. Title and risk in the Goods will pass to Acusensus when they are delivered to Acusensus.

Sub-contracting
1. Except as expressly provided in the Purchase Order, the Supplier may not sub-contract any obligations under this Agreement without the prior written consent of Acusensus.
2. Where the Supplier sub-contracts any of its obligations under this Agreement, the Supplier remains liable for the carrying out and completion of those obligations.

Fees, invoices and tax
1. In consideration for the provision of Supplies under this Agreement, Acusensus agrees to pay to the Supplier the Fees. The Fees are inclusive of:
  1. In consideration for the provision of Supplies under this Agreement, Acusensus agrees to pay to the Supplier the Fees. The Fees are inclusive of;
  2. all delivery charges, including charges for packing, crating, freight and insurance;
  3. all amounts payable for the use (whether in the course of manufacture or use of the Goods or the performance or enjoyment of the Services or the use of the outcomes of the Services) of any Intellectual Property; and
  4. all charges for supply of the Goods or the performance of the Services.
2. The Supplier must not impose any charges (other than the Fees) such as charges for testing, inspection, packing, delivery and insurance.
3. Unless otherwise specified in the Purchase Order, Acusensus agrees to pay the Supplier the Fees within 30 days of receipt and acceptance of a valid invoice by Acusensus (such invoice to be accompanied by such reasonable information as Acusensus may require). Acusensus may withhold any disputed portion of the Fees until the dispute is resolved.
4. If GST is payable in connection with the Supplies to be supplied under this Agreement, then the Supplier irrevocably warrants and agrees that the Fees payable to it under this Agreement and specified in the Purchase Order is the GST inclusive price of those Supplies unless otherwise agreed in the Purchase Order.
5. The Supplier is liable for all taxes arising in connection with this Agreement or any payment under this Agreement. If GST, VAT or any other applicable tax related to the Supplies is payable under this Agreement, then the Supplier irrevocably warrants and agrees that the Fees payable to it under this Agreement and specified in the Purchase Order is included in the relevant price of those Supplies unless otherwise agreed in the Purchase Order. If the Purchase Order indicates that the Price is inclusive of GST, VAT or any other applicable tax and, for any reason, a supply made under this Agreement is not subject to such tax, the amount payable or other consideration to be provided for that supply shall be reduced by the amount of the tax incorrectly added to the Fees.

Warranties
1. it has all rights, title, licences, interests and property necessary to provide the Supplies;
2. it will perform the Services at a high standard with all due skill, care and diligence and engage appropriately qualified personnel to perform the Services;
3. the Supplies will be fit for the purposes intended;
4. if applicable, the Supplies will meet any agreed design and performance criteria and correspond with any sample;
5. the Goods are new, genuine, free from any defects or encumbrances, are of merchantable quality and are fit for their purpose or any other purpose made known (expressly or impliedly) to the Supplier;
6. it is entitled to grant any licence of IPRs to Acusensus under this Agreement;
7. in the Supplies or their delivery / performance by the Supplier or their receipt, use or enjoyment by Acusensus under this Agreement infringes the Intellectual Property Rights of any third party;
8. it will supply to Acusensus all complete, accurate and up-to-date documentation associated with the use of the Supplies;
9. it will supply the Supplies in accordance with all applicable laws and standards; and
10. it will supply Supplies that comply with the Purchase Order.

Liability
1. The Supplier indeminifies all members of the Acusensus Group against all Losses it directly or indirectly sustains or incurs as a result of:
  1. any negligent, unlawful, wilful or fraudulent act or omission of the Supplier, its officers, employees, agents or subcontractors, including any third party claims;
  2. any breach of this Agreement by the Supplier its officers, employees, agents or subcontractors;
  3. any infringement or alleged infringement of any IPRs or moral rights of arising out of its receipt or use of the Supplies (including the provision / delivery by Supplier and / or receipt, use and enjoyment by Acusensus under this Agreement);
  4. death or personal injury of any person to the extent caused by the Supplier;
  5. property damage to the extent caused by the Supplier; or
  6. any breach by the Supplier of clause 9 (Confidential Information).
2. In the event of a claim relating to any actual or alleged infringement of any Intellectual Property by the Supplier, the Supplier must at the election of Acusensus:
  1. procure for Acusensus the right to continue using the affected Supplies free from any infringement;
  2. modify the Supplies so that no member of the Acusensus Group is infringing any Intellectual Property any longer, without causing a loss of functionality or performance;
  3. promptly replace the Supplies with other goods or services free from infringement of any Intellectual Property Rights which have the same or better performance or functionality capabilities than the original Supplies; or
  4. accept the return of the Supplies at the Supplier’s expense and promptly refund Acusensus all monies paid in connection with the affected Supplies.
3. No member of the Acusensus Group will be liable for any Consequential Loss.

Intellectual Property Rights
1. Subject to clause 8b., all rights, title and interest in any IPRs created in providing the Supplies (Project IPRs) will be owned by Acusensus, and to the extent needed, the Supplier hereby assigns all rights, title and interest it may have now or in the future in those Project IPRs to Acusensus.
2. The IPRs owned by a party prior to the date of this Agreement (Background IPRs) remain with the contributing party.
3. The Supplier grants to Acusensus a perpetual, irrevocable, royalty-free worldwide, non-exclusive licence (including a right of sub-licence) to use, reproduce, modify, publish, adapt, or communicate to the public and exploit the Supplier’s Background IPRs in conjunction with the Supplies, and the Project IPRs. The Supplier must provide Acusensus will all necessary documentation and materials to take advantage of this licence.
4. The Supplier will not furnish the name, trade mark or proprietary indicia of Acusensus as a reference, or utilise the name, trade mark or proprietary indicia of Acusensus in any manner.
5. If a third party claims, or Acusensus reasonably believes that a third party is likely to claim, that all or part of the Supplies infringe their IPRs or breach their confidence (Impacted Supplies), the Supplier must, in addition to the indemnity under this Agreement and to any other rights that Acusensus may have against it, promptly, at the Supplier’s expense:
  1. use its best efforts to secure the rights for Acusensus to continue to use the affected Impacted Supplies free of any claim or liability for infringement; or
  2. replace or modify the Impacted Supplies so that the Impacted Supplies or the use of them does not infringe the IPRs of any other person without any degradation of the performance or quality of the affected Impacted Supplies.

Confidential Information
1. The Supplier must:
  1. keep any Confidential Information disclosed to it confidential;
  2. only disclose to the Supplier’s officers, employees or agents, or subcontractors of the Supplier (subject to clause 4) who have a need to know relevant Confidential Information for the purposes of this Agreement, but only to the extent that each has a need to know and before disclosure, have been directed by the recipient to keep that Confidential Information confidential;
  3. ensure its officers, employers, agents and subcontractors hold in confidence and do not disclose Confidential Information disclosed to them; and
  4. not deal with Confidential Information in any way that might prejudice its confidentiality.
2. These obligations continue indefinitely beyond the end of this Agreement, but do not extend to disclosures:
  1. required by law or the rules of a relevant stock exchange to be disclosed;
  2. where the relevant information is part, or becomes part, of the public domain otherwise than by breach of this Agreement.
3. The Supplier agrees that:
  1. it will not collect, use, disclose, store, transfer or otherwise handle Personal Information that it collects in connection with this Agreement except to the extent that it is reasonably necessary for the performance of its obligations or under this Agreement and only in accordance with the legislation applicable to that Personal Information based on the relevant jurisdiction(s) that apply to this Agreement and any other relevant privacy legislation; and
  2. it will not transfer or disclose any such personal information to any recipient outside of the jurisdiction where it was collected and is applicable to that Personal Information based on the relevant jurisdiction(s) or permit any person located outside Australia to access or receive any such personal information without Acusensus’ written consent.
4. The Supplier must immediately notify Acusensus if the Supplier becomes aware of a breach or possible breach of any of its obligations under this clause 9.

Insurance
1. In addition to the insurance that the Supplier is required to maintain by legislation (including workers compensation and compulsory third party motor vehicle insurance), the Supplier must have and maintain insurance cover sufficient to cover any loss or costs that may be incurred and for which the Supplier is liable in connection with the Supplies or this Agreement, including, as applicable based on the relevant Supplies to be delivered:
  1. for the provision of Goods and services, public liability insurance of $10 million for each occurrence and unlimited in the aggregate;
  2. for the provision of Goods, products liability insurance of $10 million for each occurrence; and
  3. for the provision of Services, professional indemnity insurance of $10 million per annum for the period from the date of the Purchase Order until six years after the date of termination or expiration of this Agreement,
    including the following contractual endorsements:
  4. a waiver of subrogation; and
  5. contractual liability.
2. The Supplier must ensure that any sub-contractor engaged by it is insured to a level commensurate with the insurance obligations of the Supplier under this Agreement.
3. The Supplier must provide Acusensus with a certificate of currency from its insurance broker certifying that it has the insurance required under this Agreement.

Termination
1. Without limiting any other rights or remedies that Acusensus may have against the Supplier, Acusensus may terminate this Agreement by written notice to the Supplier:
  1. if the Supplier breaches a term of this Agreement and fails to remedy the breach within 14 days after receiving notice requiring to do so (or the Supplier breaches a term of this Agreement which is not capable of remedy); or
  2. subject to Ipso Facto Stay, if the Supplier is or becomes subject to proceedings which may result in the Supplier becoming bankrupted, wound up, under voluntary administration or subject to the control of a receiver or receiver and manager.
2. Acusensus may at any time before delivery change or cancel the Purchase Order.
3. Acusensus may at any time prior to the delivery of the Goods:
  1. terminate this Agreement with respect to those Goods without incurring any liability, except that the Supplier may recover its reasonable and demonstrable direct costs incurred up to the date of termination provided that the Supplier mitigates any such costs or expenses; or
  2. require the Supplier to substitute any items of Goods with other goods that are available from the Supplier in which case Acusensus’ liability is limited to the difference (if any) in the Fees and the standard price of the substituted goods.
4. Termination of this Agreement under this clause 11 does not affect any accrued rights or remedies of a party.

Miscellaneous
1. Each party agrees to execute such agreements, deeds and documents and do or cause to be executed or done all such acts and things as may be reasonably necessary to give effect to this Agreement. The Supplier agrees to cooperate and work with third party suppliers of Acusensus to the extent necessary to give effect to this Agreement.
2. Acusensus reserves the right to retain other persons or entities to supply the Supplies, including but not limited to any part of the Supplies.
3. The Supplier may only assign its rights or novate its rights and obligations under this Agreement with the prior written consent of Acusensus.
4. A provision of this Agreement or a right created under it may not be waived or varied except in writing, signed by the party or parties intended to be bound. A failure of a party to exercise a right arising out of this Agreement does not constitute a waiver of that right.
5. The Supplier must comply with any applicable Acusensus policies and procedures as notified by Acusensus to the Supplier from time to time.
6. Waiver of any provision of or right under this Agreement must be in writing signed by the party entitled to the benefit of that provision or right, and is effective only to the extent set out in the written waiver.
7. Acusensus may set off any amount it owes the Supplier against any amount owing, or claimed by Acusensus to be owing, by the Supplier to Acusensus under this Agreement.
8. This Agreement may only be varied in writing and signed by each party.
9. This Agreement does not create a relationship of employment, agency or partnership between the Supplier and Acusensus.
10. A term or part of a term of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining terms or parts of the term continue in force.
11. Clauses 6 (Warranties), 7 (Liability), 9 (Confidential Information), 10 (Insurance), 12g. (set off), this clause 12k. and any clause which by its nature survives any expiry or termination of this Agreement will survive such expiry or termination of this Agreement.
12. This Agreement constitutes the entire agreement between the parties in connection with its subject matter.
13. This agreement will be governed by, and construed in accordance with, the following jurisdictions based on where the Purchase Order was placed and the Supplier irrevocably and unconditionally consents to the exclusive jurisdiction of the relevant courts of the jurisdiction specified:
  1. where the Purchase Order relates to Supplies in Australia, the laws of Victoria;
  2. where the Purchase Order relates to Supplies in the United Kingdom, the laws of England and Wales; and
  3. where the Purchase Order relates to Supplies in the United States of America, any applicable federal laws of the United States of America will apply and the courts in Clarke County, Nevada will have jurisdiction but with federal law applicable and in the absence of any applicable federal law, the laws of Nevada.

Definitions and interpretations
1. In this Agreement, unless context otherwise requires:
  1. Acusensus Group means Acusensus Limited or any Related Body Corporate (as that term is defined in the Corporations Act);
  2. Agreement has the meaning given in clause 2d.;
  3. Background IPRs has the meaning given in clause 8b.;
  4. Confidential Information means all data and/or information in any form relating to the business or affairs of any member of the Acusensus Group which is disclosed, communicated or delivered to, learnt or developed by or which otherwise comes to the knowledge of or into the possession of, the Supplier under or in connection with this Agreement relating to the operations, business, research and technology of the Acusensus Group. For clarity, Confidential Information includes Personal Information. Confidential information does not include any information which:
    1. is publicly available at the date of this Agreement;
    2. becomes publicly available subsequent to the date of this Agreement without breach of this Agreement;
    3. a party obtained from a third party without breach by that third party of any obligation of confidence concerning that Confidential Information; or
    4. was already in the party’s possession (as evidenced by written records) when provided by or on behalf of the other party;
  5. Consequential Loss means an indirect or consequential loss (not being a loss which arises naturally as a result of a breach of this Agreement or other event the subject of the relevant claim) and the following will be considered indirect or consequential losses within the meaning of this definition:
    1. a loss of income, profits or revenue or the loss of expectation of income, profits or revenue;
    2. a loss of anticipated savings,
    3. a loss of opportunity or business;
    4. a loss of goodwill; and
    5. a loss or corruption of data.
  6. Corporations Act means the Corporations Act 2001 (Cth);
  7. Customer or Acusensus means the person in the Acusensus Group named on the Purchase Order as the customer;
  8. Fees means the total fees stated in the Purchase Order for the Supplies;
  9. Goods means all the articles, goods, material or parts thereof (if any) referred to in the Purchase Order;
  10. GST and GST Law have the meanings given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
  11. Insolvency Event means the Supplier ceases to be able to pay its debts as they become due, the Supplier ceases to carry on business, any step is taken to by a mortgagee to take possession or dispose of any part of the Supplier’s assets or business, any step is taken to appoint a receiver, manager, liquidator, trustee in bankruptcy or administrator with respect to the Supplier or any analogous event occurs;
  12. Intellectual Property Rights or IPR means all registered and unregistered intellectual property rights in relation to the present and future copyright, patents, trade marks, designs, trade secrets, know-how, confidential information, other intellectual property as defined in article 2 of the Convention establishing the World Intellectual Property Organisation 1967 and any application for any of the foregoing and any rights of a similar nature;
  13. Ipso Facto Stay means any limitation on enforcement of rights or self-executing provisions in a contract, agreement or arrangement pursuant to sections 415D, 415F, 415FA, 434J, 434K, 434L, 434LA, 451E, 451G or 451GA of the Corporations Act;
  14. Losses means actions, claims, liabilities, expenses, losses, damages and costs (including but not limited to legal costs on a full indemnity basis, whether incurred by or awarded against a party) and consequential and indirect losses and damages including those arising out of any third party claim.
  15. Personal Information has the meaning given in the applicable legislation in place based on the location of the member of the Acusensus Group who placed the Purchase Order.
  16. Project IPRs has the meaning given in clause 8a.;
  17. Purchase Order means the purchase order form provided to the Supplier with this Agreement and any Specifications or other documents attached to, or incorporated by reference in, the Purchase Order;
  18. Specifications means any specifications, descriptions or statements of requirements of Acusensus in respect of the Supplies, whether part of, attached to, or incorporated by reference in, the Purchase Order, or otherwise made known to the Supplier;
  19. Services means all the services (if any) referred to in the Purchase Order;
  20. Supplier means the person named on the Purchase Order as the supplier of the Supplies, including that person’s successors and permitted assigns and where the Supplier comprises more than one person, those persons jointly and severally; and
  21. Supplies means Goods and/or Services, as applicable based on the relevant Purchase Order.
2. In this Agreement:
  1. references to the singular includes the plural and vice versa; and
  2. reference to a person includes a body politic, a body corporate and a natural person;
  3. anything after the word including or similar expression does not limit what is included;
  4. a reference to $ or dollar is in the currency in which the relevant Purchase Order was placed based on the location of the member of the Acusensus Group who placed the order; and
  5. headings are for guidance only and do not affect the interpretation of this Agreement.