Purchase Order Terms and Conditions

Australia and New Zealand

Purchase Order Terms and Conditions

Australia and New Zealand



(1) (All orders subject to these Conditions) By delivering Goods or providing Services to Treasury Wine Estates (TWE) from time to time, the Supplier is deemed to have accepted and to be bound by these Conditions and the Purchase Order.

(2) (These Conditions prevail) Other than in circumstances where the parties have executed a written contract (in which case the terms of that written contract will prevail to the extent of any inconsistency with these Conditions), these Conditions prevail over any other alternative terms of supply, even if those alternative terms of supply provide otherwise.

(3) (Standard of supply) The Supplier must ensure all Goods and Services supplied to TWE:
(a) are manufactured, grown, supplied and provided (as the case may be:
i. with all due care and skill and in accordance with TWE’s reasonable directions;
ii. in a proper, professional and efficient manner by suitably qualified staff, using that standard of skill, diligence, prudence and foresight that would be reasonably expected from a prudent, expert and experienced manufacturer and/or supplier of products or services (as the case may be) which are similar to the Goods or Services;
iii. in compliance with the requirements of all relevant laws, statutes, regulations, permits, licenses and codes;
(b) meet or exceed any specifications or other requirements which TWE provides the Supplier, from time to time, including those set out in the Purchase Order (if relevant) (the "Specifications"); 
(c) are of Acceptable Quality; and 
(d) are consistent with samples (if any) provided to TWE by the Supplier.

(e) (Delivery) The Supplier must deliver the Goods and supply the Services in accordance with the requirements of, and by the times specified in, the Purchase Order. Each delivery of Goods or Services must comply with any packaging, labelling, delivery or other instructions given by TWE. If the Supplier fails to deliver the Goods or supply the Services in accordance with these Conditions, TWE may cancel the Purchase Order and refuse to accept the relevant Goods/Services and may, on giving the Supplier written notice, source replacement Goods or Services from a third party. 

(f) (Property in Goods) Risk and title in the Goods passes to TWE upon delivery to a TWE site or collection by TWE (as the case may be). Property in TWE Goods (if any) remains with TWE at all times and the Supplier holds TWE Goods as bailee. The Supplier must not claim or attempt to enforce any lien or other charge or encumbrance over TWE Goods, nor will the Supplier have any rights to sell or dispose of TWE Goods.

(g) (Bill to Address) The Supplier must send invoices for payment by TWE to the email address notified by TWE to the Supplier from time to time.

(h) (Payment) TWE will pay the Supplier the Purchase Price by electronic funds transfer (or other payment method notified in writing by TWE) within 65 days from the end of the month in which a valid tax invoice is received from the Supplier via email to APinvoices.anz@tweglobal.com, except where TWE disputes the invoice or exercises its right to withhold payment in accordance with clause 8 or is required to withhold an amount in accordance with clause 11 TWE will not be obliged to pay invoices that are issued by the Supplier more than 180 days after the relevant Goods or Services have been delivered or performed, unless required by applicable law. Except as provided by this clause 7, there will be no increase in the Purchase Price for any reason unless this is agreed to by TWE in writing. Unless otherwise stated in the Purchase Order, the Purchase Price is inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the Goods or Services to the delivery address nominated by TWE.

(8) (Rejection after delivery) If TWE considers that all or any part of the Goods delivered to it by the Supplier do not comply (in whole or in part) with clause 3, TWE may reject all or any part of those Goods ("Rejected Goods") by written notice to Supplier giving reasons for such rejection ("Rejection Notice"). TWE may return or destroy the Rejected Goods at its sole discretion and at the Supplier’s risk and expense. TWE is not obliged to pay for Rejected Goods and may withhold payment of any amount otherwise due to the Supplier for the Rejected Goods. If TWE has already paid the Supplier for the Rejected Goods, TWE may elect for the Supplier to refund to TWE the amount that has been paid for those Rejected Goods. If TWE rejects Goods in accordance with this clause, the Supplier must, upon TWE's request, deliver replacement Goods that comply with clause 3 ("Replacement Goods") within the time frame agreed between by the parties.

(9) (Reimbursement of costs) The Supplier must reimburse TWE upon demand for all reasonable costs incurred by TWE in:
(a) returning the Rejected Goods to the Supplier (including storage and transport costs); and
(b) destroying Rejected Goods and all associated costs (including transport and storage costs).

(10) (Cancellation) TWE may cancel a Purchase Order (or any part of a Purchase Order) by giving written notice to the Supplier at any time before the Goods are dispatched or the Services are supplied to TWE. If this occurs, the Supplier must do everything possible to mitigate any costs incurred due to TWE’s cancellation. TWE’s liability will be limited to any direct, reasonable costs incurred by the Supplier prior to cancellation that are documented to TWE’s reasonable satisfaction.  
(11) (Set off) TWE may set-off any money payable by the Supplier to TWE under this Agreement against any amount payable by TWE to the Supplier under this or any other Agreement.

(12) (Withholding tax) Notwithstanding any other clause, if a law requires TWE to deduct an amount in respect of tax from any amount payable to the Supplier ("Fee"), TWE will deduct the amount of the tax from the Fee and remit the tax deducted to the relevant authority. TWE will pay the Fee less the tax deducted to the Supplier in full satisfaction of the Fee otherwise payable. TWE will exercise its best endeavours to obtain a receipt from the relevant authority for the tax paid and provide that receipt to the Supplier.

(13) (GST)

(a) The recipient of a taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply subject to the recipient receiving a valid Tax Invoice in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with this Agreement. This clause does not apply to taxable importations.

(b) If an Adjustment Event occurs in relation to any taxable supply, the supplier must provide an Adjustment Note to the recipient within 28 days.

(c) Where the supplier and recipient agree, the recipient may issue Recipient Created Tax Invoices and Adjustment Notes.

(d) Words and expressions which are not defined in this document but which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 have that same meaning.

(14) (Supplier's indemnity) The Supplier indemnifies TWE, its related bodies corporate (as defined in the Corporations Act 2001(Cth)) and each of their representatives (the "Indemnified Parties") from, and against, all loss and liability incurred or paid by the Indemnified Parties as a result of or in connection with:

(a) any wilful, unlawful or negligent act or omission of the Supplier or its representatives (including, without limitation, its agents and sub-contractors);

(b) a breach or a failure or delay in the performance of the terms of these Conditions by the Supplier or its representatives (including, without limitation, its agents and sub-contractors); and

(c) a product recall or defective Goods caused or contributed to by the acts or omissions of the Supplier or its representatives (including, without limitation, its agents and sub-contractors).

This indemnity is in addition to any statutory rights or remedies that TWE may have against the Supplier. For the purposes of this clause, 'defective Goods' includes Goods which have not been manufactured strictly in accordance with the Specifications or are otherwise not of Acceptable Quality.

(15) (Termination rights) Without prejudice to any and all other remedies which  a party may have at law or in equity,  either party may immediately terminate these Conditions upon notice to the other party if:

(a) the other party fails to perform or observe any of the terms of these Conditions as they apply to them and fails to remedy such breach within 14 days after the giving of notice  to remedy that failure;

(b) a party breaches any material obligation under these Conditions which is not capable of remedy;

(c) a party becomes insolvent or makes an assignment for the benefit of its creditors;

(d) a party has a receiver, receiver and manager, administrator, investigator or liquidator appointed over all or any of its assets or if an order is made or a resolution passed for the winding up of that party; or

(e) a party discontinues business or ceases to do business so as not to be able to properly give effect to these Conditions.

In addition, TWE may immediately terminate these Conditions upon notice to the Supplier if the Supplier repeatedly fails to supply the Goods or Services in conformity with the Specifications or these Conditions.

If these Conditions are terminated in accordance with this clause, the Supplier must make available to TWE all Goods paid for by TWE (including any TWE Goods) within their control or possession. The Supplier grants TWE a licence to enter any premises on which such goods are situated.

(16) (Supplier's warranties) The Supplier warrants that:

(a) it has the requisite knowledge, skill and expertise to supply the Goods or Services in accordance with these Conditions;

(b) it is able to pass good title to the Goods to TWE; and

(c) it has full capacity and all necessary licences, permits and consents to enter into these Conditions and to supply the Goods or Services.

The warranties above are in addition to any representation, warranty or guarantee given by the Supplier in respect of the Goods or Services, or any representation, warranty, guarantee or other term implied or imposed by the law.

(17) (Insurance) During any period in which the Supplier provides Goods and Services to TWE, the Supplier must take out and maintain appropriate levels of workers compensation, product liability, public liability and professional indemnity insurance cover (where relevant) with a reputable insurer to adequately cover its exposure in supplying the Goods or Services. 

(18) (Confidentiality) Each party and its representatives must not, without the written consent of the other party:

(a) use the other party's Confidential Information other than for the purposes of performing its obligation or exercising its rights under these Conditions; or

(b) disclose the other party's Confidential Information to any person

For the purposes of this clause, 'Confidential Information' means the terms of these Conditions, any information, documentation, image or items that are designated by a party as confidential, any information of a confidential character which has been communicated to the other party and any trade secret, manufacturing process, formulae or any information relating to the business affairs, accounts work, marketing plans, sales plans, prospects, research, management, financing, products, inventions, designs, processes and any data bases, data surveys, specifications, drawings, records, reports, software or other documents, material or other information whether in writing or otherwise concerning a party or any of their customers or suppliers to which the other party gains access or which one party has prepared for, or provided to, the other, whether before, during or after the period in which the Supplier provides Goods and Services to TWE.

(19) (Intellectual Property) Any intellectual property rights or other information or data provided to the Supplier by TWE (or paid for by TWE) remains the property of TWE at all times and must only be used by the Supplier for the purposes of providing the Goods or Services to TWE. All intellectual property rights arising as a result of the provision of any Services to TWE under this Agreement (including intellectual property rights in reports, documents and all other deliverables the Supplier produces for TWE) vests in TWE on creation and the Supplier now assigns to TWE all such intellectual property rights (including those subsisting in the future). The Supplier warrants that the supply of Goods or Services will not infringe any third-party intellectual property rights. The Supplier will indemnify TWE from and against any loss, claims, liability, damages, costs and expenses incurred by TWE as a result of or in connection with any infringement or unauthorised use of third party intellectual property arising from the use of Goods or Services provided under these Conditions. The Supplier will execute all documents and do all acts or things reasonably required by TWE for the purpose of giving effect to this clause 19.

(20) (Obligations to continue) The obligations of each party under clauses 14 and 18 and 20 will survive expiration or termination of these Conditions and will be enforceable at any time at law or in equity and will continue to the benefit of and been enforceable by the other party.

(21) (Waiver and amendment) No failure or delay in exercising any right of the Supplier under these Conditions shall operate as a waiver of such right. TWE reserves the right to amend these Conditions from time to time. Such amended Conditions shall supersede all Conditions previously issued by TWE.

(22) (Relationship) The parties agree that neither party has any authority to make any representations on behalf of the other party and that no partnership, joint venture, agency or other relationship is formed between the parties to these Conditions.

(23) (Probity) While providing the Goods and/or Services to TWE, the Supplier must not, and must ensure that its representatives do not, engage in any activity likely to compromise the Supplier or its representatives' ability to perform their obligations under these Conditions fairly and independently. Should a conflict of interest or a potential conflict of interest exist or arise, the Supplier must immediately advise TWE and do everything in its power to remedy the conflict.

(24) (No assignment) The Supplier may not assign or transfer its interest in these Conditions without TWE’s prior written consent (which may be withheld in TWE’s absolute discretion).

(25) (No sub-contracting) The Supplier may not sub-contract the performance of its obligations under these Conditions without the prior written consent of TWE (which may be withheld in TWE's absolute discretion). If TWE provides such consent, the Supplier acknowledges that it is liable for the acts and omissions of every subcontractor (and its employees, agents and subcontractors) as if they were actions of the Supplier. 

(26) (Privacy) Any personal information collected by the Supplier as a result of the provision of Goods or Services to TWE or otherwise collected in connection with a Purchase Order must only be used by the Supplier for the purposes of providing such Goods or Services to TWE and for no other purpose. The Supplier must comply with any relevant data protection or privacy legislation (including the Australian Privacy Principles and the Privacy Act 1988 (Cth), even if the Supplier is not directly bound by legislation to comply with them. The Supplier must promptly notify TWE of any actual or potential privacy breach, request, complaint or regulatory action that Supplier becomes aware of in connection with any personal information collected or accessed by the Supplier as a result of the provision of Goods or Services to TWE.

(27) (Safety) The Supplier, its employees and agents will (and the Supplier agrees to ensure that any approved sub-contractors will) at all times when on TWE sites comply with any TWE rules, regulations or policies notified to the Supplier including those in relation to on-site induction and site sign-in/sign-out procedures, biosecurity requirements or occupational health, safety and environmental practices and policies.

(28) (Force Majeure) Neither party is liable for any failure to perform or delay in performing its obligations under these Conditions to the extent that such failure or delay is due to anything beyond that party’s reasonable control (“Force Majeure Event”). For the avoidance of doubt, an industrial dispute affecting the Supplier’s business is not a Force Majeure Event.

(29) (Entire understanding) Subject to clause 2 of these Conditions, these Conditions embody the entire understanding and agreement between the parties as to the subject matter of these Conditions and supersede all prior arrangements, understandings and agreements.

(30) (Governing law) These Conditions are governed by and will be construed in accordance with the laws of Victoria, Australia.

(31) (Anti-bribery) The Supplier will not offer or pay, directly or indirectly, money or anything of value for or on behalf of TWE to a Government Official for the purpose of obtaining or retaining TWE’s business or obtaining a business advantage for TWE or to assist TWE in directing business to any person. The Supplier will not offer or pay, directly or indirectly, money or anything of value for, or on behalf of, TWE to any other person or legal entity for any illegal purpose. 

(32) (Corporate Responsibility) The Supplier must: 

(a) comply with the Code in performing its obligations under this Agreement; 

(b) comply with the TWE Environmental Policy in performing its obligations under this Agreement;

(c) provide any environmental data (eg energy use, greenhouse gas emissions and water use) reasonably requested by TWE relating to the Supplier’s performance of the Agreement;

(d) at TWE’s request (not to occur more than once per year) conduct an internal review of the Supplier’s compliance with the Code and the TWE Environmental Policy, and provide the findings of that review to TWE within a time and in a form to be agreed between the parties.

(33) (Responsible Procurement Code) The Supplier agrees to comply with TWE’s Responsible Procurement Code available at https://www.tweglobal.com/investors/corporate-governance#Codes-and-Policies (which may be updated from time to time by TWE).

(34) (Modern Slavery) The Supplier will not undertake any activity, practice or conduct that would constitute an offence in relation to slavery, forced labour, involuntary servitude, debt bondage, human trafficking, or other slavery-like exploitation as prohibited under all applicable anti-slavery and human trafficking laws (“Modern Slavery”) in performing its obligations under this Agreement.  The Supplier must promptly notify TWE if it discovers a violation of this clause, which is grounds for TWE to terminate its relationship with the Supplier.  The Supplier will, within a reasonable period upon request by TWE and at its own expense, provide TWE with a written report addressing the Supplier’s Modern Slavery compliance measures for the purpose of the TWE fulfilling its corporate requirements. 

(35) (Definitions)

(a) Acceptable Quality has the meaning given in s54(2) of Schedule 2 to the Competition and Consumer Act 2010 (Cth) for Goods and, for Services, correlates to the guarantee in s61(2) of Schedule 2 to the Competition and Consumer Act 2010 (Cth);

(b) Conditions means these Purchase Order Terms and Conditions;

(c) Goods means the goods manufactured, grown, supplied and/or provided by the Supplier as specified in the Purchase Order but excluding TWE Goods;

(d) Government Official includes any officials or employees of government, state-owned businesses, international organisations, or political parties, political candidates, or any person otherwise acting in an official capacity for or on behalf of a government entity or international organisation;

(e) Purchase Order means the purchase order issued by TWE to the Supplier that accompanies these Conditions;

(f) Purchase Price means the purchase price for the Goods or Services as set out in the Purchase Order;

(g) Services means the services specified in the Purchase Order (if any);

(h) Supplier means the person named in the Purchase Order as the supplier of the Goods and/or Services;

(i) TWE means the subsidiary of Treasury Wine Estates Limited (ABN 24 004 373862) specified in the Purchase Order; and

(j) TWE Environmental Policy means the Environment Policy available at https://www.tweglobal.com/investors/corporate-governance#Codes-and-Policies (which may be updated from time to time by TWE).  

(k) TWE Goods means any goods or materials that TWE provides to the Supplier in order for the Supplier to provide TWE with the Goods or Services. 

 

Australia and New Zealand

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