AlleyA Pty Ltd T/as Xcyte Cables (95 161 692 824)

Standard Terms and Conditions of Sale (January 2015)

 

  1. Applicable Terms: These terms and conditions govern the purchase and sale of the products. Product referred to in AlleyA P/L purchase order, quotation, proposal or acknowledgment, as the case may be (“AlleyA P/L Documentation”). Whether these terms and conditions are included in an offer or an acceptance by AlleyA P/L to any person to whom AlleyA P/L is to supply any Product (“Buyer”), such offer or acceptance is conditioned on Buyer’s consent to these terms and conditions. AlleyA P/L rejects all additional or different terms in any of Buyer’s purchase order or documents.
  2. Quotation: All quotations by AlleyA P/L are subject to change or withdrawal without prior notice to Buyer, unless specifically stated in the quotation. Quotations are made subject to the approval by AlleyA P/L of Buyer’s credit. All sales contracts and orders only become effective when approved and accepted in writing by AlleyA P/L as set out in AlleyA P/L Documentation.
  3. Payment: Buyer shall pay AlleyA P/L the full purchase price as set out in AlleyA P/L Documentation, or where no price has been quoted (or a quoted price is no longer valid), the price listed in AlleyA P/L price list current at the date of acceptance of the Buyer’s purchase order. Unless AlleyA P/L Documentation provides otherwise, freight, storage, insurance and all taxes, duties or other governmental charges relating to the Product (or any included services) shall be paid by Buyer. If AlleyA P/L is required to pay any such charges, Buyer shall immediately reimburse AlleyA P/L. AlleyA P/L may also at any time assess a fuel or energy surcharge (in addition to the price of each Product). All payments are due within 15 days of the date of invoice. If Buyer fails to make payment of the due date then, without prejudice to any other right or remedy available to AlleyA P/L, AlleyA P/L shall be entitled to (i) apply a monthly interest charge at the lower of 15% interest per month or the maximum legal rate on all amounts not received by the due date (such interest will be calculated and will accrue daily from the date for payment until the date AlleyA P/L actually receives payment) or (ii) cancel the purchase order contract or suspend any further deliveries to the Buyer. Buyer shall pay all of AlleyA P/L reasonable costs (including lawyers’ fees) incurred in collecting amounts due but unpaid. All sales are subject to the approval of AlleyA P/L credit department. Payment must be made for the initial order at the time the order is placed. Minimum order requirement of $1500.00 apply.
  4. Delivery: AlleyA P/L will use its reasonable endeavours to provide the Products (and any included services) in accordance with the delivery times quoted in AlleyA P/L Documentation. Unless AlleyA P/L Documentation provides otherwise, delivery terms are Ex- Works AlleyA P/L facility (INCOTERMS 2010). AlleyA P/L assumes no liability due to delays, including any direct or consequential damages due to a delay in delivery. All risk and title in a Product passes to the Buyer (i) in the case where AlleyA P/L has agreed to arrange the delivery of the Products, upon delivery of the Products by AlleyA P/L to the Buyer’s premises and (ii) in any other case, upon the Products, the subject of a Purchase Order, being ready for dispatch or collection by the buyer from AlleyA P/L premises. AlleyA P/L retains and Buyer hereby grants to AlleyA P/L a security interest in the Products shipped by AlleyA P/L to Buyer hereunder until payment in respect of the Products is received by AlleyA P/L. Buyer has the obligation to insure once title passes.
  5. Services: AlleyA P/L will provide such services as are expressly described in AlleyA P/L Documentation (or other document executed by AlleyA P/L) during normal business hours, unless otherwise specified. Services requested or required by Buyer outside of these hours or in addition to the quoted or agreed upon services will be charged at AlleyA P/L then current schedule of rates, including overtime charges, if applicable, and will be in addition to the charges outlined in AlleyA P/L Documentation (or other document executed by AlleyA P/L).
  6. Changes: The Buyer may, from time to time, either in writing or by telephone, request AlleyA P/L to vary any provision of a Purchase Order. AlleyA P/L will use reasonable endeavours to accommodate any such request for variation (but shall not be liable to the Buyer to the extent it is not able to accommodate any such request).
    • Where AlleyA P/L accommodates the Buyer’s request for a variation, and where such variation involves an increase in the Products or Services to be supplied under a purchase order, the Buyer will within 10 days of its receipt of the relevant AlleyA P/L invoice pay to AlleyA P/L all additional amounts reasonably incurred and invoiced by AlleyA P/L as a result of such variation. If the variation involves a reduction in the Products or Services to be supplied under a purchase order, AlleyA P/L will reduce any amounts payable by the Buyer for Products or Services which, as a result of such variation, are no longer to be supplied under a purchase order.
    • AlleyA P/L may change the manufacturer’s specifications from time to time of any Product to take into account improvements of design and unavailability of materials without obtaining the Buyer’s approval if, in the reasonable opinion of AlleyA P/L, the changes (i) improve the Product’s function, operation or use or (ii) do not result in the Product differing in any substantial way from the original specifications of the Product as were relevant at the time the Customer made a Purchase Order. In all other cases, AlleyA P/L will obtain the Buyer’s written approval prior to making any changes to Product specifications.
  7. Cancellation: Buyer may not cancel its order after AlleyA P/L acceptance unless all the details are approved in writing by the parties, including Buyer’s agreement to pay a stated amount of termination charges.
  8. Product Returns: Products may not be returned for any reason without prior written authorisation and shipping instructions from AlleyA P/L. Products shipped without AlleyA P/L authorisation shall be retuned at Buyer’s expense. Credit for any returned Products is at the discretion of AlleyA P/L after receipt and inspection of the Products and may be subject to a restocking charge.
  9. Warranty:
    • (a) THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO ANY OF THE PRODUCTS, NOR IS THERE ANY OTHER WARRANTY EXPRESS OR IMPLIED, EXCEPT AS PROVIDED FOR IN THESE TERMS AND CONDITIONS.
    • (b) For a period of twelve months from the date of delivery from AlleyA P/L (the “Warranty Period”), AlleyA P/L warrants that Products manufactured by AlleyA P/L when properly installed and maintained, and operated at ratings, specifications and design conditions specified by AlleyA P/L, will meet AlleyA P/L specifications for such Products appearing in its Product catalogues and literature or in any other AlleyA P/L Product quotations. AlleyA P/L liability under any Product warranty is limited solely (in AlleyA P/L discretion) to replacing, repairing or issuing credit for Products which fail to meet AlleyA P/L specifications for such Products during the Warranty Period.
    • (c) AlleyA P/L further warrants that all services will be performed in a workmanlike manner and that AlleyA P/L will use suitably qualified personnel (this warranty shall survive for 90 days following AlleyA P/Ls completion of the services). AlleyA P/L liability under any service warranty is limited (in AlleyA P/L discretion) to repeating the service that during the foregoing 90-day period does not meet this warranty or issuing credit for the nonconforming portion of the service.
    • (d) If AlleyA P/L determines that any warranty claim is not, in fact covered by the foregoing warranties, Buyer shall pay AlleyA P/L its customary charges for any additionally required service or Products. Buyer shall notify AlleyA P/L promptly in writing of any claims and provide AlleyA P/L with an opportunity to inspect and test the Product claimed to be defective. Buyer shall provide AlleyA P/L with a copy of the original invoice for the Product, and prepay all freight charges to return any Products to AlleyA P/L factory, or other facility designed by AlleyA P/L. All claims must be accompanied by full particulars, including system operating conditions, if applicable.
    • (e) In no event shall AlleyA P/L be liable for any Product altered outside of AlleyA P/L factory by someone other than AlleyA P/L or for a Product subjected to misuse, abuse, improper installation, application, operation, maintenance or repair, alteration, accident, or for negligence in use, storage, transportation or handling or other negligence of Buyer.
  10. Ownership of Materials: All devices, designs (including drawings, plans and specifications), estimates, prices, notes, electronic data and other documents or information (“Materials”) prepared or disclosed by AlleyA P/L, and all related intellectual property rights, shall remain AlleyA P/L property. AlleyA P/L grants Buyer a nonexclusive, non-transferable license to use such Materials to the extent necessary and solely for Buyer’s use of the Product purchased by the Buyer from AlleyA P/L hereunder. Buyer shall not disclose such Materials to third parties without AlleyA P/L prior written consent. As a condition to AlleyA P/L delivery to Buyer of the Products, Buyer shall not, directly or indirectly, and shall cause its employees, agents and representatives not to: (i) alter or modify the Products, (ii) disassemble, decompile or otherwise reverse engineer or analyse the Products, (iii) remove any Product identification or proprietary rights notices, (iv) modify or create derivative works, (v) otherwise take any action contrary to AlleyA P/L rights in the technology and intellectual property relating to the Products, and/or (vi) assist or ask others to do any of the foregoing.
  11. Patent or Trademark Infringement and Product Liability: Buyer has no authorisation to make any representation, statement or warranty on behalf of AlleyA P/L relating to the Products sold hereunder. Buyer shall indemnify and defend, at its own expense, AlleyA P/L against claims or liability for any applicable patent, trademark or other intellectual property infringement and for product liability arising from the preparation or manufacture of Products according to Buyer’s specifications, or from Buyer’s unauthorised use of AlleyA P/L Products or from any changes or alterations to AlleyA P/L Products made by persons other than AlleyA P/L or improper uses of AlleyA P/L Products or from the manufacture or sale or use of Buyer products which incorporate or integrate AlleyA P/L Products.
  12. Force Majeure: Under no circumstances shall either AlleyA P/L or Buyer have any liability for any breach (except for breach of payment obligations) caused by extreme weather or other act of God, strike or other labour shortage or disturbance, fire, accidents, war or civil disturbance, delay of carriers, failure of normal sources of supply, act of government or any other cause beyond such party’s reasonable control.
  13. LIMITATION OF LIABILITY: IN NO EVENT WILL ALLEYA P/L BE LIABLE FOR ANY DAMAGES, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHERWISE, INCLUDING LOSS OF PROFIT, REMANUFACTURING COSTS AND REWORK COSTS, AND LOST BUYER PRODUCT COSTS (OTHER THAN PRICE OF ALLEYA P/L PRODUCT AND ALLEYA P/L SERVICES) WHATEVER THE CLAIM (TORT, BREACH OF CONTRACT OR WARRANTY OR OTHERWISE) AND WHATEVER THE FORUM, WHETHER ARISING OUT OF OR IN CONNECTION WITH THE MANUFACTURE, PACKAGING, DELIVERY, STORAGE, USE, MISUSE OR NON-USE OR RESALE OF ANY OF ITS PRODUCTS OR SERVICES OR ANY OTHER CAUSE WHATSOEVER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT WILL ALLEYA P/L BE LIABLE FOR ANY LOSSES OR DAMAGES IN EXCESS OF THE PRICE PAID TO ALLEYA P/L WITH RESPECT TO THE PRODUCTS AND SERVICES SOLD TO BUYER UNDER THESE TERMS AND CONDITIONS.
  14. Set-off: The Buyer may not seek to effect or effect any set-off against any liabilities due by AlleyA P/L to the Buyer against any liabilities due or which may fall due by the Buyer to AlleyA P/L, and vice versa.
  15. Export Control: As a condition to AlleyA P/L delivery to Buyer of the Products and/or parts thereof, Buyer agrees, with respect to the exportation or resale of the Product and/or parts thereof by Buyer, to comply with all requirements of the International Traffic in Arms Regulations (“ITAR”) and the Export Administration Regulations (“EAR”), regulations issued there under and any subsequent amendments thereto, and all other National, including but not limited to European and United States, government laws and regulations on export controls, including laws and regulations pertaining to export licences, restrictions on export to embargoed countries and restrictions on sales to certain persons and/or entities.
  16. Confidentiality: If AlleyA P/L discloses or grants Buyer access to any research, development, technical, economic, or other business information of “know-how” of a confidential nature, whether reduced to writing or not, Buyer will not use or disclose any such information to any other person or company at anytime, without AlleyA P/L prior written consent. In the event that the Buyer and AlleyA P/L have entered into a separate confidentiality agreement, the terms and conditions of such agreement shall take precedence over the terms of this paragraph.
  17. Miscellaneous: These terms, together with any quotation, purchase order or acknowledgement issued or signed by AlleyA P/L, comprise the complete and exclusive statement of the agreement between the parties (“Agreement”) and supersede any terms contained in Buyer’s documents, unless separately signed by AlleyA P/L. No part of these terms and conditions may be changed or cancelled except by a written document signed by AlleyA P/L and Buyer. No course of dealing or performance, usage of trade or failure to enforce any term shall be used to modify these terms and conditions. If any of these terms are unenforceable, such term shall be limited only to the extent necessary to make it enforceable, and all other terms shall remain in full force and effect. These terms and conditions and the contract between AlleyA P/L and the Buyer shall be governed by the laws of Victoria and any dispute that can not be settled shall be settled under the Rules of the Australian Commercial Disputes Centre. The arbitration award will be final and binding on the parties.