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Terms and Conditions
1. The seller shall –
| 1.1. | defend all actions, suits or claims; and |
| 1.2. | indemnify, save and hold harmless the Buyer; from liability of any nature of kind, including costs and expenses for or on account of any infringements of any patents registered in the Commonwealth of Australia or elsewhere – |
| 1.3. | by reason of the nature, form or condition of any articles supplied by the Seller in performance of this purchase order; or |
| 1.4. | by reason of use or sale by the Buyer of any such article or articles for the purpose intended or reasonably foreseeable by the Seller; provided that the Buyer shall not obtain any right under this paragraph as to any action, suit, or claim concerning which it does not give to the Seller prompt notice in writing upon learning thereof and full opportunity to defend and dispose of such action, suit, or claim. |
2. If the Seller either as principal or by agent or employee enters upon the premises or property of the Buyer in order to do any work under this contract, including but not limited to construction, erection, inspection, delivery, servicing or repairing, the Seller shall –
| 2.1. | indemnify, save and hold harmless from and against all liability, action, claims and demands on account of personal injuries, including death or property loss or damages to others (including the Seller and employees and invitees of the Seller and of the Buyers), arising out of or in any way connected with the performance of this work and caused by the negligent of wilful act or omission to act of the Seller or a supplier of the Seller or employees or invitees or licensees of either of them; |
| 2.2. | at his own expense, defend any and all actions based on any act or omission to act referred to in paragraph 2.1; and |
| 2.3. | pay all legal charges and all costs and other expenses arising from any act or omission to act referred to in paragraph 2.1 |
3. The Seller shall procure and carry the insurance of employees on the work referred to in paragraph 2 as may be required by any Workmen’s Compensation Act or similar liability act. The Seller shall procure and maintain such other insurances in connection with the work as the Buyer shall specify.
4. If the merchandise covered by this order is standard stock merchandise the Buyer may at its option cancel at any time any unshipped portion of this order without further obligation under this order except to make payment as provided in paragraph 6 for the merchandise actually shipped prior to such cancellation.
5. If this order covers merchandise either manufactured or fabricated to the specifications of the Buyer, than at any time prior to the completion of the work to be performed under this order the Buyer may at its option, cancel this order upon written notice to the Seller. Upon the effective date of such cancellation the Seller shall stop all work under this order except as otherwise directed by the Buyer.
6. Upon any cancellation under paragraph 4 or 5, the Buyer shall pay to the Seller the Seller’s actual out-of-pocket costs and expenses to date of such cancellation including the Seller’s expenses in connection with the cancellation of any sub-contracts, all as determined by the Buyer.
7. Notwithstanding the provisions of paragraph 6, in no event shall the total amount paid by the Buyer under this paragraph exceed the purchase price specified on the fact of this order.
8. Upon payment as specified in paragraph 6 any materials or uncompleted portions of the work shall be the property of the Buyer and subject to its disposition.
9. Notwithstanding anything contained in paragraph 6 the Seller shall not be entitled to any anticipatory profits or any damages caused by cancellation by the Buyer.
10. Nothing contained in these conditions shall affect the Buyer’s right to terminate this order on account of a default by the Seller under any of the terms and conditions of this order or to pursue remedies as provided by law for such default.
11. The Buyer or its representatives shall have full and free access to the shops, factories or other places of business of the Seller, and sub-contactors and suppliers of the Seller, in order that it may inform itself as to the general condition and progress of the work covered by this order.
12. In addition to all warranties as to quality or fitness implied by law the Seller expressly warrants that –
| 12.1. | in the manufacture of the goods specified in this order only the best workmanship and material have been employed; and |
| 12.2. | if in the option of the Buyer any default due to bad workmanship or material exist in the articles and these articles are returned to the Seller, the Seller will at its own expense repair or replace the articles so returned. |
13. The Seller shall furnish for approval of the Buyer all shop drawing and such samples as may be required by the Buyer. All workmanship and materials under and in relation to this order shall be in strict accordance with these approved drawings and samples.
14. The Buyer shall have the right to designate the carrier or delivering agent and routing of these goods and materials, provided that this shall not entail additional costs to the Seller.
15. No packing or boxing or haulage or other transportation charges will be allowed unless specified on the fact of this order.
16. The amounts payable by the Buyer to the Seller under this order are not assignable by the Seller without the prior written consent of the Buyer.
17. All amounts payable by the Buyer to the seller will be paid by Electronic Funds Transfer (EFT). The Seller agrees to provide the necessary details to allow for payment by EFT.
18. The Buyer shall not be bound by any express or implied term, representation, warranty or promise which is not recorded in this order or otherwise recorded in writing and signed by its duly authorised representative.
19. Any indulgence granted by the Buyer to the seller shall not constitute a waiver of any of the rights of the Buyer who shall not be precluded from exercising any rights against the Seller which may have arisen in the past or which may arise in the future.
