SCOPE OF AGREEMENT– Seller, upon acceptance of an order placed by the Buyer
(Order), will supply the products (Products) specified in the Order to the Buyer, pursuant to
the terms and conditions of this Agreement and Seller’s acceptance of such Order submitted
by the Buyer is expressly limited to the terms and conditions of this Agreement
notwithstanding any contrary provision contained in the Order, invoices, acknowledgments
or other documents. The details of the Products (e.g quantity, price and product specification)
shall be set forth in the relevant Order.
PRICE– The prices payable by Buyer for the Products to be supplied by Seller under this
Agreement will be specified in the applicable Order. All prices exclude transportation, costs
and taxes. The Buyer shall arrange for the transportation of the Products at its cost and shall
be responsible for all payment of taxes including Goods and Service Tax.
TERMS OF PAYMENT –Payment is due 30 days from the date of invoice forwarded to
Buyer by the Seller unless otherwise agreed to by Seller in writing. The Seller shall issue a
tax invoice at the time of acceptance of the Order. Partial shipments and prorated tax
invoices are permitted, if agreed by the Seller. If Buyer does not pay the invoice amount
within the payment period as specified in these Terms and Conditions of Sale, the Buyer will
in addition pay interest of one and half percent (1.5%) per month on the unpaid balance until
paid. Seller may decline to manufacture and/or supply the Products (including withhold
shipment) if Buyer does not pay the relevant invoice in accordance with these terms, or if
Buyer’s credit becomes unsatisfactory to Seller, except on receipt of cash or satisfactory
security. In the event, that the Buyer fails to pay the relevant invoice for more than 90 days,
the Buyer shall reimburse the Seller for any reasonable costs, including legal fees, sustained
by the Seller in collecting such amounts from Buyer.
TITLE, RISK OF LOSS AND FREIGHT TERMS – Risk of the Products shall pass to the
Buyer upon delivery to the common carrier, F.O.B. place of shipment, unless otherwise
agreed to by Seller in writing.
Property and Title to the Products supplied by the Seller to the Buyer will not pass to the
Buyer until such time as the Products have been paid for in full.
PERSONAL PROPERTY SECURITY ACT, 2009
The Buyer acknowledges and agrees that by accepting these terms and conditions, they
constitute a Security Agreement that covers the collateral for the purpose of the Personal
Property Security Act, 2009 (PPSA):
(i) Seller holds a Security Interest over all of the present and after acquired Products
supplied by the Seller to the Buyer and any proceeds of the sale of the Products
(“Collateral”) and, subject to any credit terms provided by the Seller, the retention of
title pursuant to this Agreement will constitute a purchase money security interest as
defined under section 14 of the PPSA (PMSI).
(ii) The PMSI granted herein will continue to apply to any Products or proceeds of sale of
Products coming into existence.
(iii) The Seller will continue to hold a Security Interest in the Products in accordance with
and subject to the PPSA, notwithstanding that the Products may be processed,
commingled or becomes an accession with other Products.
(iv) Any Seller Security Interest will be a continuing and subsisting interest in the
Collateral with priority to the fullest extent permitted by law over all registered or
unregistered Security Interest.
(v) Until title in the Products passes to the Buyer, it will keep all the Products supplied by
the Seller free from harm or disposal and shall ensure all such Products are kept free of
any charge, lien or Security Interest and not otherwise deal with the Products in any
way that will or may prejudice any rights of Seller under this Agreement or the PPSA.
The terms Collateral, Proceeds, Secured Party, Security Agreement and Secured Interest
have the meaning given to them under the PPSA.
TAXES – Prices do not include GST, Sales, Use, Excise or similar taxes. Unless Buyer
furnishes an appropriate tax exemption certificate, Buyer shall pay to Seller any such tax that
Seller may be required to pay or collect under any existing or future law upon or with respect
to the sale, purchase, delivery, ownership, storage, processing, use, consumption, or
transportation of any of the Products sold.
PRODUCT WARRANTY – Seller warrants that its Products shall be free from defects in
material and workmanship and shall substantially conform to Seller’s product specifications
(if provided by the Seller) upon shipment. The product warranty period and the usage
warranty period are each nine (9) months from the date of the delivery to the carrier
(warranty period). If Buyer believes this warranty has been breached, it will provide written
notice to Seller as soon as the defect becomes apparent, but no later than six (6) months from
the date of shipment. If during the warranty period the Products are found to be defective in
material or workmanship or fail to substantially conform to Seller’s product specifications,
Seller will furnish replacement Products, F.O.B. jobsite, or at Seller’s option, refund the
purchase price, provided that the Buyer has stored and used the Products in accordance with
Seller’s instructions and provided further that Seller is given the opportunity to inspect and
test the Products within fifteen (15) days from when the defect becomes apparent and is
given access to all necessary operating records with respect to the use of the Products.
USAGE WARRANTY – In the event Buyer uses the Products, Seller warrants that certain
parameters will be met during usage as per the quotation provided by the Seller of the
Product without much substantial variation and shall substantially conform to the contract
specifications. If the Buyer believes this warranty has been breached, it will provide written
notice to Seller as soon as the defect becomes apparent, but no later than ten (10) days from
the date on which the defect was first detected. If during the warranty period the Products are
found to be defective in workmanship or fails to substantially conform to specifications,
Seller will refund the purchase price, provided the Buyer has stored the Products in
accordance with Seller’s instructions and provided further that Seller is given the opportunity
to inspect and test the Products within fifteen (15) days from when the defect becomes
apparent and is given access to all necessary operating records with respect to the use of the
Products.
THE EXPRESS WARRANTY SET FORTH IN THIS ARTICLE IS EXCLUSIVE, AND
NO OTHER WARRANTIES OF ANY KIND, WHETHER STATUTORY, ORAL,
WRITTEN, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SHALL APPLY.
THE BUYER’S EXCLUSIVE REMEDIES AND SELLER’S ONLY OBLIGATIONS
ARISING OUT OF OR IN CONNECTION WITH DEFECTIVE MATERIAL OR
WORKMANSHIP, WHETHER BASED ON WARRANTY, CONTRACT, AND TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE THOSE STATED HEREIN.
LIMITATION OF LIABILITY – The liability of Seller, its agents, employees, subcontractors
and suppliers with respect to any and all claims arising out of the performance or
nonperformance of obligations in connection with the design, manufacture, sale, delivery,
storage, installation or use of the Products, whether based on contract, warranty, tort
(including negligence), strict liability or otherwise, shall not exceed the Contract Price and
shall in no event include any special, incidental or consequential damages, including without
limitation loss of profits or revenue, loss of use of either or prospective profit by one Party to
the other, or injury to any Party whether arising out of or alleged to have arisen out of breach
of this Agreement, negligence or otherwise; including without limitation loss by reason of
plant shutdown or inability to operate at rated capacity; increased expense of operation of
plant or equipment; increased costs of purchasing or providing equipment, materials, supplies
or services outside of Seller’s scope of supply; or incidental or consequential damages of any
nature. No such claims shall be asserted against Seller, its agents, employees, subcontractors
or suppliers, unless the injury, loss or damage giving rise to the claims is sustained prior to
the expiration of the period of warranty specified herein, and no suit or action thereon shall
be instituted or maintained unless it is filed in a court of competent jurisdiction within one
(1) year after the date the cause of action accrues. This LIMITATION OF LIABILITY shall
to the extent permitted at law apply to and prevail over any and all provisions contained in
any of the documents comprising this Contract.
FORCE MAJEURE – Seller shall not be in breach of this Agreement as a result of any delay
in performing its obligations if such delay is due to anything beyond the reasonable control
of the Seller including but not limited to strikes or other labor troubles; inability to obtain
raw materials, labor, components, supplies, or fuel, for any reason, including default of
suppliers or subcontractors; or any cause which is beyond the reasonable control of Seller,
whether of a similar or dissimilar nature and whether or not existing or foreseeable on the
date of the Agreement or on the scheduled date of commencement of the manufacturing of
the Products. Should any such delay occur, the time for the performance of Seller’s
obligations shall be extended by a period of time equal to the length of the delay plus such
additional time as is reasonably necessary to enable Seller to resume performance of its
obligations. Within a reasonable time after Seller becomes aware of a cause entitling it to an
extension of time in accordance with this paragraph, Seller shall give notice thereof to the
Buyer. Seller shall use reasonable efforts to minimize the delay, but shall not be required to
subcontract work or to work additional hours for which premium time is payable or to
schedule additional work shifts if such subcontracting, additional hours or shifts would not
have been required to meet the schedule except for such delay, unless the Buyer directs that it
be done and agrees to pay all additional charges with respect thereto and provided that the
work directed to be performed is not prohibited by any applicable labor contract or law.
BACKCHARGES – Seller will not be liable whether by backcharge or otherwise, for the cost
of work performed or material or equipment furnished by the Buyer or by third parties unless
such work and the costs thereof have been approved in writing by an authorized
representative of Seller.
NON-FIELD TECHNICAL ADVICE – It is expressly agreed that any non-field technical
advice furnished by Seller with reference to the use of its Products is given free of charge,
and Seller assumes no obligation or liability for the advice given or results obtained. All such
advice is given and accepted at Buyer’s sole risk.
FIELD TECHNICAL ADVICE – If Seller furnishes a Service Engineer to Buyer’s location
for the purpose of providing technical or usage advice, Buyer agrees to pay Seller’s standard
price for that service. Seller disclaims any and all liability for the quality or workmanship of
any usage unless Seller or Seller’s subcontractor is providing the usage labor.
CANCELLATION – In the event of a cancellation of an Order by the Buyer for Products that
are custom manufactured or otherwise made to Buyer’s specifications, Buyer shall pay the
full unit price on any portion of the Products in the process of manufacture or manufactured
but not shipped prior to Buyer’s written notice of cancellation.
OVERAGES – To ensure that Seller can meet the agreed quantities of Products that are
custom manufactured or otherwise made to Buyer’s specifications, Seller may have to
manufacture quantities in excess of the agreed purchase amount. In such event Seller may
ship to the Buyer and Buyer agrees to pay for such extra charges not to exceed ten percent
(10%) of the agreed quantities.
APPLICABLE LAW – This Agreement shall be interpreted and governed in all respects by
the laws of the State of New South Wales.
DISPUTE RESOLUTION: The intent of the Parties is to identify and resolve disputes
promptly. Except as otherwise provided in this Agreement, before attempting to exercise any
legal or equitable remedy, including cancellation of this Agreement for cause, each Party
agrees to do the following: (a) Notify the other Party of the nature of the dispute in
reasonable detail within Ten (10) days after the dispute occurs. (b) Provide a cure period of
not less than Ten (10) days; and (c) Following the cure period, initiate in good faith
negotiations between representatives of each Party nominated for this purpose (d) Within
Twenty One (21) days after commencement of the negotiations as per paragraph (c), either
Party shall be entitled to submit any unresolved dispute for final and binding arbitration. The
Parties shall each pay their own respective arbitration expenses and share equally any third
party costs of the arbitration. The arbitration shall be conducted under the rules (as in force as
of the date of signature of this Agreement) of the Australian Centre for International
Commercial Arbitration (“ACICA”) and the place of arbitration shall be Sydney, Australia.
The language of the arbitration shall be English. There shall be one arbitrator appointed by
mutual agreement of the Parties and in the absence of such agreement, such arbitrator shall
be appointed at the request of either Party by the ACICA. Unless the Parties agree to extend
this period, the Arbitrator will render its award in writing within thirty (30) days of the close
of the hearing. Judgment upon the award may be entered in any Australian court having
jurisdiction over this Agreement. In no event shall the Arbitrator have any right or power to
award punitive or exemplary damages. All and any awards shall be final and binding upon
the Parties who, for the avoidance of doubt, expressly exclude all and any rights of appeal
from all and any awards to the extent that such exclusion may be validly made. Nothing in
this Article shall prevent either party seeking injunctive relief.
ENTIRE AGREEMENT – There are no understandings between the parties hereto as to the
subject matter of this Agreement other than as herein set forth. All previous communications
between the parties hereto, either verbal or written, are hereby abrogated and withdrawn, and
this Agreement constitutes the whole agreement between the parties hereto. This Agreement
cannot be assigned nor may any conditions be modified, except by a duly approved
supplementary agreement signed by both parties. Any provisions of a purchase order which
may be issued after this Agreement has been accepted by Seller and which are in conflict
with the provisions of this Agreement, shall not be binding on Seller. If this Agreement is
incorporated by reference in a purchase order or other document, any commercial terms and
conditions printed on the purchase order or other document shall not apply to the extent that
they conflict with the terms of this Agreement.
