1. ENTIRE AGREEMENT, MODIFICATIONS
The terms, conditions and specifications contained in this agreement (“Terms”) constitute the entire agreement between the parties for the provision of goods by SELLER at any time. No change in, addition to, or waiver of the Terms will be a binding obligation on SELLER unless approved in writing by its authorized representative. SELLER’S receipt, acknowledgement and/or acceptance of CUSTOMER’S purchase order form will not modify these Terms or become part of SELLER’S agreement to the extent it contradicts these Terms. If any provision of this agreement is held to be invalid or unenforceable, the balance of this agreement will remain in force.
2. TITLE AND RISK OF LOSS
TITLE of the goods herein described shall pass to CUSTOMER upon full payment of said goods and any prior outstanding debt. RISK OF LOSS passes to CUSTOMER upon delivery of said goods at Sellers plant. Such title to and risk of loss of said goods will not pass to CUSTOMER in any other way, notwithstanding any agreement to the contrary, including, but not limited to, any agreement to pay freight, express or other transportation or insurance charges.
3. PAYMENT AND PRICES
SELLER may, at its option, draw at sight on CUSTOMER or require CUSTOMER to obtain an irrevocable letter of credit in favour of SELLER from an issuer acceptable to SELLER. In the event SELLER does not so draw or require such letter of credit, payment by CUSTOMER will become due thirty (30) days from the date of SELLER’S invoice covering a particular shipment. Such terms of payment by CUSTOMER are of the essence of this agreement. In the event of failure by CUSTOMER to make any payment when due, SELLER may decline to make further shipments until such default is cured. In the alternative, SELLER may elect to continue to make shipments despite the continuance of such default, but such election by SELLER will in no way constitute a waiver of such default nor affect SELLER’S legal remedies thereof. CUSTOMER assumes full responsibility, including reporting and payment, of all taxes, however designated, or other governmental charges arising out of, levied or based upon, or in connection with the sale of the goods herein described, including state and local privilege, sales and use, or excise taxes based on gross revenue or any taxes or amount in lieu hereof paid or payable by SELLER in respect of the foregoing, exclusive however, of taxes paid on net income. In no event will any charges for engineering services imply a conveyance of any design and/or manufacturing rights as to the goods, unless such conveyance is expressly set forth in a separate written agreement signed by authorized representatives of both parties.
SELLER warrants to CUSTOMER that the goods being sold will be free from any liens or encumbrances, and that good title to the goods will be conveyed to CUSTOMER. SELLER warrants the goods against defects in material and workmanship under normal conditions of usage and service for one (1) year from date of shipment. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER’S sole obligation and CUSTOMER’S sole remedy under this warranty is limited to and will be fully discharged by repairing or replacing any defective part.
5. LIMITATION OF LIABILITY
SELLER will not be liable for prospective profits or special, indirect, or consequential damages including without limitation, facility downtime, loss of profit or business interruption whether any such claim or lawsuit be based on tort, contract or otherwise. In no event will recovery of any kind against SELLER be greater than the purchase price of the specific goods sold which caused the alleged damage.
Within ten (10) days after tender of delivery to or receipt by CUSTOMER of any shipment and before any part of such goods (except for reasonable test and inspection quantities) has been changed from its original condition, CUSTOMER will inform SELLER in writing if said goods are found defective or short in any respect. Failure to so inform SELLER or use of said goods (except for reasonable test and inspection quantities) will be conclusive that SELLER has satisfactorily performed.
7. MODIFICATION AND CANCELLATION
SELLER reserves the right to reject any order made by CUSTOMER, including changes. Changes to an order may be subject to price adjustments. Custom orders and orders designed specifically for CUSTOMER cannot be cancelled once the construction material has been ordered and/or production has begun. Cancelled orders will incur charges for materials ordered, design and manufacturing time to the point of cancellation.
8. PATENT INFRINGEMENT
If the goods herein described are to be manufactured by SELLER based on specifications or drawings furnished by CUSTOMER, CUSTOMER agrees to indemnify and hold harmless SELLER, its successors and assigns, against any and all loss, damage, or injury arising out of a claim or suit for alleged infringement of any letter patent granted by Australian or any foreign government relating to the goods herein described. CUSTOMER agrees that in such event it will assume the defence of any and all such suits and pay all expenses incidental thereto.
This agreement may be terminated immediately by SELLER if CUSTOMER is unable to meet its obligations as they mature or in the case of proceeding under bankruptcy against the CUSTOMER, or if receivers for CUSTOMER are appointed or applied for or if any assignment for the benefit of creditors is made by CUSTOMER. This agreement will otherwise remain in full force and effect continuously until either party cancels with a minimum of thirty (30) days written notice to the other party.
10. FORCE MAJEURE
SELLER will not be liable for any loss or damage of any nature whatsoever incurred or suffered as a result of any failures or delays in performance due to any cause or circumstances beyond its control, including but not by way of limitation any failures or delays in performance caused by any strikes, lockouts, or labour disputes, fires, acts of God or the public enemy, riots, incendiaries, interference by civil or military authorities, compliance with the laws of Australia or with the orders or policies of any governmental authority, delays in transit or delivery on the part of the transportation companies or communication facilities, or failures of sources of materials. SELLER may, at its option, make deliveries ratably with reference to itself and all its customers.
11. EXPORT OR IMPORT LICENSE
CUSTOMER will procure at its expense any export or import licenses required for any of the material included in the quotation. For any goods being exported from Australia, CUSTOMER agrees to comply fully with all applicable economic sanctions and export control laws and regulations. Customer shall not – directly or indirectly – sell, provide, export, re-export, transfer, divert, loan, lease, consign, or otherwise dispose of any equipment, product, services, software, source code, technical data, or technology received from SELLER to or via any person, entity, or destination, or for any activity or end-use restricted by laws or regulations of Australia or any other applicable jurisdiction without obtaining all required government authorisations.