All the products offered for sale by METRIC ENGINEERING P/L (hereinafter “Seller”) or through its distributors or sales representatives are sold subject to the terms and conditions stated herein. This offer of Seller expires thirty (30) days from its date and is subject to alteration or revocation at any time prior to Purchaser’s acceptance. Acceptance by Purchaser of this offer is effective upon Seller’s receipt of a written acceptance from Purchaser. Any acceptance is limited to the terms hereof and any additional, different or inconsistent terms proposed by Purchaser, whether in writing or otherwise, are hereby objected to and rejected by Seller and Seller shall not be bound thereby unless expressly agreed in a writing signed by Seller that such terms and conditions shall supersede those contained herein. Any proposal by Purchaser for additional, different or inconsistent terms shall not operate as a rejection of this offer, unless such variances are in terms of the description, quantity, price or delivery schedule of the products, but shall be deemed a material alteration thereof, and this offer shall be deemed accepted by Purchaser without said additional, different or inconsistent terms.
2. TERMS AND METHOD OF PAYMENT.
All prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms and conditions which are not part of the original price quotation. All invoices shall be due and payable in Australian Dollars, free from any expense to Seller for collection. Unless otherwise stated in the Seller’s proposal, payment terms are cash upon delivery. If Purchaser fails to make payment for the products delivered as herein provided, or, if in Seller’s opinion, Purchaser’s financial condition or other circumstances do not warrant shipment on the terms originally specified in any contract made hereunder, Seller may at any time limit or cancel Purchaser’s credit and may demand payment in cash for delivery of any part of the product. Amounts owed by Purchaser with respect to which there is no dispute shall be paid without set-off for any amounts which Purchaser may claim are owed by Seller and regardless of any other controversies which may exist. The Seller shall be entitled to recover any expenses incurred in any dispute or in collection of invoices, including, but not limited to, reasonable attorney’s fees, whether or not suit is filed.
Any present or future Australia federal, state, municipal or other government or foreign government excise, sales, use, occupational or like taxes, tariffs, customs, and all export duties and other export costs shall be borne by the Purchaser. Prices quoted or accepted by Seller hereunder are subject to increase by the amount of any such tax, tariff, duty or fee, which Seller pays or is required to pay or collect upon sale or delivery of the products. Such increase in price will be paid in the same manner and with the same effect as if originally quoted hereunder by Seller. At Seller’s request, Purchaser shall furnish evidence of payment of any such tax, tariff, duty or fee paid or payable by Purchaser. Any tax exemption certificate or similar document or proceeding required to exempt the sale of the products from sales or use or other tax liability shall be obtained by Purchaser, at its expense, and shall be provided to Seller prior to delivery.
4. BUYER CANCELLATION, RESCHEDULING, RETURNS OR MODIFICATIONS.
Any request for order cancellation, rescheduling, returns or modification by Purchaser must be made in writing and no such action is effective unless approved in writing by Seller. Such cancellation, rescheduling, returns or modification shall be subject to the payment of a charge equivalent to 30% of the purchase price as a minimum. If work already undertaken by the seller at cancellation, constituents more than 30% of the purchase price, then the seller has the right to claim that percentage completed. In the event of cancellation, the seller, in its sole discretion, may accept or reject a request for order cancellation, rescheduling, returns or modification and Purchaser shall have no right to cancel any order.
5. CANCELLATION BY SELLER.
Upon the occurrence of any of the following events, Seller shall have the sole and absolute right to cancel all or any portion of the products ordered pursuant hereto, without any liability to Purchaser thereof: (i) Purchaser makes a general assignment for the benefit of creditors or admits in writing any inability to pay its debts as they mature, or takes advantage of, or files under, any federal or state or foreign insolvency statute or law, including without limitation, the Australian Bankruptcy Code, or consents to the institution of proceedings or the filings of any petition there under, or any proceeding is filed or commenced against Purchaser, under any insolvency statute or law which is not stayed or dismissed promptly or any substantial part of the properties of the Purchaser are placed in the control of a receiver, custodian, trustee or similar official, or Purchaser consents to the appointment thereof; (ii) Seller is prohibited by any cease and desist order, injunction or other valid order, decree, process of law, or restraint of shipping, selling, exporting, importing, or distributing any of the products pursuant to the terms hereof. Seller shall have no liability on account of exercising its right to cancel hereunder.
6. SHIPMENT, DELIVERY, PASSAGE OF TITLE AND LIABILITY FOR LOSS.
For all shipments to domestic (Australian) shipping points, the products shall be shipped FOB Seller’s facility. For all shipments to shipping points outside Australia, the products shall be shipped Inco terms 2000 EXW Seller’s facility. All references in any quote from Seller to EXW shall mean the definition of EXW recognized in Inco terms 2000. For all shipments, the common carrier’s bill of lading, or the Seller’s delivery of the products to the designated common carrier, shall be considered delivery to Purchaser. Title to the products and risk of loss or damage in transit or thereafter shall pass to Purchaser upon Seller’s delivery of the products to common carrier for shipment to Purchaser. In the absence of specific shipping instructions, Seller will ship by the method it deems most advantageous. Transportation charges will be collected from, or if prepaid, will be subsequently invoiced to, Purchaser. Unless otherwise indicated, Purchaser is obligated to obtain insurance against damage to the products being shipped. Unless otherwise specified, the products shall be shipped in standard commercial packaging. When special or export packaging is requested or, in the opinion of the Seller, required under the circumstances, the cost of the same, if not set forth on the invoice will be separately invoiced to the Purchaser. Shipping dates are approximate and are based upon prompt receipt of all necessary information and material at Seller’s facility. For work to be completed on the products furnished by Purchaser, delivery of such completed products will be based on when the product was received by Seller and the quantities and conditions specified. All of the products will be scheduled for shipment in accordance with Seller’s applicable shipping sequence and Seller will confirm in writing, and amend as appropriate, the shipment schedule. Under no circumstances shall Seller be liable for any loss, damage or delay, or for any incidental or consequential damages or loss of profits resulting from any delay in either shipment or in delivery.
7. LIMITED WARRANTY.
Seller warrants to Purchaser that the products sold hereunder conform to Seller’s written specifications for the products and will be free from defects in material, design and workmanship, under normal use and service when correctly stored, installed, used and maintained by Purchaser, for a period of twelve (12) months from date of the product’s initial installation, or eighteen (18) months from date of shipment by Seller, whichever comes first. Components which are subject to normal wear and tear are excluded from this limited warranty. Any component of a product sold to Purchaser that was supplied to Seller by a third-party vendor is excluded from this limited warranty. Seller shall use its best efforts to secure for Purchaser the benefit of the warranties to such components as are available to Seller. Seller does not provide any additional warranties for components manufactured by third-party vendors. This limited warranty only applies if the following conditions are met: (1) Purchaser immediately notifies Seller in writing, during the applicable warranty period, of any claims, specifying in reasonable detail the nature of the warranty claim; (2) the details of the operating conditions were made known to Seller in writing by Purchaser prior to any quotation; (3) the product has been properly installed according to operating instructions; (4) the product has been used only for the application for which it was originally intended; (5) the product has not been altered in any way or improperly maintained; (6) the product is taken out of service by the Purchaser immediately upon discovery or appearance of any defect or operational difficulty. Claims made after the applicable warranty period are not covered by this or any other warranty. Seller shall correct any defect, at Seller’s option, by repairing or replacing defective products or parts. Costs for shipping parts or products to and from the installation point shall be borne by Purchaser. THE ABOVE LIMITED WARRANTY IS SUBJECT TO LIMITATIONS AS SET FORTH HEREIN. THE ABOVE LIMITED WARRANTY IS EXCLUSIVE AND CONSTITUTES SELLER’S SOLE LIABILITY AND PURCHASER’S SOLE REMEDY WITH RESPECT TO ANY CLAIMED NON-CONFORMANCE OF THE PRODUCTS SOLD HEREUNDER AND IS IN LIEU OF ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHER WARRANTY OF QUALITY, WHETHER EXPRESS OR IMPLIED, ALL OF WHICH SELLER HEREBY DISCLAIMS.
8. LIMITATION ON LIABILITY.
SELLER’S LIABILITY UNDER, FOR BREACH OF, OR ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED IN AMOUNT TO THE NET PURCHASE PRICE OF THE PRODUCT SOLD TO PURCHASER BY SELLER HEREUNDER. IN NO EVENT SHALL SELLER BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS BY PURCHASER. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, ECONOMIC, DIRECT, INDIRECT OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT) WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE. THIS EXCLUSION ALSO APPLIES TO ANY LIABILITY WHICH MAY ARISE OUT OF ANY THIRD-PARTY CLAIMS AGAINST PURCHASER.
9. NO OTHER WARRANTIES.
No employee or agent of Seller is authorized to make warranties about the products sold hereunder. Oral or written statements by Seller’s employees or agents (including email), do not constitute warranties, shall not be relied on by Purchaser, and are not part of the agreement of sale. The entire agreement of the parties is embodied in this writing and no other warranties are given beyond those set forth herein. Purchaser hereby acknowledges that it has not entered into this agreement in reliance upon any warranty or representation by any person or entity except for the limited warranties or representations specifically set forth herein.
10. INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT.
Seller agrees to indemnify and defend Purchaser against any claim that a product purchased by Purchaser hereunder, as delivered by Seller, infringes a United States Patent, United States copyright, United States trademark or other United States intellectual property right, provided that Seller is promptly advised of any such claim or action and has sole control of the defense of any such action and all negotiations for its settlement or compromise. If at any time use of the product is enjoined or is discontinued because of a settlement, Seller shall have the right, but not the obligation, at its sole option and expense, to either procure for Purchaser the right to continue using the product, replace or modify the product so that it becomes non-infringing, or grant Purchaser a credit for the product as depreciated and accept its return. Seller shall not have any liability to Purchaser if the infringement or other violation of a third-party right is based in any way upon (i) the use of the products in combination with other components, equipment or materials not furnished by Seller; (ii) use of a product in practicing any process; (iii) any product which has been modified or altered; (iv) the manner in which the product is used even if Seller has been advised of such use; or (v) Seller’s compliance with Purchaser’s designs, specifications or instructions. In no event shall Seller’s total liability to Purchaser under this indemnity exceed the aggregate sum paid to Seller by Purchaser for the products sold hereunder which are the subject of the claims. Except as expressly set forth herein, no representation is made that the products sold hereunder or their manufacture, distribution, sale or use do not infringe on any patents, trademarks or trade names or other rights of third parties and Purchaser agrees to release Seller from and in respect of any and all claims by or through Purchaser, for any such infringement.
11. PROPRIETARY RIGHTS.
(A) Sale Conveys No License. Sale of a product by Seller does not convey any license, expressly or by implication, estoppel or otherwise, under any intellectual property rights of Seller with respect to any inventions of Seller or others, patented or not patented, embodied in Seller’s products, processes, sales literature or manufacturing operations. Seller expressly reserves all rights under such intellectual property rights. No manufacture to Purchaser’s specifications entails ownership by or conveyance to Purchaser of any property right in any invention. (B) Data and Proprietary Rights in Data. Portions of the data supplied are proprietary to Seller. Seller retains for itself all proprietary rights in and to all designs, engineering details and other data pertaining to any product sold hereunder, except where rights are assigned under a writing by a duly authorized officer of the Seller. (C) Reverse Engineering. Buyer covenants that it will not attempt to Areverse engineer@ or otherwise discover Seller’s intellectual property, patentable, patented or non-patented invention, trade secrets, secret processes, or other confidential information embodied or contained in Seller’s products.
12. CONFIDENTIAL INFORMATION.
No information shall be deemed to be given in confidence by Purchaser unless and to the extent it is covered by a separate written agreement. Purchaser is responsible for the security of its own confidential information.
13. SECURITY INTEREST.
Purchaser hereby grants, and Seller hereby reserves, a purchase money security interest in the products sold and the proceeds thereof, in the amount of its purchase price. In the event of default by Purchaser of any of its obligations to Seller, Seller shall have the right, in addition to any other rights and remedies available to Seller, to repossess them without a breach of the peace. A copy of the invoice may be filed with the proper authorities at any time as a financing and/or chattel mortgage, in order to perfect Seller’s security interest. On the request of Seller, Purchaser will execute financing statements and other instruments Seller shall require to perfect its security interest.
14. DELAYS IN DELIVERY AND FORCE MAJEURE.
Seller will make commercially reasonable efforts to meet any delivery date(s) quoted. However, under no circumstances shall Seller be liable to Purchaser for any delay in shipment or failure to meet any quoted delivery date(s) or for any delay in performance hereunder. Seller shall have the right to indefinitely postpone the time for delivery due to unforeseen circumstances or due to a cause beyond its control. Examples of such causes are acts of God, wars, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, strikes, transportation delays or shortages, inability to obtain material or supplies, demand for any products exceeds available supply, interruption for any reason in the manufacture of any products by Seller’s suppliers, or other causes not within Seller’s control. Where only part of Seller’s capacity to perform is excused under this condition, Seller shall attempt to allocate deliveries among its various purchasers in a commercially fair and reasonable manner. Where such allocation has been made, reasonable notice of the estimated quota available to Purchaser shall be given.
15. MISCELLANEOUS PROVISIONS.
(A) No Waiver. The failure of Seller to enforce at any time any of the provisions of this agreement, or to exercise any election or option provided herein, shall not be a waiver and shall in no way be construed as a waiver of such provisions or options, nor in any way be construed to affect the validity of this agreement or any part thereof, or the right of Seller thereafter to enforce each and every such provision. (B) Governing Law. The parties acknowledge and agree that any offer and acceptance by the parties shall be a contract made in the Australia, state of Queensland. All questions pertaining to the validity, construction, interpretation, execution and performance of this agreement shall be construed and governed in accordance to the domestic laws of the state of Queensland, without giving effect to principles of (i) comity of nations or (ii) conflicts of law. If the products purchased hereunder are purchased by a Purchaser residing in a country other than Australia, then the parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from this agreement. (C) Jurisdiction and Venue. Purchaser agrees that the Queensland state courts located in Brisbane shall have exclusive jurisdiction and venue over any dispute arising out of this agreement and sale. Any action commenced in connection with this agreement and sale shall only be brought in such courts and to the extent not otherwise subject to the jurisdiction of such courts, Purchaser hereby agrees to the jurisdiction of such courts and hereby agrees to waive any objection to jurisdiction and to subject itself to the jurisdiction of such courts. (D) Limitation of Actions. No action against Seller, arising out of, or related in any way to this agreement or the products sold hereunder, irrespective of the cause of action, shall be commenced more than two (2) year after the delivery of the product. (E) Assignment. Purchaser shall not assign this agreement or any interest herein, or any rights hereunder, without prior written consent of Seller. Any such assignment or delegation without Seller’s consent shall be null and void, and of no effect. (F) Entire Agreement and Modification. This writing constitutes the final expression of the parties’ agreement, and it is a complete and exclusive statement of the terms of that agreement. This agreement shall not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing not made part of the agreement by express terms. Any modification of the terms herein shall be effective only when embodied in a written agreement signed by Seller. (G) No Indemnification. Unless otherwise expressly provided in writing signed by both parties, Seller does not indemnify, nor does it hold Purchaser harmless, against any liability, losses, damages or expenses (including attorney’s fees) relating to any claim whatsoever, including without limitation, claims for personal injuries, death or property damage related to the products sold hereunder. (H) Purchaser’s Understanding. Purchaser represents and warrants: (1) that it has read and understood these terms and conditions, and (2) that these terms and conditions are fair and reasonable to Purchaser.
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