1. Application of terms
1.1. Unless Australian Financial Complaints Authority Limited ABN 38 620 494 340 (AFCA), and the supplier to whom AFCA issues a purchase order containing a hyperlink to these terms and conditions (Supplier), enter into a separate written agreement concerning the supply of goods/materials and/or services set out in the purchase order (Supply):
1.1.1. the Supplier is deemed to have agreed to be bound by these terms and conditions by providing the Supply; and
1.1.2. these terms and conditions and the terms of the purchase order will apply to the Supply, notwithstanding the issue to AFCA by the Supplier of and/or purported reliance on any other terms or conditions.
2. Supply
2.1. The Supplier must ensure the Supply:
2.1.1. complies with the specifications set out in the purchase order, is fit for its intended purpose, and, insofar as the Supply consists of goods/materials, is of merchantable quality and not defective;
2.1.2. is delivered in a proper, timely and efficient manner using that standard of care, skill, diligence, prudence and foresight that would reasonably be expected from a prudent, expert and experienced provider of services and goods/materials that are similar to the Supply; and
2.1.3. is provided in good faith and in compliance with all applicable laws, industry standards and AFCA policies.
2.2. From time to time, AFCA may, acting reasonably, direct the Supplier in writing as to the way the Supply is to be provided.
2.3. The Supplier must provide the equipment and personnel necessary to provide the Supply.
2.4. If the Supplier enters any premises of AFCA, the Supplier must, and must ensure that its personnel, use reasonable endeavours to protect people and property, prevent nuisance, act in a safe and lawful manner and abide by AFCA’s security or other requirements.
3. Remuneration
3.1. AFCA must pay the Supplier for the Supply (Fee) in accordance with these terms and conditions and the purchase order or as otherwise agreed in writing between the parties.
3.2. Unless agreed in writing or stated in the purchase order to the contrary, the Fee is fixed and all-inclusive, and includes:
3.2.1. the Supplier’s remuneration for any ancillary expenses incurred by the Supplier in connection with the Supply such as those relating to the Supplier’s personnel;
3.2.2. any packaging, transport, insurance, loading, unloading and storage costs incurred in relation to the Supply.
3.3. The Supplier may issue an invoice to AFCA for a Fee only if:
3.3.1. the relevant Supply has been provided and accepted by AFCA (acting reasonably);
3.3.2. the Fee has been calculated in accordance with the purchase order and these terms and conditions;
3.3.3. the invoice is a valid tax invoice, and includes:
(a) any GST payable by AFCA (should the Supply be a ‘taxable supply’ under GST legislation);
(b) the account details of the Supplier’s bank (or other authorised deposit-taking institution) account within Australia into which AFCA may pay the invoice; and
(c) sufficient details of the relevant Supply; and
3.3.4. the invoice is accompanied by any supporting documentation required by AFCA (acting reasonably).
3.4. AFCA must pay an invoice properly issued to it by the Supplier in accordance with these terms and conditions within 30 days of receipt.
3.5. If AFCA disputes any part of an invoiced amount, it may withhold that amount from payment and provide the Supplier with notice in writing of the fact of, and grounds for, that dispute. The parties will endeavour to resolve such a dispute in accordance with the process outlined in clause 16.
3.6. Payment of an invoice by AFCA for a Supply will be received on account. Such receipt does not constitute an admission or other evidence, and cannot found an inference, that the Supply complies with these terms and conditions. AFCA reserves its right to dispute the validity of an invoice notwithstanding AFCA’s payment of that invoice.
3.7. Notwithstanding AFCA’s acceptance of or payment with respect to a Supply, AFCA reserves its rights as against the Supplier in the event the Supply is defective or otherwise breaches the requirements in these terms and conditions.
4. Title and risk
4.1. Title in any goods/materials provided as part of a Supply will pass to AFCA upon payment of the relevant Remuneration.
4.2. Risk in any goods/materials provided as part of a Supply will pass to AFCA on delivery to AFCA in accordance with these terms and conditions.
5. Warranties
5.1. The Supplier warrants that:
5.1.1. each representation made by the Supplier to AFCA as to the Supply is accurate, complete and not likely to mislead or deceive AFCA to the best of the Supplier’s knowledge after due enquiry;
5.1.2. each Supply comes with guarantees that cannot be excluded under the Australian Consumer Law;
5.1.3. it has the right to sell and transfer title to and property in the goods/materials to AFCA;
5.1.4. it has the right to use all intellectual property rights necessary for the Supply, and to confer such rights on AFCA as are reasonably necessary for AFCA to take the benefit of the Supply;
5.1.5. it and its personnel do not hold any office or possess any property, are not engaged in any business or activity and do not have any obligations whereby duties or interests are or might be created in conflict with or might appear to be created in conflict with its obligations under this agreement.
6. Liability and indemnity
6.1. The operation of Part IVAA of the Wrongs Act 1958 (Vic), Part 4 of the Civil Liability Act 2002 (NSW) and other like legislation is excluded to the extent permitted by Law.
6.2. The Supplier indemnifies and holds AFCA and its personnel harmless from and against any loss, damage, claim, action or expense (including legal expense) which any of them suffers or incurs arising out of or in connection with:
6.2.1. the Supplier’s breach of these terms and conditions;
6.2.2. a claim by any personnel of the Supplier for employee entitlements; and
6.2.3. a claim by a third party that AFCA’s use of a Supply infringes that party’s intellectual property rights.
6.3. The indemnity in clause 6.2 will not apply to the extent AFCA caused or contributed to the loss.
7. Intellectual property
7.1. The Supplier grants to or shall promptly secure for AFCA a non-exclusive, perpetual, royalty-free licence to use any intellectual property rights in relation to each Supply to the extent necessary to allow AFCA the full use and enjoyment of that Supply.
7.2. The Supplier must not use the AFCA name, an AFCA brand or logo, or any other of AFCA’s intellectual property rights without first obtaining AFCA’s consent in writing.
7.3. For the avoidance of doubt, the parties’ respective intellectual property rights held prior to the Supply or otherwise developed independently of this agreement are not effected by this clause 7.
8. Insurance
8.1. The Supplier must (and must ensure that any sub-contractors) obtain and maintain:
8.1.1. any insurances required by law such as workers’ compensation insurance; and
8.1.2. insurance coverage sufficient to cover any loss, liability or other costs that may be incurred by the Supplier, or for which the Supplier may be liable, in connection with the Supply.
8.2. On request, the Supplier must provide AFCA with evidence of the currency of the insurances required under clause 8.1 in the form of certificates of currency.
8.3. The Supplier must promptly notify AFCA in writing if:
8.3.1. any policy of insurance required under clause 8.1 is cancelled, varied or if the Supplier defaults in its obligation to pay premium; and
8.3.2. any claim made by the Supplier against such a policy of insurance which relates to the Supply or where the circumstances of such a claim may affect a Supply.
9. Confidentiality and privacy
9.1. ‘Confidential Information’ means any technical, scientific, commercial, financial or other information of, about or in any way related to, a party, including any information designated by a party as confidential, which is disclosed, made available, communicated or delivered to the other party, but excludes information:
9.1.1. which is in or which subsequently enters the public domain other than as a result of a breach of these terms and conditions;
9.1.2. which the party can demonstrate was in its possession prior to the date of these terms and conditions;
9.1.3. which the party can demonstrate was independently developed by it; or
9.1.4. which is lawfully obtained by the party from another person entitled to disclose such information.
9.2. The parties must not disclose or otherwise make available the Confidential Information of the other to any other person except as required by law or under an express term of these terms and conditions.
9.3. The parties must take all steps and do all things reasonably necessary to safeguard the confidentiality of the Confidential Information of the other party, including implementing and maintaining appropriate cyber security measures.
9.4. A party may disclose the Confidential Information of the other party to those of its personnel who have a need to know that information for the purposes of the Supply and who owe confidentiality obligations to that party which encompass the Confidential Information.
9.5. If a party is compelled by law to provide the Confidential Information of the other party, it must promptly notify the other party in writing and limit the Confidential Information disclosed to the minimum required by law.
9.6. The Supplier must only use any personal information supplied by AFCA to the extent necessary to provide the Supply, and not do anything which may cause AFCA to breach its obligations under a privacy law.
9.7. If the Supplier becomes aware or suspects that:
9.7.1. there has been the loss of, unauthorised access to or disclosure of personal information or Confidential Information pertaining to AFCA, its personnel, members or customers; or
9.7.2. the Supplier has breached any of its obligations under this clause 9;
(a ‘Data Incident’), the Supplier must promptly notify AFCA and provide all relevant details of that Data Incident.
9.8. The Supplier must co-operate with AFCA in relation to the remediation and management of any Data Incident.
9.9. The Supplier consents to AFCA publishing or otherwise making available information in relation to the Supplier and the Supply as may be required for AFCA to take the benefit of the Supply.
10. Personnel and sub-contracting
10.1. The Supplier, in relation to those personnel involved in a Supply:
10.1.1. must pay all entitlements owing to such personnel as and when they fall due;
10.1.2. is responsible for withholding and remitting any applicable taxes such as income tax; and
10.1.3. must ensure that it discharges its obligations to keep records, lodge returns, and provide information to any statutory authorities.
10.2. The Supplier must not subcontract a Supply or other obligation under these terms and conditions to any other party without the prior written consent of AFCA (which may be given or withheld in AFCA’s absolute discretion).
10.3. The Supplier will not, as a result of any sub-contracting arrangement, be relieved from the performance of any obligation under these terms and conditions, will be liable for all acts and omissions of a sub-contractor as though they were the actions of the Supplier itself, and will remain fully liable for each Supply notwithstanding that the provision of that Supply has been sub-contracted.
11. Termination
11.1. Without limiting such of AFCA’s rights or remedies as may otherwise be available (including under clause 6.2), if the Supplier materially breaches any terms or conditions:
11.1.1. AFCA may terminate this agreement if, after giving the Supplier 14 days’ notice in writing of the breach, the Supplier fails to remediate the breach;
11.1.2. AFCA may return to the Supplier any defective goods/materials. If that occurs and the goods/materials have been paid for (in whole or part), the Supplier must promptly refund that payment. Otherwise AFCA is relieved of any liability to make payment for those goods/materials;
11.1.3. AFCA may rectify the breach with such costs of rectification to be borne by the Supplier;
11.1.4. the Supplier must compensate AFCA for its loss arising out of the breach.
11.2. The parties may terminate this agreement at any time for convenience upon giving 45 days’ notice in writing to the other.
11.3. If requested in writing by AFCA, the Supplier must return or delete/destroy (at AFCA’s option) all Confidential Information, personal information and other materials provided to it by AFCA.
12. Miscellaneous
12.1. The Supplier must comply with all anti-corruption and anti-money laundering Laws and must not engage in any corrupt, fraudulent, collusive or coercive practices in relation to the Supply.
12.2. The Supplier must:
12.2.1. comply with all modern slavery Laws and AFCA policies, promptly notify AFCA as soon as it becomes aware of a potential, suspected or actual breach of such laws or policies, and co-operate in good faith with AFCA in investigating any circumstances relevant to any potential, suspected or actual breach of such laws or policies;
12.2.2. ensure that it and its personnel do all things necessary to mitigate and reduce modern slavery risks in its operations and supply chains;
12.2.3. implement due diligence procedures to ensure that there is no, or there is no risk of, slavery or human trafficking or similar types of conduct in its supply chains; and
12.2.4. co-operate with AFCA in relation to any supplier surveys or other initiatives undertaken by AFCA to address modern slavery risks in AFCA’s supply chain.
12.3. This agreement is governed by and is to be construed in accordance with the laws applicable in Victoria. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.
12.4. AFCA may request, and the Supplier must provide, any information reasonably required by AFCA to assess the Supply and the Supplier’s discharge of its obligations under these terms and conditions. The Supplier must reasonably co-operate with AFCA in the conduct of any audit or inspection of the Supplier in connection with this agreement.
12.5. The Supplier acknowledges that:
12.5.1. it provides any services including in the Supply as an independent contracted service provider;
12.5.2. this agreement does not create a relationship of employer and employee, principal and agent, or partnership between AFCA and the Supplier or its personnel; and
12.5.3. This agreement does not give the Supplier or any of its personnel authority to bind AFCA.
