1. Definitions
Corporations Act means the Corporations Act 2001 (Cth).
Business Day means a day that is not a Saturday, Sunday, or public holiday in the place where the Services are being carried out or the Goods provided.
Goods means any goods supplied by the Supplier including those supplied in the course of providing the Services.
Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, business marks, patents, and registered designs.
KOJO means KOJO Studios Pty Ltd or KOJO Studios (NZ) Pty Ltd as the purchaser of Goods and/or Services, as specified on the Purchase Order, and includes its employees, agents and permitted assigns.
Material means any documentation, information, technology, software, reports, results, processes, discoveries, inventions or other materials (whether in electronic or material form).
Modern Slavery has the same meaning as under the Modern Slavery Act 2018 (Cth).
Personal Information has the same meaning as under the Privacy Act.
Privacy Law means the Privacy Act 1988 (Cth) and the Notifiable Data Breach Scheme, the Privacy Act 2020 (NZ) and the Notifiable Privacy Breach Scheme, and all other laws which relate to the protection of Personal Information relevant to the parties.Cth) and the Notifiable Data Breach Scheme, the Privacy Act 2020 (NZ) and the Notifiable Privacy Breach Scheme, and all other laws which relate to the protection of Personal Information relevant to the parties.
Purchase Order means a purchase order for Goods and/or Services placed by KOJO as varied in writing from time to time by the parties, and which shall apply in the absence of any formal written agreement between KOJO and the Supplier governing the provision of such Goods and/or Services.
Safe Work Method Statement or SWMS means a safety planning document that identifies the hazards and risks associated with a specific high-risk construction activity. It also outlines the measures that will be taken to control those risks.
Services means the services to be provided by the Supplier to KOJO in accordance with a Purchase Order and these KOJO Supplier Terms of Business .
Supplier means the person identified on a Purchase Order as the supplier and includes the Supplier’s agents and permitted assigns.
Works means the work undertaken by the Supplier in the provision of the Goods and/or Services.
2. Interpretation
In these KOJO Supplier Terms of Business, unless the context otherwise requires:
(a) a reference to writing includes email and other communication established through KOJO’s website (if any);
(b) the singular includes the plural and vice versa;
(c) a reference to a clause or paragraph is a reference to a clause or paragraph of these KOJO Supplier Terms of Business;
(d) a reference to a party to these KOJO Supplier Terms of Business or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
(e) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(f) headings are for ease of reference only and do not affect the meaning or interpretation of these KOJO Supplier Terms of Business; and
(g) if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:
(i) if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
(ii) in all other cases, must be done on the next Business Day.
3. General
(a) The agreement between KOJO and the Supplier comprises of:
(i) these KOJO Supplier Terms of Business;
(ii) the description of the Goods and/or Services on the Purchase Order to which these KOJO Supplier Terms of Business are attached; and
(iii) where there is any other agreement between KOJO and the Supplier in respect of the subject matter of the Goods and/or Services, that agreement (Associated Agreement),
together, the Agreement.
(b) In the event of any inconsistency between a term in the Associated Agreement and a term in these KOJO Supplier Terms of Business, the term in the Associated Agreement will prevail.
(c) This Agreement applies to all transactions between the Supplier and KOJO relating to the provision of Goods and/or Services by the Supplier. This includes all quotations, orders, contracts and variations.
4. Obligations
(a) The Supplier must, where applicable, deliver the Goods and/or Services and perform the Works:
(i) on or before the date shown on; and
(ii) to the location described in the Purchase Order.
(b) The Supplier must perform its obligations under the Agreement in accordance with the KOJO Supplier Code of Conduct (as updated from time to time).
(c) KOJO must pay the Supplier the total amount set out in the Purchase Order, plus any applicable GST. Any payment by KOJO must be in accordance with any payment terms as described in a Purchase Order.
(d) If KOJO reasonably determines that the Supplier has failed to perform an obligation under the Agreement, KOJO may, with prior written notice to the Supplier, perform that obligation or assign a nominated third party to perform that obligation. The Supplier must indemnify KOJO for any costs, losses, or damages suffered or incurred by KOJO as a result of exercising its rights under this clause.
(e) KOJO will not be required to pay the Supplier any amount set out in a Purchase Order where it, or a nominated third party, performs an obligation on behalf of the Supplier under clause 4(d) of these KOJO Supplier Terms of Business.
5. Occupational Health and Safety
(a) The Supplier must at all times coordinate the Works with KOJO and any other relevant party as necessary to ensure compliance with all applicable regulatory authority requirements, and must undertake all necessary or desirable precautions to protect the environment and ensure the safety of all persons at the site where the Services are being carried out or the Goods are provided to.
(b) Without limiting the Supplier’s obligations in clause 5(a) above, the Supplier confirms that it will, prior to commencing the Works:
(i) comply with the applicable state or territory workplace health and safety (WHS) acts, regulations, relevant codes of practice and Australian Standards, as well as KOJO’s WHS policies and procedures;
(ii) so far as is reasonably practicable, eliminate risks to the health and safety of workers and other persons arising out of or in connection with the provision of the Services. Where it is not reasonably practicable to eliminate risks, the Supplier must minimise those risks so far as is reasonably practicable;
(iii) so far as is reasonably practicable, prevent or minimise risks of environmental harm arising from its activities in connection with the Services;
(iv) prepare and implement a site-specific Safe Work Method Statement for any high-risk construction work prior to the commencement of the Services, ensure that all personnel are trained in its contents, review and update the SWMS as necessary, and make the SWMS readily available to KOJO upon request;
(v) provide all necessary competent supervision and coordination to ensure that the Services are carried out safely and in accordance with its work health and safety management system. The Supplier must ensure that all workers engaged in providing the Services are appropriately trained, competent and qualified;
(vi) maintain and implement a documented work health and safety management system and provide a copy of the system to KOJO upon request;
(vii) provide, maintain and ensure the safe condition of all plant, equipment, materials and personal protective equipment necessary for the safe performance of the Services;
(viii) immediately notify KOJO of any incident, near miss, injury, illness or notifiable incident arising out of or in connection with the services. The Supplier must cooperate fully with any investigation conducted by KOJO or any regulatory authority;
(ix) consult, cooperate and coordinate activities with KOJO and any other duty holders to ensure compliance with WHS legislation and to enable KOJO to discharge its own WHS obligations;
(x) allow KOJO to audit or inspect the Supplier’s work sites, plant, equipment, documents and practices to verify compliance with this clause. KOJO may direct the Supplier to suspend work if there is an immediate risk to health or safety, at Supplier’s cost until rectified;
(xi) maintain accurate and up-to-date WHS records, including training records, inductions, SWMS, inspection and maintenance logs, and make these records available to KOJO on request;
(xii) maintain all insurances required by law, including workers compensation insurance and public liability insurance covering liabilities arising out of personal injury, death or damage to property, in amounts satisfactory to KOJO, and provide certificates of currency upon request; and
(xiii) insofar as permitted by law, indemnify KOJO against all costs, losses, damages, or penalties which KOJO may suffer or incur (whether as a result of a civil claim or criminal prosecution) arising out of or in connection with any breach by the Supplier of its obligations under this clause.
(c) The Supplier will immediately notify a KOJO representative of any:
(i) occupational health and safety incident or near miss;
(ii) occupational health and safety hazards of which the Supplier is or becomes aware of on a site where Services or Works are being performed or the Goods are being provided to; or
(iii) hazard or safety incident with respect to the location where the Services are being performed, arising out of the performance of the Supplier’s obligations under the Agreement (including supplying, installing, commissioning and/or testing of any Deliverables) of which the Supplier is aware or ought reasonably be aware and providing KOJO with any assistance, as requested, in relation to the incident including any rectification plan or schedule.
(d) The Supplier must ensure its occupational health and safety policies and procedures are relevant at all times to the Works being performed and must provide any policies and procedures to KOJO on request.
6. Warranty
(a) The Supplier warrants to KOJO that the Goods and/or Services:
(i) correspond to the description in the Agreement and conform to all relevant and agreed specifications, drawings, samples and/or descriptions;
(ii) are fit and sufficient for the purpose for which they are intended to be used;
(iii) are of the quality specified or, in the case of Goods where no quality is specified, new and of good merchantable quality, and in the case of Services, are performed with due care, skill and diligence, and to the standard acceptable amongst members of the trade, industry or profession relevant to the Services;
(iv) are carried out in accordance with KOJO’s reasonable directions and to the reasonable satisfaction of KOJO, and carried out by suitably skilled, qualified and licensed personnel;
(v) are free of all defects and will operate satisfactorily and reliably under reasonable conditions;
(vi) are free of all liens and encumbrances and the Supplier has title to them; and
(vii) comply with all relevant laws, regulations, standards, and codes.
7. Title and risk
(a) Risk in the Goods passes to the KOJO immediately upon delivery, subject to clauses 7(b) and 7(c).
(b) Property and title in the Goods supplied to KOJO under the Agreement does not pass to KOJO until all money (including money owing in respect of other transactions between KOJO and the Supplier) due and payable to the Supplier by KOJO has been fully paid.
(c) Where the Goods are supplied for hire purposes, risk and title in the Goods passes to KOJO on a temporary basis immediately upon delivery. Risk and title in the Goods shall revert back to the Supplier on the date specified in the relevant Purchase Order, provided that the Goods are returned in line with any Supplier instructions.
8. Intellectual Property Rights
(a) The Supplier warrants that it owns all Intellectual Property Rights pertaining to the Goods and/or Services under a Purchase Order or has a licence to authorise KOJO to reproduce or use all copyright works or other materials the subject of Intellectual Property Rights supplied by the Supplier to KOJO for the purposes of the Purchase Order. Further, the Customer indemnifies and agrees to keep indemnified KOJO against all Losses incurred by KOJO in relation to or in any way directly or indirectly connected with any breach of any other Intellectual Property Rights in relation to any material supplied by the Supplier.
(b) Unless specifically agreed in writing between KOJO and the Customer, all Intellectual Property Rights in any Goods or Services created by the Supplier on behalf of KOJO vest in and remain the property of KOJO.
(c) Subject to payment of all invoices due in respect of the Goods and/or Services, KOJO grants to the Customer a perpetual, non-exclusive licence to use the Works created or produced by KOJO in connection with the provision of Goods and/or Services under this Agreement for the purposes contemplated by a Purchase Order.
(d) The Supplier agrees that the title to, and Intellectual Property Rights in, all the Material created by the Supplier during the provision of the Goods and/or Services, will upon its creation vest in KOJO.
(e) To extent that the Goods and/or Services contains Material which is the subject of pre-existing Intellectual Property Rights of the Supplier or any third parties, this Agreement does not affect those rights. In this instance, the Supplier shall grant to KOJO a non-exclusive, transferable, irrevocable, paid-up licence for any pre-existing Intellectual Property Rights in the Material to allow KOJO to use, reproduce, adapt, and to perform any other act with respect to copyright, and to exploit or commercialise all such pre-existing Intellectual Property Rights as part of, and any future development of, the Material.
9. Insurance
(a) The Supplier must, at its own cost, maintain comprehensive insurance policies in relation to any liability arising out of the Agreement, and ensure that any of its Suppliers have sufficient insurances for the Services they will perform in relation to the Agreement, including:
(i) workers compensation insurance as required by law:
(ii) public and products liability for an amount of not less than $20,000,000 in the aggregate for any one financial year (if a proprietary limited company);
(iii) professional indemnity for an amount of no less than $10,000,000 for any one financial year (if a proprietary limited company); and
(iv) goods/product care and custody insurance to the value of the Goods on hand in storage and within service vehicles.
(b) The Supplier must provide KOJO with copies of all relevant certificates of currency of the insurance policies:
(i) on the date the Supplier commences providing the Services;
(ii) on each anniversary date of the date the Supplier commences providing the Services; and
(iii) as requested by KOJO within five (5) Business Days of a request being made.
(c) Each policy of the Supplier under this clause must be maintained for the entire period the Supplier provides the Services and for a period of six (6) years from the date on which the Supplier completes the Services.
10. Liability
(a) Nothing in the Agreement shall limit either party’s liability for:
(i) death or personal injury resulting from a breach of duty by that party or from its personnel or from the wilful misconduct or negligence of either party or their personnel;
(ii) for any fraud or fraudulent misrepresentation; or
(iii) to the extent such limitation or exclusion is not permitted by law.
(b) Except as specified in clause 10(a) above, KOJO’s liability under the Agreement shall be limited to the total fees paid to the Supplier under the Agreement in a 12 month period.
(c) KOJO expressly excludes all liability for any special, indirect or consequential loss or damage, or any loss of profit, revenue, business, reputation or goodwill under or in connection with the Agreement.
11. Indemnity
The Supplier shall indemnify KOJO from and against all or any losses, damages, claims, actions, suits, proceedings, demands, costs, and expenses for which KOJO is or may become liable arising out of the Supplier’s performance of the Agreement, or any acts or omissions or negligence of the Supplier, its agent, licensee, employee, or representative in connection with the Agreement. The Supplier’s indemnity will be proportionately reduced to the extent caused or contributed to by KOJO’s negligence or breach of the Agreement.
12. Data
(a) This clause applies where the provision of Goods and/or Services involves the collection, use, transfer, disclosure, storage, or handling of Personal Information in any way.
(b) The Supplier undertakes to KOJO that it will:
(i) maintain technical and organisational security measures to protect against unauthorised or unlawful processing of Personal Information and against accidental loss or destruction of, or damage to, Personal Information, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Information, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Information can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(ii) only process Personal Information for and on behalf of KOJO for the purpose of providing the Goods or performing the Services and in accordance with this Agreement;
(iii) ensure that all personnel who have access to and/or process Personal Information are obliged to keep the Personal Information confidential;
(iv) provide all reasonable assistance to KOJO in responding to any requests in ensuring compliance with its obligations under the Notifiable Data Breach Scheme or Notifiable Privacy Breach Scheme (where applicable) with respect to security, breach notification, impact assessments and consultations with supervisory authorities or regulators;
(v) notify KOJO without undue delay on becoming aware of a notifiable data breach and comply with KOJO’s directions in relation to the handling, investigation and any required notifications in connection with such notifiable data breach;
(vi) comply with any reasonable instructions of KOJO relating to Privacy Law compliance, KOJO’s privacy obligations and the terms of use agreed to by users; and
(vii) not transfer any Personal Information outside of Australia without the prior written consent of KOJO.
(c) KOJO acknowledges that it is solely responsible for providing and obtaining all disclosures, notices, consents and authorisations as required by the Privacy Law in respect of any Personal Information that is collected. KOJO will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the data to the Supplier for the purposes of this Agreement.
(d) In the following circumstances, the Supplier shall cease immediately to use any such Personal Information received from, or on behalf of, KOJO under this Agreement and shall return to KOJO on demand (or at the request of KOJO destroy, permanently erase or permanently and irreversibly de-identify) all Personal Information and copies of those Personal Information in its possession or control:
(i) on termination of this Agreement; or
(ii) upon written request at any time.
(e) The Supplier acknowledges and agrees that KOJO owns all rights in the Personal Information and such data remains the property of KOJO or any of its clients. To the extent strictly necessary, KOJO hereby grants the Supplier a non-exclusive, royalty-free license to use the Personal Information solely for the purposes of providing the Goods or performing the Services under this Agreement.
(f) The Supplier will promptly notify KOJO about any matter which may cause KOJO or any of its clients to become non-compliant with the Privacy Law in respect of the Personal Information and provide such information about remediation as KOJO reasonably requires.
13. Modern Slavery
(a) The Supplier must:
(i) comply with all relevant Modern Slavery standards and regulations as prescribed by legislation;
(ii) implement and maintain appropriate policies, processes, training requirements and due diligence procedures which identify, remedy and eliminate any risks of Modern Slavery in any part of its business, and the business of any related entities; and
(iii) take all reasonable steps to ensure that there are no instances of Modern Slavery in any part of its business or the business of any related entities.
(b) KOJO retains the right to conduct an audit to confirm the Supplier’s compliance with Modern Slavery standards and regulations.
14. Anti-Bribery
(a) Each party hereby agrees that neither it, nor any personnel, has in the negotiations leading up to the entering into of the Agreement taken nor will it take any action that causes the other party to be in violation of any law of any country or any political subdivision thereof in which such party is performing work for the purposes of the Agreement.
(b) Each party acknowledges that it is aware of the provisions of the United States Foreign Corrupt Practices Act of 1977, the United Kingdom Bribery Act 2010, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and of any other equivalent legislation in any territory of the world which may apply (collectively, the Global Anti-Corruption Laws).
(c) Each party agrees that it and all personnel to the extent that such laws apply to each party, have complied in the negotiations leading up to the entering into of the Agreement and will comply with the Global Anti-Corruption Laws in connection with its performance under the Agreement. Each party shall promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by that party in connection with the negotiations leading up to the entering into of the Agreement and with the performance of the Agreement.
15. Termination
(a) Either party may terminate the Agreement by giving 30 days written notice to the other party.
(b) A party may terminate the Agreement (without prejudice to its other rights and remedies) immediately by giving written notice to the other party if:
(i) the defaulting party is in breach of a material term of the Agreement which, unless irremediable, is not remedied to the reasonable satisfaction of the non-defaulting party within 10 Business Days of notice to remedy the breach;
(ii) the defaulting party has breached a material term of the Agreement and that breach is not capable of being remedied or compensated through reasonable compensation;
(iii) the defaulting party fails to pay any amount due by the due date and remains in default for 15 Business Days after being notified in writing to make such payment;
(iv) the party:
(1) is insolvent within the meaning of the Corporations Act;
(2) is presumed insolvent by a court under the Corporations Act;
(3) has an application or order made, proceedings are commenced or a resolution is passed or proposed in a notice of meeting or an application to a court or other steps are taken for the winding up or dissolution of the party;
(4) has an administrator appointed over all or any of its assets or undertaking or any step preliminary to the appointment of an administrator is taken; or
(5) has a controller within the meaning of section 9 of the Corporations Act or similar officer appointed to all of its assets or undertaking.
(c) Termination of the Agreement for any reason shall not affect the accrued rights, remedies, obligations or liabilities of the parties.
(d) Upon termination or expiry of the Agreement for any reason:
(i) each party must immediately cease using the other party’s Confidential Information and immediately return to the other party all Confidential Information of the other party or, if it is not capable of return, destroy it; and
(ii) the parties will be regarded as discharged from any further obligations under the Agreement, except for those obligations which are expressly stated as surviving under the Agreement.
16. Publicity and Social Media
(a) The Supplier acknowledges and agrees that:
(i) it must not make any public announcements regarding the Agreement or the Goods or Services provided, or Works performed, by the Supplier without the prior written consent of a senior KOJO representative;
(ii) when Goods or Services are provided, or Works are performed, on behalf of KOJO, the Supplier is not permitted to use social media in connection with the event (if applicable) and, in particular, is not permitted to make posts on social media regarding any activities conducted at the stadiums in the lead up to the event, any and all social media posts must not be made without the prior written authorisation of a senior KOJO representative; and
(iii) any sound recording, visual footage, audio-visual footage or image of a location, event, project or personnel where the Goods or Services are being provided, or Works are performed, must not be made, created, stored, recorded, transmitted, reproduced or used without authorisation from a senior KOJO representative and until the relevant approval/s can be obtained by KOJO. For the avoidance of doubt, the Supplier must not in any circumstance film, record or take photos of the location, event, project or personnel for personal use.
(b) A breach of this clause will be considered a material breach under clause 15(b)(i) of these KOJO Supplier Terms of Business .
17. Force Majeure
Any party that is subject to a Force Majeure Event (Affected Party) shall not be in breach of the Agreement and shall be excused from performance under the Agreement while and to the extent they are unable to perform due to any Force Majeure Event, provided that the Affected Party:
(a) as soon as reasonably practicable notifies the other party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance;
(b) could not have avoided the effect of the Force Majeure Event by taking reasonable precautions which, having regard to all the matters known to it before the Force Majeure Event, it ought reasonably to have taken, but did not; and
(c) has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under the Agreement in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
18. Dispute Resolution
(a) If written notice of a dispute has been given by one party to the other in relation to the Agreement, the parties will endeavour to first settle the dispute by discussions between them.
(b) If the dispute is not settled through discussion between senior representatives of each party within 10 Business Days of commencing discussions, the parties may agree to refer the matter to mediation in a mutually agreed forum.
(c) If the dispute is not resolved within 10 Business Days of referral to mediation or either party does not agree to mediation, either party may commence proceedings.
(d) This clause will not affect either party’s rights to terminate the Agreement or to seek interlocutory relief in a court of competent jurisdiction.
19. General
(a) The Agreement is governed by the laws of the state or territory of the registered office of the relevant KOJO entity receiving the Goods or Services in accordance with a Purchase Order. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of the relevant state or territory.
(b) The Agreement constitutes the entire agreement of the parties in respect of the matters dealt with in the Agreement and supersedes all prior agreements, understandings, undertakings, and negotiations in respect of the matters dealt with in the Agreement.
(c) Any rights or obligations under the Agreement may not be assigned without the consent of both parties.
(d) The Agreement may not be varied or amended, except in writing signed by both parties.
(e) Any notice, demand, consent, approval, or communication under the Agreement must be:
(i) in writing, in English and signed by a person duly authorised by the sender; and
(ii) delivered by hand, registered mail, or email to the recipient’s address for notice, as varied by any notice given by the recipient to the sender.