1 ORDERS. These Terms and Conditions apply to the sale by Portable Analytical Solutions Pty Ltd (Seller) of products referred to in a quotation or purchase order form (Order) to the party named as Buyer in the Order. Any instruction received by the Seller for the supply of products (the Products) referred to in an Order constitutes an offer by the Buyer to purchase the Products subject to these Terms and Conditions. All Orders are subject to acceptance in writing by the Seller and the Seller may decline any Order in whole or part in its absolute discretion. Once an Order is accepted, the Seller and Buyer will be deemed to have entered into a legally binding agreement (the Agreement) for the sale and purchase of the Products on the Terms and Conditions set out below. The Agreement supersedes any previous understanding or arrangement between the parties. No waiver, consent, amendment or change of any of these Terms and Conditions will be binding on the Seller unless agreed to in writing.
2 PRICE. The price for the Products is specified in the Order subject to adjustment in accordance with these Terms and Conditions. Unless otherwise stated, all prices quoted by the Seller are valid for 30 days subject to adjustment on account of specifications, quantities, raw materials, production costs, shipment and delivery arrangements or other terms or conditions which are not included in the original quote.
3 TAXES AND OTHER CHARGES. Prices for the Products will be quoted exclusive of GST and other taxes and duties imposed with respect to the sale, delivery or use of any Products. However, GST and any other applicable taxes and duties will be added to and included in the purchase price for the Products (the Purchase Price). If the Buyer claims an exemption from any taxes or duties, the Buyer must provide to the Seller a valid, signed certificate or letter of exemption applicable to the relevant jurisdiction. If any exemption claimed by the Buyer is later found to be invalid or inapplicable, the Buyer agrees to indemnify the Seller against any charges or penalties incurred by the Seller.
4 TERMS OF PAYMENT. Unless otherwise stated in the Order, the Buyer must pay 50% of the Purchase Price upon placement of the Order and 50% upon delivery of the Products. If no payment terms are stated on the Order, payments must be made within 30 days from the date of invoice. The Seller may charge interest on any overdue amounts, calculated on daily balances at the rate which is 2% above the bank bill swap rate published by the Commonwealth Bank of Australia from time to time, together with all costs and expenses (including legal fees and expenses) reasonably incurred by the Seller in collecting such overdue amounts. The Seller reserves the right to require from the Buyer full or partial payment in advance or such other security that is satisfactory to the Seller at any time. All payments must be made in Australian dollars.
5 DELIVERY. The Products will be shipped to the destination specified by the Buyer, FOB shipping point. The Seller may elect to make partial shipments of the Products and to invoice each shipment separately. The Seller reserves the right to stop delivery of any Products in transit and to withhold shipments in whole or part if the Buyer fails to make any payment to the Seller when due. All shipping dates are approximate and the Seller will not be liable for any loss or damage resulting from any delay in delivery or any failure to deliver due to any cause beyond the Seller’s reasonable control. If the Seller is unable to deliver any Products due to some cause beyond the Seller’s reasonable control, the Seller reserves the right to either terminate the Order or to reschedule the shipment within a reasonable period of time, and the Buyer will not be entitled to refuse delivery or withhold payment as a result of such delay. Where delivery of any Products is delayed due to any cause within the Buyer’s control, the Products may be placed in storage by the Seller at the cost and risk of the Buyer.
6 CANCELLATION OR CHANGES BY BUYER. Orders accepted by the Seller may not be cancelled or altered in whole or part without the Seller’s written consent. Orders in process may not be changed except with the Seller’s written consent and subject to an appropriate adjustment in the Purchase Price. The Seller may, in its discretion, impose a restocking charge of 20% (twenty per cent) of the price paid for any item authorised by the Seller for return for credit.
7 RETURNS. No Products may be returned for credit without the prior written consent of the Seller except where they have been wrongly supplied or oversupplied. Any request to return Products must be in writing and submitted to the Seller within 5 business days of delivery. If the Seller agrees to accept the return of any Products, the Buyer must comply with the Return Material Authorisation (RMA) and any service data provided by the Seller (which may include biohazard or radiation safety decontamination procedures or other product-specific handling instructions) when returning the Products to the Seller. Returned items must be delivered to the Seller in good order and condition, unused and in their original packaging. Except where Products have been wrongly supplied or oversupplied, the Buyer must the costs of all freight and insurance for the Products.
8 TITLE TO PRODUCTS. Legal and beneficial ownership in the Products will not pass until the Buyer has paid all amounts due in connection with the supply of the Products. Until all outstanding amounts are paid in full, any Products in the Buyer’s actual or constructive possession will be held by the Buyer as bailee only and the Buyer must not attempt to sell, deliver, alter or grant any security or other interest in the Products in favour of a third party except as directed by the Seller in writing. If payment for any Products is overdue, the Seller is entitled, without prejudice to any other rights and remedies, to repossess any Products and to enter premises occupied by the Buyer for that purpose without any obligation to give notice and without incurring any liability to the Buyer. Despite any other provision of these Terms and Conditions, title to any software incorporated within the Products, whether owned by the Seller or a third party, will not pass to the Buyer but will be retained by the Seller or third party (as the case may be), subject to clause 11.
9 RISK. Risk of loss in or damage to the Products lies with the Seller only until the Products are delivered to the carrier. From that time, risk of damage to or loss of the Products from any cause whatsoever passes to the Buyer. The Buyer must keep the Products insured for their full insurable or replacement value at all times until such time as title to the Products passes to the Buyer or the Agreement is terminated.
10 SECURITY INTEREST. By virtue of the retention of title provision in clause 8, the Buyer grants to the Seller a security interest and, in addition, a purchase money security interest in the Products and in the proceeds of the Products within the meaning of the Personal Property Securities Act 2009 (PPSA). The Buyer agrees to sign such further documents and provide such additional information as the Seller may reasonably require for the purposes of registering a financing statement and any financing change statement on the Personal Property Securities Register (PPSR). The Buyer also agrees: (a) not to register a financing change statement (as defined in the PPSA) without the Seller’s prior written consent; (b) to notify the Seller within 5 business days of any change to the Buyer’s details including its trading or contact information; and (c) to pay all costs incurred by the Seller (including legal costs on a full indemnity basis) in registering and maintaining a financing statement on the PPSR and/or enforcing or attempting to enforce the security interest granted to the Seller under these Terms and Conditions.
11 INTELLECTUAL PROPERTY RIGHTS. In relation to any software incorporated in or forming part of the Products, including any related technical knowledge and documentation provided with the Products (the Software Products), the Seller grants to the Buyer a royalty-free, non-exclusive, non-transferable licence (Licence) to use the Software Products solely for and in the Buyer’s own business using the hardware provided with the Products. The Licence terminates automatically when the Buyer’s lawful possession of the Products ceases or the Agreement between the Seller and Buyer is terminated. The Buyer agrees to hold in confidence and not to transfer, loan, distribute, publish or otherwise disclose or deal with any of the Software Products except as specifically authorised by the Seller in writing. The Buyer may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change any of the Software Products without the Seller’s prior written consent. The Seller will be entitled to terminate the Licence if the Buyer fails to comply with any of the terms of the Licence. Upon termination of the Licence, the Buyer must immediately return all Software Products, including all copies, to the Seller.
12.1 Terms . The Seller warrants that, subject to this clause 12, the Products supplied to the Buyer will operate or perform substantially in conformity with the Seller’s published specifications and will be free of defects in material and manufacture when subjected to normal, proper and intended usage by properly trained personnel, for 12 months from the date the Products are delivered to the Buyer (the Warranty Period). The Seller does not warrant that the Products, including any Software Products, will be completely uninterrupted or error-free. The warranty given under this clause 12 (the Warranty) does not cover accessories or consumables, software owned by a third party or Products that have been modified, abused, neglected, accidentally damaged or improperly installed, adjusted or repaired. To the extent permitted by law, the Seller gives no other warranty or representation, whether express or implied, in relation to the Products (including warranties implied by statute other than warranties which cannot be excluded by law).
12.2 Warranty Claims. The Buyer must notify the Seller in writing of any defect covered by the Warranty within 10 Business Days after the defect is first brought to the Buyer’s notice (Warranty Claim). If the Seller accepts a Warranty Claim, the Buyer must comply with the RMA and any service data provided by the Seller (which may include biohazard or radiation safety decontamination procedures or other product-specific handling instructions) when returning the defective Products to the Seller, with all costs of freight and insurance prepaid by the Buyer. If the Seller determines that a Warranty Claim is not covered by the Warranty, the Buyer must pay or reimburse the Seller on demand for all costs of investigating and responding to the Warranty Claim at the Seller’s then applicable rates and charges. If the Seller provides repair services or replacement parts that are not covered by the Warranty, the Buyer must pay the costs of providing those services and/or parts upon demand at the Seller’s then applicable rates and charges.
12.3 Sole and exclusive remedy. If it accepts a Warranty Claim, the Seller will, at its option, either repair or replace any faulty parts, rectify any faulty workmanship or refund the Price paid for the defective Product. To the extent permitted by law, the obligation to repair, replace or refund the price paid for a defective Product constitutes the sole remedy of the Buyer for any defective Product and the Seller will have no other liability to the Buyer whether under these Terms and Conditions, any statute, in equity or otherwise at law (including negligence).
12.4 Exclusions. Any Products that are obtained by the Seller from an original manufacturer or third party supplier are not covered by the Warranty, but the Seller agrees to assign to the Buyer any warranty rights in such Product that the Seller may have from the original manufacturer or third party supplier, to the extent that such assignment is permitted under the Seller’s agreement with the manufacturer or third party supplier. A Warranty Claim is void if the shock sensor fitted inside the Product is activated. The Warranty does not cover defects which result in whole or part from: (a) normal wear and tear; (b) accident, disaster or event of force majeure; (c) the Buyer’s misuse, fault or negligence ; (d) use of the Products in a manner for which they were not designed; (e) external causes such as power failure or electrical power surges; (f) improper storage and handling of the Products; (g) use of the Products in combination with equipment or software not supplied or authorised by the Seller; (h) moderately heavy or excessive impact against any object, including floors, walls, furniture, sample or other objects; (i) excessive water, moisture or condensing humidity that breaches the instrument seals; (j) excessive or extreme ambient or direct temperature; or (k) heavy vibrations directly to the instrument for extended periods of time. Any installation, maintenance, repair, service, relocation or alteration of, or tampering with, the Products by any person other than the Seller or a person authorised by the Seller in writing, or the use of any replacement parts not supplied or approved in writing by the Seller, will render the Warranty void in relation to the affected Products.
13 INDEMNITY AND RELEASE. To the extent permitted by law, the Buyer agrees to indemnify and release the Seller, its officers, employees and agents from and against all losses, damages, liabilities, demands, claims, proceedings, costs and expenses (including without limitation reasonable legal costs) from or in connection with: (a) the Buyer’s failure to comply with any applicable laws, rules, standards or regulations in relation to the Products or the use of the Products; (b) the negligence, wilful misconduct or other breach of duty by the Buyer, its officers, employees or agents, including the Buyer’s obligations under these Terms and Conditions; (c) use of a Product in combination with equipment or software not supplied by the Seller; (d) any unauthorised or improper use, installation or modification of the Products; or (e) the Seller’s compliance with any designs, specifications or instructions supplied by the Buyer to the Seller in relation to the Products or their fabrication.
14 LIMITATION OF LIABILITY. Despite any other provision of these Terms and Conditions and to the extent permitted by law, THE LIABILITY OF THE SELLER UNDER THESE TERMS AND CONDITIONS, OTHER THAN ANY LIABILITY FOR BREACH OF WARRANTY (THE SOLE REMEDY FOR WHICH IS PROVIDED UNDER CLAUSE 12), WILL NOT EXCEED THE TOTAL PURCHASE PRICE PAID FOR THE PRODUCTS GIVING RISE TO SUCH LIABILITY. DESPITE ANYTHING TO THE CONTRARY IN THESE TERMS AND CONDITIONS, THE SELLER WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, LOSS OF PROFIT (WHETHER DIRECT OR INDIRECT) OR LOSS OF BUSINESS OPPORTUNITY, REGARDLESS OF WHETHER THE DAMAGE IS FORESEEABLE OR THE SELLER IS NEGLIGENT.
15 LAWS AND RESTRICTIONS. The Buyer acknowledges that the Products, including any Software Products (Regulated Products) may be subject to export and other government controls and regulations (Regulations) which may restrict or require licences, consents or approvals (Approvals) for the export of any Regulated Products from certain countries. The Buyer must comply with the Regulations and all other applicable laws relating to the export, re-export, and import of any Regulated Products. The Buyer must not, without first obtaining all relevant Approvals: (a) export or re-export any Regulated Products; or (b) export, re-export, distribute or supply any Regulated Product to a country or to a person whose export privileges have been denied or restricted by the Regulations. The Buyer must cooperate fully with the Seller in any official or unofficial audit or inspection related to applicable Regulations, and agrees to indemnify and hold the Seller harmless from, or in connection with, any violation of this clause 13 by the Buyer or its employees, consultants, agents or customers.
16 HAZARDOUS MATERIALS. Some Products may require special packaging, labelling, marking and handling. Carriers may add additional freight charges for handling or transporting these materials. The consolidation of such materials with other Products may be prohibited. Additional freight charges will be billed to the Buyer in accordance with the shipping terms of the Seller and the carrier. The Buyer must notify the Seller in writing in advance of any shipping instructions for these hazardous materials.
17 APPLICABLE LAW. The rights and obligations of the parties under these Terms and Conditions are governed by the laws in force from time to time in New South Wales, Australia. Each party agrees to submit to the non-exclusive jurisdiction of the courts of that State.
18 CONFIDENTIALITY. The Buyer acknowledges that all pricing and technical information provided by the Seller to the Buyer is confidential. The Buyer agrees to keep such information confidential and not disclose such information to any third party except as authorised by the Seller in writing. This obligation does not apply to any information that the Seller has placed in the public domain.
20 NOTICES. Any notice in connection with these Terms and Conditions must be in writing and will be deemed to have been given: (a) if delivered personally, upon delivery; (b) if sent by fax, at the time shown on the confirmation statement generated by the sender’s fax machine; (c) if sent by email, at the time shown on the time-stamp on the sender’s server; or (c) if sent by post, on the third business day after posting.
21.1 In these Terms and Conditions, unless otherwise specified: (a) a person includes a corporation, association, partnership, joint venture or public, statutory or governmental association or agency; (b) a statute, law or regulation includes an amendment, replacement or re-enactment of it; (c) the word “including” or similar expressions are not words of limitation; (d) a reference to conduct includes any omission and any statement or undertaking, whether or not in writing;
21.2 If any provision of these Terms and Conditions is invalid, illegal or unenforceable, these Terms and Conditions take effect (where possible) as if they did not include that provision.
21.3 The Buyer must not assign or otherwise deal with its rights or obligations under the Agreement without the Seller’s prior written consent.