Terms & Conditions

By accepting Koppens Developments Purchase Order for goods and/or services or supplying goods and/or services without order you agree that the following Terms and Conditions will apply.

Koppens Developments Pty Ltd shall use its best endeavors to keep the Terms and Conditions contained herein accurate and up to date and shall not be liable in any way for any incompleteness, inaccuracy or any other errors occurred while this document is uploaded to Koppens Developments Pty Ltd website. In case of any doubt please request for a hard copy (printing fees may apply).

1. DEFINITIONS:

• Contract means a binding legal arrangement to supply goods or services specified in the Purchase Order with Terms and Conditions set forth herein and in the relevant Purchase Order.
• GST means the goods and services tax under the GST Act.
• GST Act means A New Tax System (Goods and Services Tax) Act and includes other GST related legislation.
• Parties means Purchaser / Buyer and Supplier / Subcontractor.
• Purchaser / Buyer means Koppens Developments Pty Ltd (ABN 74 600 199 120).
• Confidential Information shall have the meaning as specified in clause 19 below.
• Delivery Date means the date when the goods are delivered to buyer pursuant to clause 6below.
• Purchase Order means an order for goods and/or services to be provided by the Supplier and the corresponding fees to be paid by the Purchaser / Buyer issued by the Purchaser / Buyer subject to these terms and condition
• Supplier / Subcontractor means the company as specified in the Purchase Order.
• Term means a period during which the Terms and Conditions contained herein are to apply to any contract for delivery of goods and/or services between the Parties. Warranty Period means the period as stated in Project Specific Subcontract Agreement (if any) or twelve (12) months from Purchaser / Buyer practical completion date.

2. APPLICATION:

         2.1 The Supplier / Subcontractor agrees to be bound by these Terms and Conditions each time a Contract for specific delivery is made between the Parties.

         2.2 Accepting these Terms and Conditions does not constitute a Contract to engage Supplier / Subcontractor to deliver specific goods or carry out work or place any obligation on the Purchaser / Buyer to engage the Supplier / Subcontractor to deliver goods or carry out work in the future.

         2.3 The parties agree that the Terms and Conditions contained herein will apply in their entirety, together with specific terms contained in the relevant Purchase Order, to any and all separate Contracts for delivery of goods or/and provision of services made between the parties, unless agreed otherwise in writing.

         2.4 A new and separate Contract to engage Supplier / Subcontractor to deliver goods or carry out work is made between the Parties each time when a valid Purchase Order, issued in accordance to this clause, is accepted by the Supplier / Subcontractor either by explicit acceptance or commencement of work or delivery of goods.

         2.5 The accepted Purchase Order with its specific Terms and Conditions constitutes a part of agreement for the purpose of the Contract and takes precedence over Terms and Conditions contained herein where applicable;

2.6 Supplier / Subcontractor agrees to deliver goods and/or perform the services as described in the Purchase Order and in accordance with the terms and conditions in the Purchase Order and in these Terms and Conditions.

2.7 Terms and Conditions contained herein and in the relevant Purchase Order at each separate instance of entering into Contract between Parties take precedence over any other terms in the Supplier / Subcontractor’s quote, acknowledgement, credit application or any other Supplier / Subcontractor’s documents, unless specifically and explicitly agreed in writing as changes to these Terms and Conditions. Any Project Specific Agreement or Period Trade Agreement concluded between the Parties shall take precedence these Terms and Conditions.

2.8 The Supplier / Subcontractor acknowledges that a Purchase Order is the only valid and legally binding form of ordering goods and/or services under this Agreement and under Purchaser / Buyer’s policies. No ostensible authority on behalf of any Purchaser / Buyer’s agents or staff is to be assumed by the Supplier / Subcontractor.

2.9 By delivering goods or services without a valid Purchase Order Supplier / Subcontractor accepts the risk of Purchaser / Buyer rejecting any liability arising from such unauthorised delivery.

2.10 These Terms and Conditions are non-exclusive. Purchaser / Buyer is free to engage others to provide goods and/or services the same as or similar to Supplier / Subcontractor’s goods and/or services.

3. CANCELLATION OR CHANGE OF PURCHASE ORDERS:

Purchaser / Buyer reserves the right to cancel any Purchase Order at any time prior to shipment of the goods and shall not be subject to any charges or other fees whatsoever as a result of such cancellation. Purchaser / Buyer may by written communication or verbally cancel or make changes to any Purchase Order subject to an equitable adjustment in the price, delivery schedule, or both, where appropriate.

4. 4. PRICES AND TAXES:

4.1 The expression ‘$’ or ‘dollars’ means Australian Dollars unless otherwise provided.

4.2 Prices or fees specified in the applicable Purchase Order will be exclusive of GST unless provided otherwise on the Purchase Order but inclusive of any other incidental costs, taxes and fees including without limitation all freight, insurance and packing charges, all sales, use, excise, added value and similar taxes, and all customs, duties or governmental impositions unless agreed otherwise in writing by the Purchaser / Buyer. All taxes to be paid by Purchaser / Buyer must be separately itemized on the invoice. The Supplier / Subcontractor must provide the Purchaser / Buyer with a Tax Invoice which complies with the GST Act.

4.3 In the event that any payment to be made in respect of any invoice issued by Supplier / Subcontractor pursuant to a Purchase Order is subject by law to any withholding tax, Purchaser / Buyer shall make payment to Supplier / Subcontractor of the amount owing, less a deduction for such withholding tax and shall account to the relevant tax authority for the appropriate withholding tax. Payment of such net sum to Supplier / Subcontractor and to the relevant tax authority of the said withholding tax shall, for the purposes of these Terms and Conditions, constitute full settlement of the sums owing under the relevant Purchase Order. Purchaser / Buyer hereby agrees that it will, upon written request from Supplier / Subcontractor and at Supplier / Subcontractor’s expense, furnish any necessary evidence that may reasonably be required of the payment of the said withholding tax.

4.4 Supplier / Subcontractor warrants that the prices for the goods sold and/or services performed hereunder are not less favourable than those currently extended to any other customer for the same or similar goods in similar quantities and/or services. In the event Supplier / Subcontractor reduces its prices for such goods and/or services prior to accepting Purchaser / Buyer’s Purchase Order or during the term of performance of any Purchase Order for goods and/or services, Supplier / Subcontractor agrees to reduce the prices hereof accordingly. Supplier / Subcontractor warrants that the prices shown in the Purchase Order shall be complete and no additional charges shall be added without Purchaser / Buyer’s express prior written consent. Such additional charges include, but are not limited to, shipping, packaging, labelling, custom duties, taxes, insurance, storage, boxing and crating.

4.5 If a decrease in the price for any goods and/or services becomes effective after Supplier / Subcontractor accepts a Purchase Order for the goods and/or services, but before Supplier / Subcontractor has shipped the goods or performed the services, the price the Purchaser / Buyer will pay will be the price in effect when the Seller ships the goods to Purchaser / Buyer or performs the services. In the event of a price decrease, Supplier / Subcontractor will grant to Purchaser / Buyer a credit with respect to goods and/or services. The price protection credit will be equal to the difference between the price originally paid by the Purchaser / Buyer and the new adjusted price of the goods and/or services less any previously issued credits. If an increase in the price for any goods and/or services becomes effective after Supplier / Subcontractor accepts a Purchase Order for the goods and/or services but before Seller has shipped the goods or performed the services, the price Purchaser / Buyer will pay will be the price in effect when the Seller accepted the Purchase Order from Purchaser / Buyer.

5. PAYMENT TERMS AND INVOICES:

5.1 As full consideration for the delivery of goods and/or performance of the services and the assignment of rights to Purchaser / Buyer as provided herein, Purchaser / Buyer shall pay Supplier / Subcontractor the amount specified in, or calculated based on the applicable Purchase Order. Supplier / Subcontractor shall submit invoices in compliance with the tax legislation in the local jurisdiction and showing at a minimum: applicable Purchase Order number, itemised description of goods and/or services, delivery dockets numbers, quantity, unit prices, extended totals, completion date of services (if any), shipping date, product serial numbers and any other information requested by Purchaser / Buyer.

5.2 Invoices exceeding Purchase Order quantities and/or prices, varying in item descriptions from Purchase Order or in any other way not compliant with requirements of this Clause 5, will only be processed and paid to the extent that they do meet these requirements and match the Purchase Order quantities, prices and item descriptions.

5.3 All properly submitted and undisputed invoices will be paid within forty-five (45) days from end of month, after the date the invoice is received by Purchaser / Buyer. Payment of any invoice shall not constitute acceptance of any goods and/or services.  An invoice may be rejected for noncompliance with any terms and conditions.  Any credit memos due to Purchaser / Buyer’s organisation shall be transacted within five (5) business days.

5.4 All invoices shall be issued in the currency as set out in the Purchase Order, if no currency stated $AUD.

5.5 The mode of payment shall be at Purchaser / Buyer’s sole discretion and all bank charges or back charges relating thereto shall be borne solely by Supplier / Subcontractor.

6. SHIPPING, DELIVERY AND ACCEPTANCE:

6.1 Supplier / Subcontractor shall deliver the goods and/or perform the services as specified in the applicable Purchase Order.

6.2 Supplier / Subcontractor shall package and ship all goods in accordance with such industry standards as may be applicable to ensure that the goods are received by Purchaser / Buyer in good condition and in compliance with the Purchase Order. The applicable Purchase Order number must appear on all shipping containers, packing lists and delivery dockets. Title and risk of loss shall pass to Purchaser / Buyer upon delivery at the destination nominated by the Purchaser / Buyer or upon final acceptance by Purchaser / Buyer whichever is later. Proof of delivery and acceptance must be supplied to the Purchaser / Buyer showing clearly a signature of delivery and acceptance of goods.

6.3 Each instance of separable delivery of goods or services, such as truck, parcel, day work etc. shall be accompanied with a separate delivery docket stating quantity, rates and description of deliverables.

6.4 Purchaser / Buyer reserves the right to refuse shipments and/or performance of services made before or after the date set forth in the Purchase Order. If goods ordered are destroyed prior to the title passing to Purchaser / Buyer or if the delivery of the goods (and/or performance of services) is not completed on time, Purchaser / Buyer may, at its option,  require  delivery  of  substitute  goods  of  equal  quantity  and  quality, terminate the Purchase Order as to items not yet shipped or services not yet rendered and to purchase substitute goods or services elsewhere or to direct Supplier / Subcontractor to ship by the most expeditious means available, all at Supplier / Subcontractor’s risk and expense. Supplier /Subcontractor assumes all risk of loss, damage or destruction to any goods rejected by Purchaser / Buyer. Time for delivery shall be of the essence.

6.5 Acceptance of deliveries non-compliant with the Purchase Order or these Terms and Conditions shall not be deemed a waiver of Purchaser / Buyer’s right to hold Supplier / Subcontractor liable for any loss or damage to Purchaser / Buyer or modify Supplier / Subcontractor’s obligation to make future deliveries in compliance with the terms herein. Shipments which are not compliant with the Purchase Order or these Terms and Conditions may be returned to Supplier / Subcontractor and Supplier / Subcontractor shall pay Purchaser / Buyer for all handling and transportation costs incurred in connection therewith. Supplier / Subcontractor shall bear all costs of shipping, transportation and packing unless otherwise agreed to in writing by Purchaser / Buyer.

6.6 Acceptance by Purchaser / Buyer will occur (i) for services or goods installed by Supplier / Subcontractor, upon completion to the satisfaction of Purchaser / Buyer of any acceptance tests or programs described in the Purchase Order or attachments thereto, as evidenced by any acceptance certificate signed by Purchaser / Buyer; or (ii) for goods not installed by the Supplier / Subcontractor, on the thirtieth (30th) day following receipt of the goods by Purchaser / Buyer, unless Supplier / Subcontractor  is notified in writing within this period that, in Purchaser / Buyer’s sole judgment, the goods do not conform to Supplier / Subcontractor’s specifications, in which event Purchaser / Buyer may return the goods to Supplier / Subcontractor, freight collect, and be refunded all advance payment made therefore.

6.7 For materials supplied and delivered to Purchaser / Buyer sites as part of a DTMR contract, approved materials delivered must be accompanied by a docket sighting the batch number as evidence of compliance with test reports provided by the supplier of conformance with the specification.

6.8 If delivery of the Specified Services is made at a time or place other than stated on the Purchaser Order the Purchaser / Buyer may refuse or reject the Specified Services and may procure similar goods or services elsewhere and the Supplier / Subcontractor shall be liable for any additional costs of the Purchaser / Buyer in consequence thereof.

7. REPRESENTATIONS AND WARRANTIES:

7.1 Supplier / Subcontractor hereby represents and warrants that:

(i) it is authorised to sell the goods and/or performance the services set out in the Purchase Order;

(ii) all goods provided and/or services performed will comply with the descriptions and specifications as set out in the Purchase Order or quote provided by the Supplier / Subcontractor;

(iii) all goods provided are of genuine and authentic manufacture, new and unused, and will throughout the Warranty Period be free from defects in design, materials, workmanship and manufacture, be of satisfactory quality and fit for the purposes communicated by Purchaser / Buyer or if not communicated by the Purchaser / Buyer fit for the purposes as can be reasonably deemed; and

(iv) all services will be performed in a workmanlike and professional manner by employees or subcontractors of Supplier having a level of skills commensurate with the requirements of the agreed upon scope of work and that its performance of services do not and will not infringe any patent, copyright, trademark, trade secret or other proprietary right of any third party. Supplier / Subcontractor hereby agrees that it will make spare parts available to Purchaser / Buyer as per manufacturer’s warranties.

7.2 The foregoing warranties are in addition to all other warranties, express or implied, and shall survive the delivery, performance, inspection, acceptance or payment by Purchaser / Buyer. Purchaser / Buyer’s inspection, test, approval, acceptance or use of any goods will not relieve Supplier / Subcontractor of any warranties specified herein or otherwise applicable. If Purchaser / Buyer identify a warranty problem during the Warranty Period, Purchaser / Buyer will notify Supplier / Subcontractor and may, at its sole option, and at Supplier / Subcontractor’s expense:

(i) require Supplier / Subcontractor to correct any defect or non-conformance;

(ii) return deficient or nonconforming goods to Supplier / Subcontractor for a full refund of amounts paid for those deficient or non-conforming goods;

(iii) correct the deficient or nonconforming goods itself, or

(iv) re-perform the services or any part thereof which fails to conform to Purchaser / Buyer’s specifications. Replaced or repaired goods shall be warranted for the remainder of the warranty period or six (6) months, whichever is longer.

8. TERMINATION:

8.1 Purchaser / Buyer may terminate any Purchase Order upon written notice to Supplier / Subcontractor if Supplier / Subcontractor:

(i) fails to perform or otherwise materially breaches any term of a Purchase Order or Terms and Conditions contained herein and such failure or breach is not remedied within seven (7) days of Purchaser / Buyer’s notice to do so;

(ii) files a petition in bankruptcy, becomes insolvent, or dissolves;

(iii) breaches any confidentiality obligations; or

(iv) assigns or attempts to assign any Purchase Order in whole or in part to a third party without prior written consent of Purchaser / Buyer; or

(v) breach of WHS legislation.

8.2 Purchaser / Buyer may terminate any Purchase Order in whole or in part at its discretion and without any liability to Supplier / Subcontractor for damages or loss (whether direct or indirect) upon thirty (30) days from written notice to Supplier / Subcontractor, except for payment of the price of the goods supplied and services performed and accepted by Purchaser / Buyer prior to the date of termination specified in such notice. Supplier / Subcontractor shall cease to provide goods under the applicable Purchase Order on the date of termination specified in such notice.

8.3 Upon the termination of the Purchase Order for any reason, Supplier / Subcontractor will promptly deliver at the expense of Supplier / Subcontractor and in accordance with Purchaser / Buyer’s instructions to Purchaser / Buyer all work product (whether in process or completed) created by Supplier / Subcontractor pursuant to such Purchase Order prior to the date of termination and all Purchaser / Buyer’s Confidential Information.

8.4 The termination of any Purchase Order shall not affect any obligation of the Parties incurred before the termination date. Notwithstanding the termination or expiration of the Purchase Order, these Terms and Conditions which by their context, intent and meaning are intended to survive the termination or expiration of the Purchase Order shall survive any termination or expiration of the Purchase Order.

8.5 In any case a Purchase Order expires on the first anniversary of its issuance, unless specifically advised otherwise by the Purchaser / Buyer.

9. CHANGE OF THESE TERMS AND CONDITIONS:

The Buyer/Purchaser may, at any time in its absolute discretion, amend (change, delete or add) these Terms and Conditions. Any such amendments shall be published on Buyer/Purchaser’s website as soon as practicable and shall come to effect immediately afterwards. The Supplier shall view the Buyer/Purchaser’s website on a regularly basis to keep up to date with any amendments to these Terms and Conditions. The Buyer / Purchaser shall not be liable for any damage and loss which may arise as a result of any amendment of these Terms and Conditions.

10. INDEPENDENT CONTRACTOR SERVICES:

The parties agree that Supplier / Subcontractor is an independent contractor for all purposes, without express or implied authority to bind Purchaser / Buyer by contract or otherwise. Supplier / Subcontractor is responsible for all costs and expenses incident to performing its obligations under any Purchase Order and shall provide its own supplies and equipment.

11. INSPECTION AND TESTING:

11.1 The Purchaser / Buyer or its designated agent shall have the right of inspection of all work related to the manufacture and/or supply of the Specified Services.

11.2 Acceptance of Specified Services by the Purchaser / Buyer is subject to inspection and testing after delivery, and if the Specified Services are to be installed or incorporated into plant or premises are subject to inspection and testing following such installation or incorporation.

11.3 In every case inspection and testing must be carried out to the satisfaction of the Purchaser / Buyer. If in the opinion of the Purchaser / Buyer the Specified Services do not comply in any respect with specific Purchase Order the Purchaser / Buyer may either reject the Specified Services or return associated goods, and where goods are returned shall be at the Purchaser / Buyer’s expense, such expense is to be deducted from the purchase price. Alternatively, the Purchaser / Buyer may require the Seller / Supplier (at the Supplier / Subcontractor’s expense) to rectify or convert the Specified Services into a condition acceptable to the Purchaser / Buyer.

12. TECHNICAL DATA:

12.1 The Supplier / Subcontractor shall supply with the Specified Services, all engineering, technical, “as constructed” and other data required for the satisfactory use, maintenance, repair, installation or operation of the Specified Services.

12.2 Safety Data Sheets must be supplied with all hazardous chemicals.

13. OWNERSHIP:

13.1 All work product and goods (including without limitation all documentation, user manuals, training materials, guides, specifications and other information relating thereto whether in writing, electronic format or otherwise created or delivered by Supplier / Subcontractor pursuant to a Purchase Order) shall be and remain the sole and exclusive property of Purchaser / Buyer. Supplier / Subcontractor hereby agrees to irrevocably assign and transfer to Purchaser / Buyer and does hereby assign and transfer to Purchaser / Buyer all of its worldwide rights, title and interest in and to the work product and/or the goods including all associated intellectual property rights. All tools and equipment supplied by Purchaser / Buyer to Supplier / Subcontractor shall remain the sole property of Purchaser / Buyer.

13.2 Supplier / Subcontractor warrants that it has all right and authority necessary to confer clear title and ownership to the Purchaser / Buyer in accordance with a Purchase Order. Supplier / Subcontractor irrevocably agrees not to assert against Purchaser / Buyer, any affiliate or holding or parent company of the Purchaser / Buyer, or its direct or indirect customers, assignees or licensees any claim of any intellectual property rights of Supplier / Subcontractor affecting the work product and/or goods and/or the services.

14. SUBCONTRACTING:

14.1 The Supplier / Subcontractor must not subcontract all or any of its obligations under these Terms and Conditions to a person or business regardless of whether they are qualified or skilled to be able to carry out the works required unless prior approval is obtained in writing from the Purchaser / Buyer.

15. INDEMNITY:

15.1 Supplier /Subcontractor shall indemnify, defend, and hold harmless Purchaser / Buyer and Purchaser / Buyer’s officers, directors, employees, successors, assigns, agents, and customers from and against any, and all claims, actions, liabilities, damages, losses, costs, and expenses (including legal fees) arising out of or in any way connected with the goods provided and/or the services performed under any Purchase Order including without limitation:

(i) defective workmanship, quality of material or service

(ii) any claim by a third party alleging that goods or services, the results of such services, or any other products or processes provided under any Purchase Order infringe a patent, copyright, trademark, trade secret or other proprietary right of a third party, whether such are provided alone or in combination with other products, software or processes;

(iii) Supplier / Subcontractor’s failure to comply with any applicable law, statute, rule or regulation, including without limitation, related to privacy and publicity;

(iv) the negligence or wilful misconduct of the Supplier / Subcontractor, its agents or employees;

(v) death or bodily injury to any person; or

(vi) damage or destruction to property, caused by, arising out of, connected with or resulting from the goods and/or the acts or omissions of the Supplier / Subcontractor, its agents, subcontractors.

(vii) the failure of the Supplier / Subcontractors services to comply with or fulfil any term or condition of this Agreement.

15.2 Should Purchaser / Buyer’s use, or use by its employees, contractors, subcontractors or customers, of any goods or services purchased from Supplier / Subcontractor be threatened by injunction or any legal proceeding, Supplier / Subcontractor shall, at is sole cost and expense, either:

(i) substitute fully equivalent non-infringing goods;

(ii) modify such goods so that they no longer infringed but remain fully equivalent in functionality;

(iii) obtain for Purchaser / Buyer, its employees, contractors, subcontractors or customers the right to continue using such goods; or

(iv) if none of the foregoing is possible, refund all amounts paid for the infringing goods.

16. INSURANCE:

16.1 By accepting these Terms and Conditions, the Supplier / Subcontractor warrants that adequate provision has been made for product liability.

16.2 The Supplier / Subcontractor warrants that it has obtained and maintained all insurance cover required by law and by these Terms and Conditions, including but not limited to the following:

(i) Public Liability and Products Liability Insurance

(ii) Workers Compensation and Employers Liability Insurance in accordance with the law of the State in which the work is performed. Such insurance shall be unlimited in respect of common law liability.

16.3 If these Terms and Conditions are endorsed with the words “professional indemnity insurance”, then the Supplier / Subcontractor is required to maintain professional indemnity insurance for the amount stated on the Purchase Order for six years from the date of the Purchase Order.

16.4 As and when requested by the Purchaser / Buyer, the Supplier / Subcontractor shall provide copies of the policies of insurance and certificates of currency.

16.5 If the Supplier / Subcontractor fails to effect or maintain the insurance required in clauses 16.2 and 16.3, the Purchaser / Buyer may affect or maintain the said insurance and recover from the Supplier / Subcontractor as a debt due or set off against any amount payable to the Supplier / Subcontractor, any premium paid by the Purchaser / Buyer.

17. BUILDING CODE:

The Building Code with all relevant changes and amendments applies to this engagement. By agreeing to undertake the works, the Supplier / Subcontractor will be taken to have read and to agree to comply with the Code and Industry Guidelines.

18. 18. FORCE MAJEURE:

In the event that either party is unable to perform any of its obligations under the Purchase Order, or to enjoy any of its benefits because of (or if loss of the goods is caused by) or caused by any event beyond its control and without limiting the generality of the foregoing such events include natural disaster, industrial disputes, the unavailability of equipment or materials, fire, flood, machinery breakdown, civil disturbance, acts of God or actions or decrees of governmental bodies or communications line failure not the fault of, or that could not reasonably have been prevented, avoided or anticipated by the affected party (hereinafter referred to as a “Force Majeure Event” or “Event”), the party who has been so affected shall immediately give notice to the other party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under the Purchase Order shall be immediately suspended.  If the period of non-performance exceeds fifteen (15) days from the receipt of notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may give written notice to terminate the Purchase Order. Except as provided herein, delays in delivery due to Force Majeure Events shall automatically extend the delivery date for a period equal to the duration of such Events; any warranty period affected by a Force Majeure Event shall likewise be extended for a period equal to the duration of such Event.

19. CONFIDENTIALITY:

Unless expressly provided herein, Supplier / Subcontractor agrees not to use, copy, alter or directly or indirectly disclose any of Purchaser / Buyer’s proprietary or confidential information whether written or verbal (“Confidential Information”), except in the course of performing its obligations under a Purchase Order.  Additionally, Supplier / Subcontractor agrees to limit its distribution of Confidential Information to Supplier / Subcontractor’s employees who have a need to know, and to take reasonable steps to ensure that the dissemination is controlled and strictly limited. In no event, will Supplier / Subcontractor use less than the degree of care and means that it uses to protect its own information of like kind, but in any event, not less than reasonable care to prevent the unauthorized use of Confidential Information. Supplier / Subcontractor shall not advertise or release any statement mentioning Purchaser / Buyer or the fact that Seller has contracted to furnish goods to Purchaser / Buyer without the prior written consent of Purchaser / Buyer. Notwithstanding the foregoing Purchaser / Buyer shall have the right to use any information concerning Supplier / Subcontractor’s products, manufacturing methods, or processes which Supplier / Subcontractor shall disclose to Purchaser / Buyer without restriction during the performance of the Purchase Order.

20. 20. LIMITATION OF LIABILITY:

20.1 In no event shall Purchaser / Buyer be liable to Supplier / Subcontractor for anticipated or actual lost profits, loss of business, loss of savings, loss of data or for any indirect, special, incidental or consequential loss or damage however arising (in contract tort or otherwise), even if Purchaser / Buyer has been advised of the possibility of such damage.

20.2 Purchaser / Buyer’s liability in contract tort (including negligence) or otherwise arising under a Purchase Order shall not exceed the amount equal to the fees paid for the good or service that gives rise to the claim.

20.3 Nothing in a Purchase Order shall exclude the Parties’ liability for death or personal injury caused by their negligence.

21. COMPLIANCE WITH LAWS:

21.1 General: Supplier / Subcontractor shall comply fully with all applicable laws and regulations in the performance of a Purchase Order including without limitation all applicable import or export laws and regulations. Supplier / Subcontractor will otherwise comply in any and all respects with all applicable laws, ordinances, rules and regulations and other legal requirements that apply to these Terms and Conditions.

21.2 Customs: Upon Purchaser / Buyer’s request, Supplier / Subcontractor will promptly provide Purchaser / Buyer with a statement of origin for all goods.

21.3 Supplier / Subcontractor will not use any payment or other benefit derived from Purchaser / Buyer to offer, promise or pay any money, gift or any other thing of value to any person for the purpose of influencing official actions or decisions affecting these Terms and Conditions, while knowing or having reason to know that any portion of this money, gift or thing will, directly or indirectly, be given, offered or promised to an employee, officer or other person acting in an official capacity for any government or agency or any political party, party official or candidate for political office.

21.4 Supplier / Subcontractor will at all-times refrain from engaging in any illegal, unfair or deceptive trade practices or unethical business practices. Supplier / Subcontractor shall at its expense obtain any and all permits, licenses, authorizations, and/or certificates that may be required in any jurisdiction or by any regulatory or administrative agency in connection with its activities hereunder. Supplier / Subcontractor shall adhere to Purchaser / Buyer’s rules and policies and disseminate current information and materials as announced or provided from time to time by Purchaser / Buyer to Supplier / Subcontractor. Supplier / Subcontractor shall comply with Purchaser / Buyer’s Code of Ethics and Business Conduct at all times.

22. GENERAL:

22.1 If any provision of these Terms and Conditions or a Purchase Order shall be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

22.2 Any party’s delay or failure to exercise any of its rights under the Purchase Order and/or the terms set out herein shall not be deemed or construed to operate as that party’s waiver of any such rights.

22.3 All notices and other communications hereunder shall be in writing, and shall be addressed to Supplier / Subcontractor’s address for payment or to an authorised Purchaser / Buyer’s representative, and shall be considered given when:

(a) delivered personally,

(b) sent by confirmed facsimile,

(c) sent by email

(d) sent by commercial overnight courier with written verification receipt, or

(e) three (3) days after having been sent, postage prepaid, by first class or certified mail.

22.4 The Purchase Order and  these Terms and Conditions contains the whole agreement between the parties and supersedes all previous written or oral agreements relating to the subject matter.

21.5 The parties acknowledge and agree that:

(a) they have not been induced to enter into a Purchase Order by any representation warranty or other assurance not expressly incorporated into it; and

(b) in connection with a Purchase Order their only rights and remedies in relation to any representation warranty or other assurance are for breach of a Purchase Order and that all other rights and remedies are excluded.

22.6 The provisions of clause 22.4 and 22.5 shall not affect the party’s rights or remedies in relation to any fraud or fraudulent misrepresentation.

22.7 A Purchase Order does not and is not intended to confer any benefit on nor create any right exercisable or enforceable by any third party.

22.8 During the term of the Purchase Order, Supplier / Subcontractor will, and will be responsible for ensuring that its employees, servants, and agents will, whenever on the Purchaser / Buyer’s premises, obey all reasonable instructions and directions issued by the Purchaser / Buyer.

22.9 Supplier / Subcontractor shall keep complete and accurate records of all costs of performance under the Purchase Order, which shall be subject to inspection and audit by Purchaser / Buyer in the event of termination or equitable adjustment or with respect to any Purchase Order for which the price is based on time and cost of materials.

22.10 Supplier / Subcontractor shall not assign or subcontract its obligations under the Purchase Order, in whole or in part, or any interest therein, without Purchaser / Buyer’s prior written consent. If Purchaser / Buyer consents to any assignment or subcontract, Supplier / Subcontractor shall remain liable and responsible for all of its obligations hereunder, and shall guarantee performance by its assignee or subcontractor.

23. GOVERNING LAW AND JURISDICTION:

The Purchase Order shall be governed by the laws of the country and State in which the goods are delivered to or the services are performed. Any dispute or cause of action which arises in connection with the Purchase Order shall be brought before a court of competent jurisdiction in the country and State in which the goods are delivered to or the services are performed. In every case this shall be the court nearest to Cairns.