Supply Terms & Conditions

These Terms govern the supply of Goods and/or Services from Supplier to Optimal, as those parties are identified in the Purchase Order.

“Purchase Order” means a purchase order issued by Optimal which attaches or references these Terms, “Agreement” means the Purchase Order together with these Terms, and other capitalised terms used in more than one Clause are defined at the end of these Terms.

  1. Goods and Services. Supplier must supply, and Optimal must purchase, the Goods and/or Services in accordance with this Agreement. Supplier must state a valid Optimal Purchase Order number on all invoices, delivery dockets and packaging.
  2. Quality of Goods. Supplier warrants that Goods it supplies under this Agreement will: (i) be new; (ii) comply with any specifications stated in the Purchase Order or provided to Optimal by the Supplier in writing; (iii) be free of defects and deficiencies in materials, workmanship, performance and design at the time of delivery and for a period of 12 months afterwards; (iv) be transferred to Optimal with good title and free from all liens and encumbrances; and (v) comply with Applicable Laws.
  3. Quality of Services. Supplier warrants that when supplying Services under this Agreement it will: (i) provide any specified deliverables within the timeframe and to the standard specified by Optimal; (ii) ensure its representatives act in a professional and competent manner and in accordance with all reasonable instructions and site rules of Optimal; and (ii) comply with Applicable Laws. If Supplier subcontracts all or any part of the Services, Supplier remains liable for the subcontractor’s acts and omissions as if that subcontractor was the Supplier. 
  4. Delivery. Supplier must deliver the Goods and/or provide the Services at the time and place specified in the Purchase Order. Supplier must package and label the Goods in compliance with Applicable Laws, and in a secure manner to avoid damage in transport. If Supplier is unable to deliver the Goods and/or Services by the date specified in the Purchase Order, Supplier must provide immediate written notice to Optimal detailing the reason for the failure and the new proposed date of delivery. Upon receipt of such notice, Optimal may at its discretion: (a) accept the new proposed date of delivery specified in Supplier’s notice; (b) accept that new proposed date of delivery but subject to agreed compensation for the delay; or (c) cancel the order.
  5. Remedies. If Supplier fails to deliver Goods and/or Services to Optimal in compliance with this Agreement (including where Optimal cancels the order under Clause 4(c)), Supplier must at Optimal’s option and within 30 days (unless the parties agree another period) either: (i) replace or re-perform those Goods and/or Services; or (ii) refund any amount paid by Optimal to Supplier in relation to those Goods and/or Services; and must also pay Optimal the amount of any loss or expense reasonably incurred by Optimal due to Supplier’s failure to deliver in compliance with this Agreement, including but not limited to wasted costs of transport, storage, handling, return or destruction of Goods, damage to any facilities or equipment, or the closure of or inability to operate any facilities or equipment. If Optimal requires Supplier to replace or dispose of non-compliant Goods, Supplier must retrieve those Goods at Supplier’s cost within 5 days (or such longer period as the parties agree is reasonable). The foregoing remedies are not exclusive. 
  6. Title and Risk. Unless otherwise agreed in writing, title in the Goods, and risk of loss or damage to the Goods, will pass from Supplier to Optimal on the later of: (i) delivery of the Goods to the place stated in the Purchase Order, or (ii) where applicable, Supplier’s completion of any Services to install the Goods. Passing of title and risk does not limit Optimal’s rights and remedies under this Agreement in respect of any delivered Goods which are defective or otherwise fail to conform to the Agreement. 
  7. Inspection. Optimal’s representatives may visit the premises of Supplier or its subcontractors during business hours to inspect work relating to the Goods and/or Services at any stage of production, engineering, manufacture, installation or pending dispatch. 
  8. Payment. Subject to the proper supply of the Goods and Services, Optimal must pay Supplier the price specified in the Purchase Order, which is the only consideration Supplier is entitled to under this Agreement. Optimal must pay any properly issued invoice within 30 days of receipt (unless the parties agree another period). 
  9. Taxes. Each party is responsible for the payment of all taxes, assessments and government charges or levies applicable to it under Applicable Laws. If an Applicable Law provides that any sales tax, goods and services tax, or other form of value-added tax (Tax) is payable by Optimal to the Supplier, Supplier must specify that Tax separately, ensure the invoice is in the form prescribed by the Applicable Law, and provide Optimal with any other documentation required by the Applicable Law in connection with the Tax.
  10. No Exclusivity or Minimum Purchase Requirement. Optimal is not required to order or purchase any minimum quantity or value of the Goods and/or Services from Supplier, and any estimates, forecasts or indications of future demand for the Goods and/or Services provided by Optimal are non-binding.  This Agreement is not exclusive, and Optimal may procure the same or similar Goods and/or Services from other suppliers. 
  11. Insurance. Supplier must maintain types and levels of insurance which are prudent to cover its potential liabilities to Optimal under this Agreement, which must include at minimum: (i) public liability insurance of at least AU$20m per claim; (ii) professional indemnity insurance of at least AU$10m per claim (to be maintained during the performance of, and for at least 3 years after, the provision of any Services); (iii) workers’ compensation insurance as required under any Applicable Law. Supplier must at Optimal’s request evidence its compliance with this Clause. 
  12. Confidentiality. A Recipient of Confidential Information must keep that information confidential, must use it only for the purposes of carrying out this Agreement, and must not disclose it to any third party except: (a) to legal, tax or other professional advisors who need to know it and are bound to keep it confidential, or (b) as required by law provided the Recipient notifies the receiving party of the information's confidential nature and uses reasonable efforts to have the receiving party keep the information confidential.  “Confidential Information” means information of one party which is disclosed to or obtained by the other party (“Recipient”) in connection with this Agreement and which is marked as confidential or which is reasonably likely to be confidential having regard to its nature or the circumstances in which it was disclosed or obtained. This includes any pricing, technical information or reports provided by Optimal to Customer. Confidential Information does not include (or ceases to include) information which: (i) was previously known to the Recipient, (ii) was already, or subsequently becomes, publicly available through no fault of the Recipient, or (iii) is disclosed to the Recipient by a third party who has the right to disclose the information.
  13. Intellectual Property. Where Supplier creates deliverables for Optimal’s use or makes any modifications or improvements to Optimal’s Intellectual Property (such deliverables, modifications and improvements referred to collectively as “Optimal Content”), the Intellectual Property in the Optimal Content is owned by Optimal from its creation or conception. Supplier must take all necessary steps to perfect Optimal’s ownership of Optimal Content, including the execution of any necessary assignment documents. Supplier warrants that the Goods, Services and Optimal Content, and any documentation provided by Supplier (“Supplier Documents”), and Optimal’s receipt and use thereof, will not infringe upon or constitute an unauthorised use of any Intellectual Property, and must indemnify Optimal against any loss, damage or expense incurred by Optimal as a result of any third party claim that the Goods, Services, Optimal Content and/or Supplier Documents infringe upon or constitute an unauthorised use of any Intellectual Property. Supplier grants Optimal an unrestricted, irrevocable and sub-licensable right to use any Supplier Documents as necessary to utilise and enjoy the benefit of the Optimal Content, Goods and/or Services. Any information or materials provided by Optimal to Supplier remain Optimal’s property, and any information Supplier derives therefrom must be kept confidential. “Intellectual Property” means any intellectual or industrial property right anywhere in the world including any patent, patent application, utility model, copyright, registered design and other similar design rights, rights in integrated circuit chip topography and other similar rights and any other rights which may subsist anywhere in the world in inventions, manufacturing processes, technical and other information.  
  14. Term. This Agreement commences upon Optimal’s issuance of the Purchase Order (or if earlier, the date on which Supplier commences provision of the Goods and/or Services) and concludes once the Goods and/or Services have been provided to Optimal’s reasonable satisfaction. Either party may terminate this Agreement immediately by written notice if the other party: (i) breaches this Agreement and does not cure such breach within 14 days of notice requiring remediation; or (ii) ceases or threatens to cease carrying on business, becomes insolvent, or becomes subject to an order or resolution for its winding up, or has a receiver, liquidator or trustee in bankruptcy appointed for the whole or any part of its assets or becomes a Restricted Party. Optimal may immediately terminate this Agreement, without penalty or payment, if the Goods and/or Services fail to comply with Clause 2 or 3, or if Supplier breaches Clause 11, 12, 13, 16 or 17.
  15. Effect of Termination. Termination of this Agreement will not relieve either party from any liability which has accrued up to and including the date of termination, or for any previous breach this Agreement. Clauses 2, 3, 5, 8, 9, 11, 12, 13, 15, 17, 18, 19, 20 and 21 survive termination of this Agreement.
  16. Anti-Corruption. Each party warrants that none of it, its Related Body Corporates, or any subcontractor or third party utilised by it will authorise, offer, promise or provide (or cause to be offered, promised or provided) anything of value, directly or indirectly, to (i) any government official in order to influence or reward official action in connection with this Agreement or (ii) any person to influence or reward that person to act in breach of a duty of good faith, impartiality or trust in relation to this Agreement.
  17. Privacy. Each party must comply with the Privacy Laws applicable to it in performing this Agreement. If Optimal provides any Personal Information to Supplier in connection with this Agreement, Supplier must keep that information confidential and comply with Optimal’s directions concerning the maintenance of and access to that information. Supplier must not provide any Personal Information to Optimal in connection with this Agreement unless it has obtained the consent of the Data Subjects, and notified them of Optimal's Privacy Statement at https://optimalgroup.com.au/privacy-policy/. “Data Subject” means the person to whom Personal Information relates; “Personal Information” means 'personal information' as defined in the Privacy Act 1988 (Cth), and any other information to which a Privacy Law applies; and “Privacy Laws” means the Privacy Act 1988 (Cth), and any other Applicable Laws relating to privacy, data protection, surveillance, data security, direct marketing or the processing of Personal Information.
  18. Records & Audit. The Supplier must maintain accurate and reasonably detailed records in connection with this Agreement and must upon request permit Optimal to inspect any books, financial records, property or location under the control of the Supplier or its subcontractors as reasonably necessary to verify its compliance with this Agreement. 
  19. Notices. Notices under this Agreement: (i) must be in writing and signed by an authorised representative of the sender; (ii) must be delivered by registered mail to the recipient’s registered address or contact details last notified in writing by the recipient.
  20. Law and Disputes. This Agreement is governed by the laws of the State of Victoria, Australia. Any dispute or difference whatsoever arising out of or in connection with this Agreement or the performance or non-performance of the obligations of the parties under it shall be submitted to arbitration in accordance with, and subject to, the Resolution Institute Arbitration Rules, with the Arbitration seat being Melbourne. The foregoing shall not prevent either party from taking any steps to enforce payment due under this Agreement or to seek injunctive relief in respect of a dispute or other matter arising under this Agreement. 
  21. General. (i) This Agreement is the entire agreement between the parties in connection with the supply of the Goods and/or Services, and any terms or conditions proposed by Supplier (including those contained in any Seller quotation, invoice, acceptance, or acknowledgement of order), are deemed rejected by Optimal; (ii) this Agreement can only be varied in writing signed by both parties; (iii) the Purchase Order prevails over these Terms and Conditions to the extent of any inconsistency; (iv) rights, powers and remedies provided in this Agreement are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of this Agreement; (v) if the whole or any part of a provision of this Agreement is void, unenforceable or illegal, it shall be considered severed; (vi) Supplier may not assign its rights or subcontract its obligations without Optimal’s agreement; (vii) Optimal may by notice assign its rights under this Agreement to a Related Body Corporate.
  22. Global Definitions
    1. “Applicable Laws” means any laws, statutes, regulations, codes or industry standards applicable to the performance of this Agreement, the creation and/or provision of the Goods and/or Services, and any sanctions, export controls or other similar laws or regulations that restrict the trade of goods, technology or services from, to, or with the involvement of particular jurisdictions or persons.
    2. “Goods” means the goods to be provided by Supplier as specified in the Purchase Order.
    3. “Related Body Corporate” means, in relation to a company, any other company which is ‘related’ to the first-mentioned company by virtue of s.50 of the Corporations Act 2001 (Cth). 
    4. “Services” means the services to be provided by Supplier as specified in the Purchase Order.