STANDARD TERMS AND CONDITIONS OF SALE
This document sets forth Seller’s standard sales terms and conditions, together with any conditions contained in the proposal or quotation, if any, previously furnished by Seller (collectively, “Terms”) that will exclusively govern the sale of Seller’s products to Buyer (“Transaction”). If Buyer provide Seller with any pre-printed terms and conditions that appear on any purchase order or other form document, they are rejected and will be of no force or effect. These Terms are deemed a part of and incorporated by reference into all other documents exchanged between Buyer and Seller relating to the sale and purchase of Seller’s products, whether electronic or in writing, including quotations, proposals, acknowledgements, packing slips, invoices and/or purchase orders.
1. TERMS AND ACKNOWLEDGEMENT. Seller’s acknowledgement and acceptance of Buyer’s order is expressly limited to and conditioned upon Buyer’s acceptance of these Terms. This order and any agreements between Buyer and Seller are limited to the terms and conditions of these Terms and the terms and conditions on the face of Seller’s order acknowledgment relating to this order (or Seller’s invoice relating to this order if Seller does not issue an order acknowledgment). Any additional or different terms in Buyer’s forms or other documents are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given such that they will be of no force or effect. No modification of Seller’s terms and conditions will be binding on Seller unless agreed to in writing by Seller. Buyer acknowledges that the prices quoted are based upon the enforceability and acceptance of these Terms, that the price would be substantially higher if these terms did not apply and that Buyer accepts these terms in exchange for such lower prices.
2. AUSTRALIAN CONSUMER LAW. In Australia, our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
3. ADDITIONAL WARRANTY AND LIMITATIONS. In addition to the guarantees under the Australian Consumer Law, Seller may, if provided on Seller’s order acknowledgment relating to this order, extend express, written warranties on Seller’s products in accordance with the terms, conditions and limitations of the applicable warranty (“Warranty”). Products manufactured by Seller or sold by Seller are warranted to be of merchantable quality and to conform to specifications and tolerances provided in the Seller’s order acknowledgment relating to this order (or Seller’s invoice relating to this order if Seller does not issue an order acknowledgment). SELLER SHALL NOT BE LIABLE UNDER THE FOREGOING WARRANTY OR ANY OTHER PART OF THIS AGREEMENT FOR CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, OR FOR ANY AMOUNT MORE THAN THE PURCHASE PRICE FOR THE TRANSACTION INVOLVED, UNLESS OTHERWISE SPECIFIED IN SELLER’S ORDER ACKNOWLEDGEMENT, ANY LEGAL ACTION AGAINST SELLER FOR BREACH OF THE FOREGOING WARRANTY MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER DELIVERY. THIS TIME LIMIT DOES NOT APPLY TO A CLAIM BY THE BUYER UNDER GUARANTEES UNDER THE AUSTRALIAN CONSUMER LAW. ANY AND ALL OTHER WARRANTIES OR CONDITIONS THAT ARE NOT GUARANTEED BY THE AUSTRALIAN CONSUMER LAW ARE EXPRESSLY EXCLUDED WHERE PERMITTED AND THE SELLER’S SOLE RESPONSIBILITY AND THE BUYER’S SOLE AND EXCLUSIVE REMEDY IS AS STATED. To the extent that the manufacturer of the product provides an express warranty and such warranty is transferable, Seller will transfer such manufacturer’s express warranty to Buyer without incurring any liability thereunder.
4. LIMITATION OF REMEDIES. Buyer’s remedy against Seller for any breach of Seller’s obligations in a Transaction or based on any other theory of liability (other than under guarantees under the Australian Consumer Law) will be limited, to the maximum extent permitted by law, to: at Sellers’ option, to Seller’s repair or replacement of any nonconforming product for which Buyer makes a claim in accordance with these Terms, the Warranty and any instructions Seller may give Buyer for the return of the product or otherwise. Buyer must obtain a return authorization from Seller and give Seller a reasonable opportunity to inspect the product and confirm the nonconformity.
5. PRICES, TERMS, SHIPMENT AND DELIVERY SCHEDULES. Unless Seller otherwise agrees in writing, or as may otherwise be provided on the face of Seller’s invoice, Buyer will pay the prices for the products in effect at the time of shipment and all prices are Net 30 Days from date of invoice; no cash discount is allowed; and Buyer may not setoff. In addition to the prices specified, Buyer agrees to pay any and all federal, state or local excise, use, occupational or similar tax now in force or to be enacted in the future, assessed against Buyer or Seller directly due to a Transaction. Unless Seller otherwise agrees in writing (such agreement not to be unreasonably withheld), shipments will be by a carrier and by the route selected by Seller; Buyer must procure that the carrier acts as Buyer’s agent; delivery by Seller to such carrier will constitute delivery to Buyer; and all shipments under Buyer’s order will be made F.O.B. Seller’s shipping point, at which time title and all risk of loss will pass to Buyer, provided that Seller will retain, and Buyer hereby grants to Seller, a security interest in any and all products Seller ships to Buyer until the full purchase price is paid by Buyer. Buyer will pay all freight charges and assume the risks of transportation, including delay, damage and loss, unless we otherwise agree in writing. Any proposed delivery date is Seller’s approximation only and, based upon Seller’s best judgment and estimates as to when Seller will ship the products.
6. VARIATIONS IN QUANTITIES, SHORTAGES AND ALLOCATION. Except for custom products, deliveries scheduled to be made by Buyer over an extended number of shipments may vary from your order in quantities not to exceed ten percent (10%), plus or minus, of each product involved (unless otherwise agreed to in writing) and Seller may, acting reasonably, adjust the billing accordingly. Seller will notify Buyer of any variations in quantities and any adjustments within a reasonable time. Buyer must make all claims for shortages within thirty (30) days of Buyer’s receipt of shipment. Seller will not be responsible for any claim for shortage not reported within that period. In the event of a shortage and/or other contingency due to circumstances beyond Seller’s control or the control of Seller’s suppliers, Seller may allocate production and deliveries among Seller’s customers in such manner as determined by the Seller, acting reasonably.
7. TRANSPORTATION COSTS AND SHORTAGES. When prices include any costs of transportation from point of shipment, any increase in such costs becoming effective after the applicable price is quoted or established by Seller, and any costs for services provided by the carrier at no charge other than the applicable freight rate or tariff, shall be for Buyer’s account. Any extra costs of utilizing substitute methods of delivery, when the intended type of carrier, vehicle or loading or unloading facilities become unavailable, also shall be for Buyer’s account.
8. LATE PAYMENT CHARGE. A late payment charge of an amount as is necessary to reimburse Seller for all reasonable expenses incurred in connection with the unpaid balance, but not exceeding 1.25 percent (1.25%) per month, will be made on all past due accounts. In no event will this charge exceed the maximum rate allowed by law. Buyer also agrees to pay reasonable attorneys’ fees and other costs incurred at collection.
9. PATENT OR TRADEMARK INFRINGEMENT. If the products are manufactured according to Buyer’s specifications, Buyer will defend, hold harmless and indemnify Seller and Seller’s affiliates against any and all claims, liability, costs and/or attorneys’ fees incurred in relation to any claim arising out of Buyer’s specifications and/or design, including any and all claims for patent, trademark and/or other intellectual property infringement.
10. CANCELLATION AND RETURNED GOODS. Seller may cancel orders only with Buyer’s written approval, which shall not be unreasonably withheld. Buyer will need Seller’s approval, and Seller’s issuance of a return authorization, which shall not be unreasonably withheld, before returning any products to Seller. If, through no fault of Seller, Buyer cancels an order, in whole or in part, that incorporates special material, parts, components and/or other items that Seller does not typically buy, sell and/or use in connection with Seller’s standard product offerings, Buyer will pay Seller: (a) the
previously agreed upon-price of all completed items; (b) the cost of any materials and supplies that Seller has purchased in order to perform and which Seller cannot use for other or similar purposes or readily resell at Seller’s full cost; and (d) all other reasonable costs and expenses directly related to the cancellation.
11. DEFAULT. If Seller defaults on a material obligation, Buyer will provide written notice to Seller specifying Seller’s default and Seller shall have sixty (60) days to remedy such default. If such default is not excusable under any provision of these Terms, and Seller has not remedied such default within sixty (60) days after Seller’s receipt of such notice of default, Buyer may terminate the uncompleted portion of the Transaction, in whole or in part, by providing thirty (30) days’ prior written notice of termination to Seller, during which Seller shall have the right to cure such default. If Seller delivers nonconforming products to Buyer, Buyer will have the rights set forth in Paragraph 4 of these Terms, but such delivery will not be deemed a default for which Seller’s performance may be terminated.
12. PATENTS, INVENTIONS, TECHNICAL DATA AND INDEMNIFICATION. Buyer does not and will not acquire ownership of or any other rights in Seller’s patents, inventions, technical data and/or other intellectual property (such as brands, trade names and copyrights) under any order, regardless of when such patents, inventions, technical data and/or other intellectual property may be or have been issued, conceived, generated or produced. Seller reserves all its rights in its patents, inventions, technical data and/or other intellectual property and Buyer will not reproduce or use it for any purpose whatsoever without Seller’s prior written permission. Seller may provide technical assistance and information to Buyer in connection with the sale of Seller’s products, but such technical assistance and information are
furnished for Buyer’s accommodation and Buyer is solely responsible for Buyer’s purchase and business, including the application of such information, using Buyer’s own technical expertise and know-how. Buyer shall indemnify, defend and hold harmless Seller and Seller’s affiliates, and their respective officers, directors, employees and agents, from and against all liabilities, losses, claims, costs and expenses (including reasonable attorneys’ fees) related to any claim, investigation, litigation or proceeding (whether or not Seller is a party) that arises or is alleged to arise from Buyer’s acts or omissions under these Terms or in any way with respect to Seller’s products, other than acts or omissions caused or requested by Seller.
13. ASSIGNMENT. Buyer cannot assign any order or any claim against Seller arising directly or indirectly out of or in connection with an order without Seller’s prior written consent. Seller may assign, without consent, any Transaction and these Terms to any subsidiary or affiliate of Seller or to an entity or person that acquires all or substantially all of the business to which the Transaction and these Terms relate.
14. GOVERNING LAW. These Terms shall be governed by and construed in accordance with the laws of New South Wales, Australia, without regard for conflict of laws principles. Each Party hereto irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia in any action or proceeding arising out of or related to these Terms and irrevocably agrees that all claims in respect of any such action shall be heard and determined in such court. Buyer and Seller irrevocably waive, to the fullest extent possible, the defence of an inconvenient forum to the maintenance of such action or proceeding.
15. SELLER REMEDIES. Seller’s rights and remedies will be cumulative and additional to all other remedies provided by law or equity. Seller will be entitled to recover all costs and attorneys’ fees in the enforcement or defense of any rights under these Terms or with respect to any Transaction.
16. HEADINGS. The headings and section number used in these Terms are for convenience of reference only, and shall not affect the meaning, application, interpretation or construction of these Terms.
17. WAIVER. The failure of Buyer or Seller to enforce or insist upon compliance with any of these Terms shall not constitute a general waiver or relinquishment of any such Terms, but the same shall be and remain at all times in full force and effect.
18. SEVERABILITY. Each condition, provision, section or term of these Terms are intended to be severable. If any condition, provision, section or term, or portion thereof, of these Terms are declared by a court of competent jurisdiction to be illegal, unenforceable or invalid for any reason whatsoever, such illegality, unenforceability or invalidity shall not affect the validity of any of the remainder of these Terms. If these Terms, or any portion thereof, shall be invalidated on any ground by any court of competent jurisdiction, Buyer and Seller agree that such declaration shall not affect the legality, validity, or enforceability of any remaining provision, which shall continue in force and effect as if these Terms had been executed without such provision.
19. ENTIRE AGREEMENT. To the extent permitted by law, including the Australian Consumer Law, these Terms contain the entire agreement relating to each Transaction. These Terms may not be waived, changed, modified, extended or discharged except by an agreement in writing that is signed by an authorized representative of the party against whom enforcement of any such waiver, change, modification, extension or discharge is sought.