Acceptance of this Order will be constituted by supply by the Vendor in accordance with this Order, and shall include accepta nce that the terms and conditions of this Order prevail over any contrary or different terms or conditions contained in the Vendor’s quotation or other documentation; or notwithstanding that a condition in similar terms to this condition may be contained in the Vendor’s quotation or other documentation.
2. PRICE AND PAYMENT OF PRICE
2.1 The Vendor’s price for the goods specified in this Order shall be fixed at the price per unit specified in this Order and is not subject to increase without the Company’s prior approval in writing. The price includes delivery to the address specified in this Order and all applicable Commonwealth and State taxes, duties or charges in effect at the date of this Order.
2.2 No charge will be made by the Vendor or accepted by the Company for boxing, packing, crating, cartage or insurance unless otherwise agreed.
2.3 Payment dates and cash discount periods shall be calculated as from the date of receipt of the goods at the delivery address specified in this Order.
2.4 The Company shall have the right to set off any amount payable by it under this Order against any amount claimed by the Company against the Vendor on any account, without liability for the exercise of that right howsoever the claim may subsequently be determine d.
2.5 It shall be the Vendor’s responsibility to obtain all necessary licences, permits, documentation and like materials concerning the importation, sale and transport of the goods to the Company, and at the Vendor’s expense.
3.1 Quantities of the goods with which the Vendor intends to satisfy this Order (the “goods”) delivered by the Vendor shall accord exactly with the quantities specified in this Order. Any departure from those quantities may be approved by the Company before delivery, in its sole and absolute discretion. Unless so approved, the Company shall not be liable to accept and pay for quantities differing from those specified in this Order.
3.2 The Company shall have the right to nominate a quantity of the goods specified in this Order to be delivered by the Vendor being a quantity less than that specified in this Order upon giving ten business days written notice to the Vendor. In that event, the Vendor shall deliver the lesser quantity in the manner required by this Order and the Company shall pay to the Vendor for the quantities so delivered at the price per unit specified in this Order.
4. DELIVERY AND ACCEPTANCE
4.1 Delivery of the goods shall take place at the address and on the date specified in this Order. The goods cannot be received by the Company without the provision of an invoice by the Vendor, provided however that the signature of the Company or its employees on an invoice is not to be taken as acceptance by the Company of the goods.
4.2 Deliveries shall occur between 9.00 a.m. and 4.30 p.m. on business days unless alternative arrangements are agreed between the Vendor and the Company.
4.3 The Company reserves the right to inspect the goods and to reject them if they are unmerchantable, unfit for the Company’s purpose, defective or otherwise not in accordance with the specifications referred to in this Order. The inspection and rejection may be either at the Vendor’s premises prior to delivery or at the address specified in this Order for delivery, at any reasonable time after deli very.
4.4 All goods when delivered are received subject to subsequent inspection and without prejudice to the Company’s right to reject them.
4.5 If the Company considers that it can repair any of the goods delivered to it by the Vendor which may otherwise be rejected under clause 4.3, this may, at the Company’s absolute discretion, be done by the Company at the Vendor’s expense, and the cost of those repairs shall be paid by the Vendor immediately upon receipt of a notification from the Company that such repairs have been carried out.
4.6. In the event of a rejection of some or all of the goods, the Company shall hold those of the goods which it has rejected for the Vendor’s instructions and at the Vendor’s risk and expense for a reasonable period not exceeding forty business days. If the Vendor’s instructions are not received within this period the Company may return those of the goods which it has rejected to the Vendor’s premises at the Vendor’s risk and expense and any cost incurred by the Company in returning those of the goods shall be payable by the Vendor and may be set off by the Company against any moneys otherwise due by the Company to the Vendor.
4.7 Title to any risk in the goods shall not pass to the Company until delivery is completed in accordance with this Order and the goods are inspected and accepted by the Company. The Vendor shall keep the goods adequately insured until delivery is completed.
4.8 No goods shall be delivered by instalments without the Company’s prior written consent.
4.9 Should the Vendor fail to deliver any goods by the delivery date, the Vendor shall be liable in respect of any consequential loss or damage suffered or expense incurred by the Company as a result.
5. INTELLECTUAL PROPERTY RIGHTS
At the Company’s option the Vendor shall defend, or the Vendor shall assist the Company to defend (at the Vendor’s expense in either case) all suits, actions, claims or proceedings brought against the Company, its servants or agents or persons or corporations acqu iring the goods or goods into which the goods have been incorporated from the Company based on infringement or alleged infringement of any patent, trademark, copyright, design, confidential information or other intellectual property right (whether granted by the Commonwea lth of Australia or any foreign state or the common law) by the sale or use of the goods. The Vendor indemnifies the Company, its servants and agents and such persons or corporations and shall hold them harmless against all such suits, actions, claims and proceedings and costs, expenses or damages arising therefrom including any payment by way of settlement that the Company shall see fit to make.
6.1 All drawings, prints, specifications, samples and data and any drafts or copies thereof (“data”) submitted by the Company for the purpose of this Order remain the property of the Company and shall not be disposed of nor disclosed to others or used directly or indirectly for the purpose of the Vendor or others without the prior written consent of the Company.
6.2 All such data shall be treated as confidential by the Vendor, shall be kept in an appropriate manner to keep it confidential and shall only be disclosed to persons requiring such disclosure and then only to the extent required to fill this Order.
6.3 Upon completion or other termination of work under this Order, the Vendor shall immediately return all such data to the Company.
6.4 All data submitted by the Purchaser for the purpose of this Order to the extent they are not set out in this Order shall be deemed to be incorporated by reference in this Order as if fully set out.
7. ADDITIONAL WARRANTIES
7.1 Without limiting any conditions or warranties of the Vendor which may be implied by law into this Order, the Vendor represents and warrants to the Company that:-
(a) it has the right to sell the goods, which are free from any charge or encumbrance;
(b) once title to and risk in the goods specified in this Order has passed to the Company under clause 4.7 hereof, the Company sh all have and enjoy quiet possession of them;
(c) the goods shall correspond with descriptions contained in this Order and all data submitted by the Company for the purposes of this Order;
(d) the goods shall be fit for the purpose for which goods of that kind are commonly used and any other purpose made known expressly or by implication to the Vendor by the Company;
(e) the goods shall be of merchantable quality and free from defect in material and workmanship; and
(f) the goods shall have the standard of safety that persons generally are entitled to expect from such goods.
7.2 The rights and remedies of the Company under these conditions and warranties or at law or in equity shall not be prejudiced or affected by reason of a claim being made after any inspection, delivery, acceptance or use of the goods by the Company or payment by the Company for the goods.
8.1 The Vendor indemnifies and shall hold harmless the Company and its servants and agents against suits, actions, claims and pro ceedings and costs, expenses and damages arising therefrom concerning the liability of the Company to persons or corporations acquiring any of the goods or goods into which any of the goods have been incorporated or transformed for any loss or damage suffered by those per sons or corporations where that liability arises as a direct or indirect result of a breach by the Vendor of the warranties contained in Clause 7 hereof or of any condition or warranty of the Vendor implied by law into this Order (a “Breach of Warranty”) including without limitation liability of the Company that arises as a result of:-
(a) the Company being, or being deemed to be, a “manufacturer” of the goods for the purposes of Division 2A of Part V, or Part VA, of the Trade Practices Act 1974;
(b) a breach by the Company of the terms of a contract for the supply of any of the goods or goods into which any of the goods have been incorporated, including without limitation any breach of any condition or warranty given by the Company by operation of law, where the liability of the Company in respect of that breach arises as a direct or indirect result of a Breach of Warranty;
(c) the Company supplying any of the goods or goods into which any of the goods are incorporated which are defective in that thei r safety is not such as persons generally are entitled to expect, where that defect arises as a direct or indirect result of a Breach of Warranty.
8.2 The liability of the Vendor under this clause shall not be released or discharged by:-
(a) any time, concession, waiver or other indulgence being given by the Company to any person or corporation;
(b) the existence of any alternative means or sources available to the Company to obtain payment of amounts owed by the Vendor to the Company at any time; or
(c) any amendment of this order or assignment of rights and obligations arising out of this Order.
8.3 Any account stated by the Company shall be prima facie evidence of amounts due to the Company by the Vendor under this clause.
The Company reserves the right to cancel this Order if the goods specified in this Order in the quantities specified in this Order are not delivered on or before the delivery dates specified in this Order, and the Vendor shall have no claim whatsoever against the Company in those circumstances.
Neither the Company nor the Vendor shall assign or purport to assign its rights or obligations under this Order without the prior written consent of the other.
Subject to clause 3.2 hereof, this Order may only be amended or supplemented in writing, signed by both the Company and the Vendor.
12. LAW AND JURISDICTION
12.1 This Order is governed by the law in force in the State or Territory in which delivery is to take place.
12.2 The Company and the Vendor submit to the non-exclusive jurisdiction of the courts of the State or Territory in which delivery is to take place and any courts which may hear appeals from those courts in respect of any proceedings in connection with this Order.