SONY COMPUTER ENTERTAINMENT AUSTRALIA / SONY COMPUTER ENTERTAINMENT NZ TERMS AND CONDITIONS OF PURCHASE
1.Definitions "Buyer" means Sony Computer Entertainment Australia Pty Limited or Sony Computer Entertainment NZ Limited as applicable; "Seller” means the person, firm or company to whom an Order is addressed; "Goods" means the goods or services or works described in an Order or any of them; "Specification" means the description of the Goods and details (if any) of their manufacture and/or performance set out or referred to in this Order and any plans, drawings, data or information relating to the Goods and "specified" has a corresponding meaning; "Contract" means the Contract for the purchase by the Buyer of the Goods specified in an Order; "Order” means the Buyer's printed order form together with the terms of any other document expressly referred to in such order form or any other document of the Buyer in which the Buyer offers to purchase or obtain goods or services.
2. General The Goods shall be supplied by the Seller to the Buyer on the following terms and conditions which supersede and cancel any previous terms and conditions (including any general terms and conditions of the Seller) and which shall not be varied, waived or added to except by agreement in writing signed by a director or another authorised representative of the Buyer. In the event of any contradiction between these conditions of purchase and the express terms of the Order then the terms of the Order shall prevail.
3. Price and Payment 3.1 The prices set out in the Order are inclusive of packaging, packing, carriage, insurance and delivery costs and clearly specify the GST or any other tax in relation to the supply of the Goods which shall be determined as at the date of despatch and shall be payable by Sony Computer Entertainment Australia Pty Limited on its own behalf or on behalf of Sony Computer Entertainment NZ Limited as applicable against receipt of the Seller's GST invoice. Where a fixed purchase price is specified the Seller shall not vary the price or levy any surcharge. 3.2 The Buyer’s terms of payment are payment at the end of the month following the month of invoice. Unless otherwise agreed invoices may be issued when Goods are accepted by Buyer. 3.3 Payment may be delayed (but no prompt payment discount shall be forfeited) in the event that the Seller:- (a) fails to send a monthly statement of account by the 10th of the month or such other date as is agreed; (b) fails to send on the day of despatch for each consignment appropriate advice of despatch and invoices; (c) fails to quote the Buyer’s order number on all correspondence and documents relating to the Order. 3.4 The Buyer shall be entitled to set off against the price of any Goods any sums owed to the Buyer by the Seller and such rights of set off shall apply to and against the beneficiary of any novation or assignment of any debt owed by Buyer. The price includes all fees payable in respect of any and all use or exploitation of the Goods.
4. Inspection/Cancellation 4.1 The Buyer shall have the right at any reasonable time to inspect and test the Goods during performance, manufacture or processing or while stored under the control of the Seller. Such inspection shall not relieve the Seller of any liability nor shall it imply acceptance of any Goods by the Buyer. 4.2 The Buyer shall be entitled at any time to cancel the Order or any part thereof without incurring any cost or liability to the Seller.
5. Obligation of Seller 5.1 Where the Buyer provides to the Seller any equipment and/or materials the Seller accepts full responsibility for their proper storage, safe custody and method of use. The Seller accepts the risk of loss of or damage to such equipment and/or materials, which shall at the Seller’s expense be returned to the Buyer or otherwise disposed of in accordance with the Buyer’s instructions. 5.2 Where any Goods require and/or are capable of maintenance, the Seller will endeavour to ensure the continued availability of service parts for a reasonable time after delivery of the Goods.
6. Delivery of Goods 6.1 The Seller shall, at the Seller's own risk and expense in all respects, deliver the Goods or undertake performance at the place or places in the manner and within the time or times specified in the Contract and during the Buyer's normal business hours. 6.2 The Buyer shall not be under any obligation to accept delivery of and pay for any Goods other than the Goods specified in the Order. The Buyer shall not be under any obligation to accept delivery of the Goods or any of them unless (where appropriate) a packaging or delivery note bearing the Buyer’s order number accompanies each delivery or consignment and such note is prominently displayed. 6.3 If the Goods are to be delivered by instalments the Contract shall be treated as a single contract and not severable. 6.4 The Buyer shall not be obliged to return to the Seller any packaging or packing materials for the Goods whether or not any Goods are accepted by the Buyer. 6.5 If the Seller fails to perform and/or deliver the Goods by the delivery date or times specified in the Contract or extended under this sub-clause (whether or not such failure is attributable to industrial disputes or other causes beyond the control of the Seller) the Buyer may either grant to the Seller such extension or extensions of time as the Buyer considers reasonable (time being the essence of the Contract as specified or so extended) or rescind the Contract. If the Buyer elects to rescind the Contract the following provisions shall apply:- (a) the Buyer shall return to the Seller, at the Seller's risk and expense, any Goods already delivered which by reason of the non-delivery of the balance are not reasonably capable of use by the Buyer in the ordinary course of business; (b) the Seller shall immediately refund to the Buyer any money paid by the Buyer for, or in respect of, undelivered or returned Goods; (c) the Seller shall pay to the Buyer an amount equal to the excess (if any) over the Contract price of expenditure reasonably incurred by the Buyer in buying other goods in place of the Goods; (d) the Buyer shall be under no other liability to the Seller for, or in respect of, rescission of the Contract pursuant to the provisions of this clause.
7. Passing of property in Goods 7.1 The property in the Goods shall pass to the Buyer no later than on delivery subject to any right of the Buyer to reject or return the Goods or any part of them. If the Buyer makes any advance payment, title but not risk shall pass to the Buyer as soon as items are allocated to the Order and the Seller shall record such allocated items as the Buyer’s property. 7.2 Upon delivery the Goods shall not be subject to any option, charge, lien, encumbrance or other adverse right and neither the Seller nor any third party shall be entitled either to retain title to the Goods or to have any equitable or other rights over the Goods.
8. Rejection of Goods 8.1 The Buyer may by notice in writing to the Seller given within 28 days (or such other period as may be agreed) after delivery or performance reject any or all Goods comprised in such delivery which are defective or which are not in accordance with the Contract. Notwithstanding the foregoing the Buyer shall not be deemed to have accepted and may reject any Goods within a reasonable time after any latent defect has become apparent or otherwise known to the Buyer. 8.2 The Buyer may at its option return any rejected Goods to the Seller at the Seller's risk and expense or require the Seller to collect the same. 8.3 The Buyer may at its option require the Seller within a reasonable time to deliver Goods which are in all respects in accordance with the Contract in place of any rejected Goods or treat the tender of Goods which the Buyer is entitled to reject as a repudiation of the Contract. 8.4 The Seller shall forthwith repay to the Buyer any money paid by the Buyer to the Seller for, or in respect, of any rejected Goods not replaced by the Seller under sub-clause 8.3; and shall further forthwith pay to the Buyer as liquidated damages a sum equal to the excess (if any) over the Contract price of expenditure reasonably incurred by the Buyer in obtaining other Goods in place of the rejected Goods without prejudice to any claim of the Buyer in respect of other loss or damage including consequential damage.
9. Quality, Statutory and other requirements 9.1 The Seller warrants that the Goods and all literature relating to the Goods comply in all respects with all applicable statutes, regulations and other legal requirements and are of satisfactory quality, fit for their purposes and to the extent comprising services are performed diligently with a high degree of skill, care and professionalism. 9.2 The Goods shall be marked in accordance with any written instructions of the Buyer and any applicable regulations or requirements of any carrier, and be properly packed and secured so as to reach their destination in an undamaged condition in the ordinary course.
10. Intellectual Property Rights Unless the Seller and the Buyer agree in writing to the contrary, all intellectual property rights in developed or commissioned Goods shall belong to the Buyer. The Seller hereby assigns to the Buyer with full title guarantee all such rights including copyright, patent, trademark, rental and design rights for the full term thereof and agrees upon the request of the Buyer to execute and deliver such documents and to do all such acts as may be necessary to give effect to this provision. Seller confirms that the payments made under the Contract include equitable remuneration for rental and that all moral rights and rights of a similar nature in respect of the Goods have or will be waived.
11. Subcontracting and Assignment The Seller shall personally perform all the obligations imposed on the Seller under the Contract and shall not without the prior written consent of the Buyer sub-contract such obligations. The Seller shall remain responsible for the performance of the Order and shall not assign any right or benefit or debit under the Contract without the prior written consent of Buyer. The Buyer shall be entitled to assign its rights and/or obligations upon notice.
12. Termination The Buyer shall be entitled to terminate any Order or Contract summarily by notice in writing to the Seller and without liability to the Seller but without prejudice to any right of action which shall have accrued at the date of such notice to either party. If a longer notice period is agreed, Buyer shall in any event be entitled to terminate any Order or Contract forthwith if: (a) an order is made or an effective resolution is passed for the liquidation, winding up, administrative receivership or administration of the Seller or the Seller seeks or enters into any composition or arrangement with its creditors or the Seller suffers or permits any distraint or distress proceedings or an encumbrance takes possession or a receiver or manager is appointed of all or any part of its assets or undertaking; (b) the Seller ceases or threatens to cease to carry on its business or substantially the whole of its business or disposes of its undertaking or stops or threatens to stop payment of its debts; or (c) the Seller commits any act prejudicial to the interests of the Buyer.
13. Indemnity 13.1 The Seller shall indemnify the Buyer against all losses, claims, expenses, costs and damages of whatever nature arising from or in connection with: (a) breach of any express or implied term, warranty or condition given by the Seller in relation to the Goods; (b) any liability under the Competition and Consumer Act 2010 in Australia or the Commerce Act 1986 in NZ in respect
of the Goods; (c) any act or omission of the Seller or the Seller's employees, agents or sub-contractors in supplying or delivering the Goods or otherwise in accordance with the Contract; (d) any infringement or alleged infringement of any intellectual property rights or other rights by the use, sale or possession of the Goods; or (e) any injury, damage or loss to any person, firm or company or damage to any property caused by or resulting from the Goods. 13.2 The Seller shall insure against the risks described in this clause and shall maintain such insurance in force and shall produce on request the relevant policy of insurance to the Buyer. 13.3 If the Seller shall fail to insure or to produce the relevant policy of insurance at the request of the Buyer then the Buyer may insure such risks in the joint names of the Buyer and the Seller in such sum and on such terms as the Buyer considers appropriate and the Seller shall pay to the Buyer a sum equal to the premium paid.
14. Specification and Confidentiality 14.1 Any Specification supplied by the Buyer to the Seller, or specifically produced or otherwise provided by or for the Seller to the Buyer in connection with the Contract, together with any patent, registered design, design right, copyright, trade mark or other intellectual property right or any right to apply for any and all such rights shall be the exclusive property of the Buyer. 14.2 The Seller shall treat as confidential all information provided by the Buyer or to which the Seller has access in performance of the Contract and shall not disclose to any third party or use for its own benefit, or for the benefit of any third party, any such information or the Specification except to the extent that it is or can be demonstrated by the Seller to be in the public domain otherwise than by the breach by the Seller of this clause 14, or as properly required for the purpose of this Contract. The Seller shall obtain the prior written consent of the Buyer before issuing any publicity in relation to the Contract or the Order.
15. Competition and Consumer Act in Australia & Commerce Act in NZ
In order to assist the Buyer to minimise any liability under the Competition and Consumer Act 2010 in Australia or the Commerce Act 1986 in NZ, the Seller shall for a period of seven years from the date of delivery of the Goods under this Contract or such longer period as the Buyer may reasonably require retain full and complete records of all matters pertaining to the Goods, each component part of the Goods and all raw materials used and shall upon the Buyer's request provide details and copies of the same.
16. Prevention of Bribery 16.1The Seller acknowledges that it is of utmost importance to the Buyer that the Seller in the performance of its obligations under this Agreement complies with all applicable laws including without limitation with anti-corruption statutes. The Seller represents, warrants and undertakes that neither it, its employees, nor any person or entity acting on its behalf or under its control or direction will, either directly or indirectly:
a) offer, promise or give a financial or other advantage to a third party intending the advantage to bring about the improper performance by a third party of a relevant function or activity or to reward such improper performance;
b) offer, promise or give a financial or other advantage to a third party knowing or believing that the acceptance of the advantage offered, promised or given in itself constitutes the improper performance of a relevant function or activity;
c) request, agree to receive or accept a financial or other advantage to reward or to bring about the improper performance of a relevant function, or knowing that the request, agreement to receive or acceptance of the advantage would itself constitute the improper performance of a relevant function;
d) perform a function improperly or request that a third party does so, in anticipation or in consequence of requesting, agreeing or accepting a financial or other advantage;
e) make any payment, offer to pay, promise to pay, or authorise, or act in furtherance of, any payment or exchange of money or anything of value, directly or indirectly, to any government or foreign public official (together “Government Official”) in order to obtain or retain business for the Buyer or the Seller, or to secure any improper business advantage for the Buyer or the Seller otherwise intending to influence the foreign official in its capacity as government or foreign public official;
f) make any facilitating payments to Government Officials to secure performance or routine non-discretionary governmental duties or actions; and/or
g) bribe a third party or carry out any of the acts in Clauses 16.1a) to 16.1g) above to obtain or retain business for the Buyer or the Seller, or to obtain or retain an advantage in the conduct of business for the Buyer or the Seller.
16.2The Seller represents, warrants and undertakes that no officer, employee or agent or shareholder of the Seller is a Government Official and no Government Official has or will have any legal, financial or beneficial interest in this Agreement or the payments made by the Buyer hereunder.
16.3The Seller represents, warrants and undertakes that during the term of this Agreement, no Government Official shall become an officer or employee of the Seller and/or any of its permitted subcontractors nor shall any Government Official acquire a direct or indirect interest in the Seller and/or any of its permitted subcontractors without the prior written consent of the Buyer.
16.4The Seller agrees that it will not use any subcontractors in connection with this Agreement without the prior written consent of the Buyer and having in place appropriate checks and procedures to ensure compliance with anti-corruption laws.
16.5The Seller represents, warrants and undertakes that Seller shall comply with any Sony anti-bribery standards, guidelines and policies notified to the Seller and updated by the Buyer from time to time and that it has in place and shall maintain and implement clear, practical, accessible and enforceable anti-bribery policies and adequate procedures to ensure compliance with such policies and that its permitted subcontractors and each of their employees has agreed in writing to comply with such policies and procedures. Notwithstanding any other provisions of this Agreement, the Seller shall not use any subcontractors without the prior written consent of the Buyer.
16.6The Seller shall keep and maintain up-to-date reports of and responses to any breaches or allegations of breaches of its policies and procedures described in Clause 16.5, or otherwise in relation to an offence under its anti-bribery policies.
16.7At the Buyer’s request, the Seller shall promptly provide to the Buyer a copy of all policies and procedures described in Clause 16.5 and all reports and responses described in Clause 16.6.
16.8The Seller shall promptly inform the Buyer if it becomes aware of any improper payment to a Government Official in connection with this Agreement or if it otherwise breaches any of the provisions of this Clause 16.
16.9Without prejudice to any other provisions of this Agreement, all expenses of the Seller that may be reimbursed by the Buyer shall be reimbursed only when approved by the Buyer and supported by accurate, complete, and appropriately detailed evidence and/or records.
16.10 The Buyer shall be entitled to withhold payments under this Agreement and/or suspend or terminate this Agreement without liability immediately on notice to the Seller if the Buyer reasonably believes that the Seller, any of its permitted subcontractors and/or any of their respective officers, employees or agents may have breached any or all of the provisions of this Clause 16, or may have caused the Buyer to violate any applicable anti-bribery laws.
16.11 The Seller shall indemnify and keep indemnified the Buyer, its associated companies and each of their directors, officers and employees from and against all costs, claims, demands, liabilities, expenses, damages or losses arising out of or in connection with any breach of the provisions of this Clause 16 by or on behalf of the Seller.
17. General 17.1 No delay, neglect or forbearance on the part of the Buyer in enforcing any term or condition of the Contract shall either be deemed to be a waiver or in any way prejudice any right of the Buyer under the Contract. 17.2 The Contract shall be construed and have effect in all respects in accordance with the Law of Australia and the Seller hereby submits to the jurisdiction of the Australia courts for any dealings that relate specifically to Sony Computer Entertainment Australia Pty limited or with the Law of NZ and hereby submits to the jurisdiction of the NZ courts for any dealing that specifically relate to Sony Computer Entertainment NZ Limited.