- Acceptance
- Changes
- Delivery, claims, delays
- Allocation of goods
- Payment
- Taxes and other charges
- Warranties
- Buyer's use of products
- Buyer's Representations and Indemnity
- Patent disclaimer
- Returns
- Technical assistance
- Miscellaneous
- Governing Law
All sales are subject to the following terms and conditions, which appear on all packing slips and invoices
1. Acceptance -- ALL SALES ARE SUBJECT TO AND EXPRESSLY CONDITIONED UPON THE TERMS AND CONDITIONS CONTAINED HERIN, AND UPON BUYER'S ASSENT THERETO. NO VARIATION OF THESE TERMS AND CONDITIONS WILL BE BINDING UPON SELLER UNLESS AGREED TO IN WRITING AND SIGNED BY AN OFFICER OR OTHER AUTHORISED REPRESENTATIVE OF SELLER.
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2. Changes -- Orders arising hereunder may be changed or amended only by written agreement signed by both Buyer and Seller, setting forth the particular changes to be made and the effect, if any, of such changes on the price and time of delivery. Buyer may not cancel this order unless such cancellation is expressly agreed to in writing by seller. In such event, Seller will advise Buyer of the total charge of such cancellation, and Buyer agrees to pay such charges, including, but not limited to, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed on Seller by its suppliers, and any other cost resulting from cancellation of this order by Buyer which is permitted by Seller. Certification of such costs by Seller's independent public accountants shall be conclusive on the parties hereto.
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3. Delivery, claims, delays -- All sales are C.I.F destination unless otherwise noted. The general method of shipment for each item is listed in Seller's catalogue. However, Seller reserves the right, in it's discretion, to determine the exact method of shipment. Unstable items whose cost is high in relation to its weight will normally be shipped via air. Inexpensive and heavy items will normally be shipped via surface. If Buyer requests air shipment of items normally shipped surface, the sales will be F.O.B. Sydney. If government or airline regulations significantly increase shipping costs, the Seller reserves the right to ship the material F.O.B. Sydney. Seller reserves the right to make delivery installments, all such installments to be seperately invoiced and paid for when due per invoice, without regard to the subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of Buyer's obligation to accpet remaining deliveries.
Immediately upon Buyer's receipt of any goods shipped hereunder. Buyer shall inspect the same and shall notify Seller in writing of any claims for shortages, defects or damages and shall hold the goods for Seller's written instructions concerning disposition. If Buyer shall fail to so notify Seller within five days after the goods have been received by Buyer, such goods shall conclusively be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by the Buyer.
Seller shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond Seller's reasonable control, including, without limitation, unsuccessful reactions, act of Buyer, embargo or other governmental act, regulations or request affecting the conduct of Seller's business, fire, explosion, accident, theft, vandalism, riot, acts of war, stikes, or other labour difficulties, lightning, flood, windstorm or other acts of God, delay in transportation, or inability to obtain necessary labour, fuel, materials, supplies or power at current prices.
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4. Allocation of goods -- If Seller is unstable for any reason to supply the total demands for goods specified in Buyer's order. Seller may allocate its available supply among any or all Buyers on such basis as Seller may deem fair and practical, without liability for any failure of performance which may result therefrom.
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5. Payment -- Terms of sale are net 30 days of date of invoice, unless otherwise stated. If the financial condition of Buyer results in the insecurity of Seller, in its sole and unfetted discretion, as to the ultimate collectability of the purchase price, Seller may, without notice to Buyer, delay or postpone the delivery of the products; and Seller, at its option, is authorised to change the terms of payment to payment in full or in part in advance of shipment of the entire undelivered balance of said products. In the event of default by Buyer in the payment of the purchase price or otherwise, of any order, Seller at its option' without prejudice to any other of Seller's lawful remedies, may defer delivery, cancel this Contract, or sell any undelivered products on hand for the account of Buyer and apply such proceeds as a credit, without set-off or deduction of any kind, against the contract purchase price, and Buyer agrees to pay the balance then due to Seller on demand. Buyer agrees to pay all costs, including, but not limited to, reasonable attorney and accounting fees and other expenses of collection resulting from any default by Buyer in any of the terms hereof.
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6. Taxes and other charges -- Any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority on or measured by the transaction between Seller and Buyer shall be paid by Buyer in addition to the prices quoted or invoiced. In the event Seller is required to pay any such tax, fee or charge, Buyer shall reimburse Seller therefore, or, in lieu of such payment, Buyer shall privide Seller, at the time the order is submitted, an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
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7. Warranties -- Seller warrants that its products shall conform to the description of such products as provided to Buyer by Seller through Seller's catalogue, analytical data, or other literature. THIS WARRANTY IS EXCLUSIVE, AND SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Seller's warranties made in connection with this sales shall not be effective if Seller has determined, in its sole discretion, that Buyer has misused the products in any manner has failed to use the products in accordance with industry standards and practices, or has failed to use the products in accordance with instructions, if any, furnished by Seller.
Seller's sole and exclusive liability and Buyer's exclusive remedy with respect to products proved to Seller's satisfaction to be defective or nonconforming shall be the replacement of such products without charge or refund of the purchase price, in Seller's sole descretion, upon the return of such products in accordance with Sleer's instructions. SELLER SHALL NOT IN ANY EVENT BE LIABLE FOR ANY INCIDENTAL CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR THE LASS OF USE, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALISE SAVINGS, LOSS OF PRODUCTS OF BUYER OR OTHER USE OR ANY LIABILITY OF BUYER TO A THIRD PARTY ON ACCOUNT OF SUCH LOSS, OR FOR ANY LABOUR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PROJECT INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY SELLER'S GROSS NEGLIGENCE. All claims must be brought within one (1) year of shipment, regardless of their nature.
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8. Buyer's use of products -- Seller's products are intended primarily for laboratory research purposes and, unless otherwise stated on product labels, in Seller's catalogue or in other literature furnished to Buyer, are not to be used for any other purposes, including but not limited to, in vitro diagnostic purposes, in foods, drugs, medical devices, or cosmetics for humans or animals or for commercial purposes. Buyer acknowledges that the products have not been tested by Seller for safety a efficacy in food, drug, medical device, cosmetic, commercial, or any other use, unless otherwise stated in Seller's literature furnished to Buyer. Buyer expressly represents and warrants to Seller that Buyer will properly test, use, manufacture and market any products purchased from Seller and/or materials produced with products purchased from Seller in accordance with the practices of a resonable person who isan expert in the field and in strict compliance with all applicable laws and regulations, now and hereinafter enacted, Buyer further warrants to Seller that any material produced with products from Seller shall nhot be adulterated or misbranded.
Buyer has the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using products purchased from Seller. Buyer also has the duty to warn Buyer's customers and any auxiliary personnel (such as freight handlers etc.) of any risks involved in using or handling the products. Buyer agrees to comply with instructions, if any, furnished by Seller relating to the use of the products and not misuse the products in any manner. If the products purchased from Seller are to be repackaged, relabelled or used as starting material or components of other products, Buyer will verify Seler's assay of the products. No products purchased from Seller shall, unless otherwise stated, be considered to be foods, drugs, medical devices or cosmetics.
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9. Buyer's Representations and Indemnity -- Buyer represents and warrants that it shall use all products ordered herein in accordance with Paragraph No. 8 "Buyer's use of products", and that any such use of products will not violate any law or regulation. Buyer agrees to indemnify and hold harmless Seller, its employees, agents, successors, officers and assigns, from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that Seller may sustain or incur as a result of any claim against Seller based upon negligence, breach of warranty, strict liability in tort, contract, or any other theory of law brought by Buyer, its officers, agents, employees, successors or asigns, by Buyer's customers, by end users, by auxiliary personnel (such as freight handlers, etc.) or by other third parties, arising out of, directly or indirectly, the use of Seller's products, or by reason of Buyer's failure to perform, its obligations contaned herein. Buyer shall notify Seller in writing within fifteen (15) days of Buyer's receipt, of knowledge of any accident, or incident involving Seller's products which results in personal injury or damage to property, and Buyer shall fully co-operate with Seller in the investigation and determination of the cause of such accident and shall make available to Seller all statements, reportsand tests made by Buyer or made available to Buyer by others. The furnishing of such information to Seller and any investigation by Seller of such information or incident report shall not in any way constitute any assumption of any liability for such accident or incident by Seller.
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10. Patent disclaimer -- Seller does not warrant that the use or sale of the products delivered hereunder will not infringe the claims of any patents convering the product itself of the use thereof in combination with other products or in the operation of any process.
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11. Returns -- Goods may not be returned for credit except with Seller's permission, and then only in strict compliance with Seller's return shipment instructions.
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12. Technical assistance -- At Buyer's request, Seller may, at Seller's discretion, furnish technical assistance and information with respect to Seller's products. SELLER MAKES NO WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO TECHNICAL ASSISTANCE OR INFORMATION PROVIDED BY SELLER OR SELLER'S PERSONNEL ANY SUGGESTIONS BY SELLER REGARDING USE, SELECTION, APPLICATION OR SUITABILITY OF THE PRODUCTS SHALL NOT BE CONSIDERED AS AN EXPRESS WARRANTY UNLESS SPECIFICALLY DESIGNATED AS SUCH IN WRITING SIGNED BY AN OFFICER OR OTHER AUTHORISED REPRESENTATIVE OF SELLER.
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13. Miscellaneous -- Seller's failure to strictly enforce any term or condition of an order or to exercise any right arising herunder shall not constitute a waiver of Seller's right to strictly enforce such terms or conditions or exercise such right thereafter. All rights and remedies under this order are cumulative and are in addition to any other rights and remedies Seller may have at law or in equity. Any waiver of a default by Buyer hereunder shall be in writing and shall not operate as a waiver of any other default or of the same default thereafter.
If any provision of this Agreement shall be held to be invalid, illegal or unenforecable, the vailidity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. The paragraph headings herein are for convenience only, they form no part of the terms and conditions and shall not affect their interpretations.
This Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representative, successors and assigns.
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14. Governing Law -- All disputes as to the legality, interpretation, application, or performance of an order or any of its terms and conditions shall be governed by the laws of the State of New South Wales; including its conflict of laws principles.
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