Standard Terms and Conditions of Purchase Order – Bridgewest Perth Pharma Pty Ltd

These terms and conditions apply to Small Business Suppliers 1 (“Sellers”) engaging with Bridgewest Pharma Pty Ltd and/or its Associated Companies2 (“Buyer” or “Bridgewest”) who are not a party to a current contract with Buyer.

1 ‘Small Business Supplier’ has the meaning given by section 5 of The Payment Times Reporting Act 2020 (Cth).

2 ‘Associated Companies’ means all companies which (directly or indirectly) control, are controlled by or are under common control with Bridgewest Perth Pharma Pty Ltd.

The terms of this Purchase Order (“Order”) constitute an offer to purchase. Seller’s commencement of work, shipment of the described goods, performance of the described services, or issuance of a sales acknowledgement shall be deemed an acceptance of this Order. This Order expressly limits acceptance to the terms set forth herein. No terms stated by Seller in accepting this Order shall be binding upon Buyer if inconsistent with or in addition to the terms stated herein unless accepted in writing by Buyer. If this Order is deemed to be an acceptance of an offer by Seller, such acceptance is limited to the express terms of this Order and is made conditional on Seller’s assent to any additional or different terms in this Order. If, however, a written contract is already in existence between Buyer and Seller covering the purchase of the goods or services covered hereby, the terms and conditions of said contract shall prevail to the extent that the same may be inconsistent with the terms and conditions hereof.

If no price is stated on the Order, the goods or services shall be billed at the price last quoted by Seller, or last paid by Buyer to Seller, or at the prevailing market price, whichever is lowest. Notwithstanding anything to the contrary stated on the face of the Order, amounts payable by Buyer under this Order will be paid thirty (30) days after the date upon which Buyer receives a correctly rendered tax invoice.

Seller represents and warrants that:

a. The Seller, and its employees, agents and subcontractors, are licensed, registered, or qualified under local law, regulations and policies to do business and have obtained all necessary licenses, consents and authorisations necessary or required to provide the goods or services, and providing such goods or services is not inconsistent with any other obligation of the Seller.

b. All goods supplied hereunder shall be free from defects in material and workmanship and shall be of merchantable quality, shall conform to the Buyer’s specifications, shall comply with all applicable laws and shall be suitable for Buyer’s intended uses and purposes to the extent that such uses and purposes are known or reasonably should be known to Seller.

c. All goods supplied hereunder shall, at the time of sale and delivery, comply with the requirements of all applicable Federal, State and Local laws and regulations.

d. The use or sale of the goods delivered hereunder shall not infringe any patent, trademarks, copyright, or any other intellectual property rights of any third party.

 

When performing any services at any of Buyer’s locations, Seller must carry adequate insurance, with

limits no less than $1,000,000 per occurrence and with $5,000,000 in annual aggregate, and will promptly furnish Buyer with a certificate thereof, covering Worker’s Compensation, General Bodily and Property Damage Liability, and Automobile Bodily and Property Damage Liability. The title and risk in goods shall pass to Buyer upon delivery except as otherwise set forth herein.

All goods supplied hereunder are to be shipped subject to Buyer’s examination and right of rejection for a reasonable time after delivery notwithstanding prior payment, if not as warranted herein, or if not in conformity with Buyer’s specifications or, if no specifications are given by Buyer, with standard specifications. All expenses incurred by Buyer because ofrejections hereunder shall be for Seller’s account, and Buyer may return rejected goods at Seller’s expense.

Prices stated on the face of the Order include all taxes (including GST) and other governmental charges not specifically imposed by law on Buyer, and Seller agrees to indemnify Buyer against and reimburse it for any expenditures it may be required to make on account of Seller’s failure to pay such taxes and other governmental charges.

Failure of Seller to make, or of Buyer to take, one or more deliveries of goods or performance of services hereunder, if occasioned by acts of God, fire, explosion, flood, epidemic, war, acts of governmental authority, civil disturbances, or any other circumstances beyond the control of the parties, or if Buyer’s failure is occasioned by a partial or complete suspension of operation at any of Buyer’s plants, shall not subject the party so failing to any liability to the other party, but, by mutual agreement between the parties (not to be unreasonably withheld), the total quantity of goods or services covered by the Order may be reduced by the extent of delivery or performance omitted as a result of such contingencies.

Seller shall pay all shipping, packing, crating and cartage charges unless otherwise specified in the Order. Each container must be marked to show quantity, Order number, contents and shipper’s name and must include a packing sheet showing this information. Packaging, marking, labelling, and shipping of all hazardous materials must meet applicable regulations.

If the Seller defaults in any of its obligations hereunder, becomes insolvent, or has a receiver appointed, or if Buyer believes in good faith that any of such events may occur, Buyer may, at its discretion without prejudice to any other remedy, suspend performance of or terminate the Order. In the event of termination, if Seller is in possession of any goods or items belonging to Buyer, Buyer may enter any premises of Seller to retrieve such goods or items. Without prejudice to any other remedy, if Seller breaches any of the terms of the Order, Buyer may, at its election: (i) reject and return the goods and/or services in whole or in part at Seller’s cost within a reasonable time after delivery notwithstanding prior payment (risk in the goods shall revert to Seller upon such rejection); (ii) permit Seller to repair or reinstate the goods or re-perform the services so that they conform with this Order; or (iii) carry out or have carried out at Seller’s expense such work as is necessary to conform the goods and/or services to this Order.

The Order shall be governed by the laws of the state of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of courts of New South Wales, Australia.

In all cases where Seller delivers goods or performs services hereunder at any of Buyer’s locations, Seller will comply with all applicable provisions of Federal, State and Local safety, health and security laws and regulations and Buyer’s safety standards for such location.

Any information or materials provided to Seller by or on behalf of Buyer in connection with this Order shall remain the property of Buyer and Seller shall use such materials solely in connection with this Order. Seller will not disclose or use for any other purpose, any information or materials acquired from or on behalf of Buyer or its affiliates concerning any designs, drawings, specifications, personnel, research activities, products, or other business operations. Seller shall maintain such materials in good order and condition subject to fair wear and tear and shall dispose of or return such materials as Buyer directs.

Seller agrees to defend, indemnify and hold harmless Buyer against any and all liability, judgments, damages, losses, and expense to the extent occasioned by or resulting from any breach of representation and/or warranty made herein by Seller, or by the failure of Seller to comply with the terms hereof, or by the negligence or wilful misconduct of Seller, regardless of whether or not such failure is caused in part by Buyer; provided, however that the Seller shall not have liability under this section to the extent such losses are caused solely by the negligence, recklessness or wilful misconduct of Buyer. Buyer shall not under any circumstances be liable for lost profits or any indirect or consequential loss of Seller.

The terms of this Order in its entirety and each and every provision hereof shall inure to the benefit of the customers, successors and permitted assigns of Buyer. Seller may not assign this Order without Buyer’s prior written consent, and any such assignment without Buyer’s consent shall be null and void.

The following additional terms and conditions apply to Sellers engaging with the Buyer.

a. The Seller will be held responsible for any claims arising from defects of materials or workmanship.

b. The Buyer reserves the right to turn away shipments on dirty/broken or substandard pallets or any goods which are visibly unstable or damaged in any way or of wrong grade/description or where contamination is evident. Acceptable re-supply will be at Seller’s expense.

c. Delivery dockets must accompany goods and be endorsed with the corresponding Order. Delivery dockets should clearly specify Order number, item, description, grade, quantity, units, lot number and number of pallets. We reserve the right to turn away deliveries which do not match delivery dockets. Re-supply will be at Seller’s cost.

d. The acceptance of these goods is subject to the Buyer’s Quality Control Inspection.

e. Material supplied against this Order must comply with the Buyer’s material specifications provided.

f. All packs containing materials must be clean, free from contamination, undamaged and individually identified.

g. Pallets

All pallets must comply with the following:

i. All pallets / boxes must state Customer and Product code.

ii. Maximum load per pallet is 1 tonne net weight (1000kg).

iii. All pallets must be Chep pallets or ISPM15 compliant pallets.

iv. All items must be boxed on pallets and there must be no overhang.

v. All pallets must be shrink-wrapped or banded.

vi. Labelling shall be as agreed with Buyer.

vii. All inventory items shall be delivered in closed trucks.

viii. No pallet shall contain mixed lots.

ix. The certificate of analysis is to accompany the delivery of good.

a. In the event that the performance of the Order requires the Seller to collect or use onBuyer’s behalf any “Personal Information” (being any information or an opinion, about an identified individual, or an individual who is reasonably identifiable, and whether recorded in material form or not), the Seller will only do so in accordance with the Privacy Act 1988 (Cth) (the “Privacy Act”) and Buyer’s instructions (subject to such instructions being consistent with the Privacy Act) and will take reasonable measures to prevent unauthorised or unlawful access to, disclosure of, or loss of such Personal Information.

b. The Seller must:

i. establish, maintain and enforce appropriate policies, procedures and standards, and associated access controls and all appropriate technical and organisational measures to (i) ensure and maintain the security of Personal Information and (ii) prevent unauthorised or unlawful access to, or processing of, and accidental loss or destruction of, or damage to, Personal Information;

ii. only collect, store, use, disclose or otherwise deal with Personal Information to the extent necessary to perform its obligations under this Agreement;

iii. not disclose or transfer Personal Information to, store any Personal Information with, or allow any use or processing of Personal Information by, any person outside of Australia without the express, prior written authority of Buyer;

iv. act only on the instructions of Buyer in relation to the processing of Personal Information and comply with Pfizer’s requests or directions concerning the storage, security, handling, use and disclosure of Personal Information; and

v. immediately notify Buyer if it becomes aware of a breach of this clause 16.

c. In the event that the Seller is aware of or suspects that, in providing the goods/services under this agreement, a data or system breach including an event that amounts to an “Eligible Data Breach” (as that term is defined in the Privacy Act) has occurred, the Seller must:

i. immediately notify, and keep Buyer updated of all known details relating to the breach or incident, including what data has been accessed or compromised, the nature of the breach or incident, whether the breach or incident has ceased or is ongoing, the location and cause of the breach or incident and whether any data has been lost or corrupted;

ii. comply with its obligations under the Privacy Act in relation to that event;

iii. provide Buyer with all information requested by it about the event;

iv. retain all data critical to identifying the nature, extent and cause of the breach or incident and preserve all logs that detail access to and interactions with relevant Personal Information; and

v. if requested, allow Buyer to participate in the Seller’s assessment of the event, including whether it amounts to an Eligible Data Breach, and remediation activities.

d. Once any Personal Information collected or used by Seller in the performance of the Services is no longer needed, this Agreement is terminated, or as otherwise directed by Buyer, the Seller will destroy the Personal Information or ensure that it is de-identified in accordance with any requirements under the Privacy Act and provide written confirmation to Buyer of such action.

a. Seller represents and warrants that:

i. Seller is licensed, registered, or qualified under local law, regulations, policies, and administrative requirements to provide the goods or services in this agreement, and no regulations or other obligations prohibit it from providing such goods or services;

ii. Seller has not and will not in the future directly or indirectly offer or pay, or authorize the offer or payment, of any money or anything of value in an effort to influence any Government Official or any other person in order for Buyer to improperly obtain or retain business or to gain an improper business advantage, and, has not accepted, and will not accept in the future, such a payment;

iii. Seller will (i) provide truthful and complete documentation supporting, in reasonable detail, the work performed and any expenses incurred, (ii) maintain true, accurate, and complete invoices, reports, statements, books, and other records, and (iii) secure pre-authorization in writing from Buyer for any extraordinary expenditure; and

iv. Seller will permit, during the term of the agreement and for three years after final payment has been made under the agreement, Buyer’s internal and external auditors access to any relevant books, documents, papers, and records of Seller involving transactions related to or goods/services provided under the agreement. Where the agreement involves clinical studies, the contract shall include acceptable safeguards to ensure confidentiality.

v. If requested by Buyer, Seller will complete and submit to Buyer, the Third-Party Annual Compliance Certification at an annual interval, upon request by Buyer.

b. Buyer may terminate the contract if Seller breaches any of the above Representations and Warranties.

18. Global Trade Controls

a. The parties will perform all activities under this Purchase Order in compliance with all applicable economic sanctions, import, and export control laws, regulations and orders. Supplier will not knowingly transfer to Buyer any Products, goods, software, technology or services that are subject to export controls. The parties agree that no activities under this Purchase Order will involve the Crimean Peninsula, Cuba, the Donbass Region, Iran, North Korea, or Syria, or any other country, territory or region similarly sanctioned or subjected to an economic embargo by the government of the United States or any other applicable jurisdiction. Each party represents, warrants, and covenants that it is not designated on any list of restricted, sanctioned, or debarred parties maintained by an applicable governmental authority, including those established under the FDC Actor the U.S. Foreign Assets Control Regulations, and that it will not involve any such listed individual or entity in the performance of this Purchase Order.

19. Modern Slavery

a. “Modern Slavery” means exploitative practices including human trafficking, slavery, slavery-like practices, servitude, forced labour, forced marriage, debt bondage, the worst forms of child labour, deceptive recruiting for labour services and includes the conduct in section 4 of the Modern Slavery Act 2018 (Cth).

b. The Seller undertakes, warrants and represents that neither the Seller, nor any of its officers, employees, agents or subcontractors, have:

i. committed an offence under the Modern Slavery Act 2018 (NSW) or Modern Slavery Act 2018 (Cth);

ii. been notified that they are subject to an investigation or prosecution relating to an alleged offence under either Act; or

iii. become aware of any circumstances within its supply chain that could give rise to an allegation of Modern Slavery;

c. it shall notify Buyer immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors, have breached or potentially breached any of the Seller’s obligations under this clause 19. Any notice under this clause 19 shall set out full details of the circumstances concerning the breach or potential breach of the Seller’s obligations.

20. Force Majeure

a. If a party (Affected Party) is prevented from performing an obligation by a Force Majeure Event, it must promptly notify the other party in writing of full particulars of: the Force Majeure Event; the effect of the Force Majeure Event on the performance of the Affected Party’s obligations; the anticipated period in which the Affected Party will be prevented from the performance of its obligations as a result of the Force Majeure Event; and the action (the Affected Party has taken and/or proposes to take to avoid or minimise the consequences of the Force Majeure Event.

b. Following any Force Majeure Event notified to the other party in accordance with this clause:

i. the Affected Party must promptly take and continue to take reasonable steps (including reasonable expenditure of money and implementing temporary measures) and act with diligence to cure, avoid, mitigate or minimise the Force Majeure Event on the performance of its obligations under this Agreement;

ii. the obligations affected by the Force Majeure Event, and the obligations of the other party that are dependent on the performance of the Affected Party’s obligations affected by the Force Majeure Event, are suspended during, but for no longer than the period that the Force Majeure Event continues;

iii. the Affected Party must continue to perform all obligations under this Agreement except those suspended under this clause;

iv. the Affected Party must promptly take and continue to take reasonable steps to cure, mitigate or minimise the impact of the Force Majeure Event on the performance of its obligations under this Agreement; and

v. the Affected Party must keep the other party reasonably updated with all relevant information, including such information as may be reasonably requested by the other party, in connection with the Force Majeure Event.

c. In this clause, Force Majeure Event means any of the following events:

i. fire, lightning, explosion, flood, earthquake, storm, cyclone, natural disaster or act of God;

ii. riot, blockade, embargo, malicious damage, sabotage, terrorism, war (declared or undeclared), revolution, invasion or other like hostilities;

iii. strike, lockout, ban, limitation of work or other industrial disturbance not involving labour employed or otherwise engaged by the Affected Party, its subcontractors or suppliers. Nothing in this clause obliges the Affected Party to settle any strike, lockout, ban, limitation of work or other industrial disturbance;

iv. pandemic, epidemic, disease outbreak or public health emergency, or

v. law, rule or regulation of any government or governmental agency, and executive or administrative order or act of general or particular application; and which:

vi. the Affected Party could not reasonably have been expected to have foreseen, prevented, avoided or overcome by exercising a standard of care and diligence consistent with that of a reasonable person in the circumstances; and

vii. is beyond the control of the Affected Party; and

viii.is not caused or contributed to by an act or omission of the Affected Party.

[Updated 5 February 2023]