FUJIFILM Australia Pty Ltd
STANDARD TERMS OF TRADE
Effective 12 March, 2012
All Goods and Services are sold and supplied by FUJIFILM Australia Pty Ltd ABN 80 000 064 433 (“the Company”) on the following terms:
For the purposes of these Terms of Trade and unless the context otherwise requires:
“Agreement” means the agreement formed in accordance with clause 4, consisting of the Company’s Proposal (if any), the Order and these Terms of Trade.
“Approved Financier” means a Person, approved by the Company, that provides finance to the Customer in respect of Goods.
“Authorised Representative” means a Director, General Manager or National Credit Manager of the Company.
“Business Day” means a day that is not a Saturday, Sunday or public holiday in New South Wales or the place where the Goods and/or Services are delivered or provided.
“Capital Equipment” means:
(a) items of machinery, plant or equipment supplied to the Customer by the Company which are intended to be used (either on their own or in conjunction with other machinery, equipment or Software) to:
(i) generate images or information; or,
(ii) manufacture or produce goods (but which are not themselves transformed into those goods in that manufacturing or production process); and
(b) any Software or spare or replacement parts for machinery, plant or equipment of the kind described in (a) above that have a price greater than $5,000.00.
Claim” means any claim made (whether in the form of an allegation, demand, suit, action or other proceeding of any kind) under or in connection with this Agreement or its subject matter, whether arising under contract (including under any indemnity), negligence or any other tort, under statute or otherwise.
“Commissioning” means the setting-up, adjusting, calibrating and testing of Goods using, where appropriate, materials and testing apparatus supplied by the Company to enable them to perform the functions described in the appropriate manufacturer’s user manual or product literature current at the date of the Proposal under conditions also specified in that manual and notwithstanding any minor omissions or defects which do not prevent the Goods from being used for their intended purpose and rectification of which will not adversely affect the use of the Goods.
“Confidential Information” means, in relation to a party:
(a) all know-how, trade secrets, specifications, product information, technical information, market or price information owned by, or relating to, that party or any of its affiliates;
(b) all information about that party or any of its affiliates;
(c) the names and addresses of any of its customers or the customers of any of its affiliates;
(d) all information about the existence and provisions of this Agreement, and
(e) any other information that, by its nature, or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential to that party or any of its affiliates or any other person with whose consent that party, or any of its affiliates, uses that information,
except for information which is in the public domain, other than as a result of a breach of confidence.
“Consumables” means items intended for use in connection with goods, plant or equipment, being items that are regularly replaced (including, but not limited to, paper, chemistry, film, printing plates, inks, etc).
“Customer” means the Person to whom the Company supplies Goods or Services pursuant to the Agreement.
“Defect” means any deficiency, flaw, weakness or fault, excluding Errors, to which the Goods or Services are subject.
“Errors” are limited to the failure of the Goods to perform a function as described in the appropriate manufacturer’s user manual or product literature current at the date of the Proposal or Order applicable to the supply of those Goods, when the circumstances prescribed by that manual for optimum performance of the Goods are present.
“Goods” means all goods and equipment of any nature, including Capital Equipment, Software, Consumables and spare parts, to be supplied by the Company to the Customer (or, in the case of Software to be supplied in the form of a licence of the Software) pursuant to an Order or Proposal.
“GST” means the tax imposed by the A New Tax System (Goods & Services) Act 1999 (Cth) and related legislation.
“Metropolitan Area” means an area within a radius of 120 kilometres of the Company’s head office in Sydney or its offices in Brisbane, Melbourne, Adelaide and Perth, or, within a 120 kilometre radius of the Hobart GPO.
“Order” means an order in any form placed by a Customer with the Company for the supply of Goods or Services.
“Person” (including a party) includes an individual, corporation, other body corporate, association, partnership, firm, joint venture, trust or government agency, and that person’s successors, permitted assigns, substitutes, executors and administrators.
“PPSA” means the Personal Property Securities Act 2009 (Cth) and related legislation.
“Proposal” means a proposal or quotation by the Company to the Customer to provide Goods or Services.
“Returned Goods Policy” means the Company’s policy regarding the return of Goods current from time to time and displayed on the Company’s website at www.fujifilm.com.au.
“Service” means any service to be carried out by the Company for the Customer pursuant to an Order or Proposal.
“Software” means all computer programs and software in object code form, electronic data files, documentation, user manuals, technical manuals and other similar documents, each in any media or format, and all revisions, modifications, enhancements or additions thereto, whether produced or owned by the Company or a third party.
In this Agreement, unless the context requires otherwise, a reference to:
(a) the “liability” of one party in respect of any Claim includes any liability of that party for the legal costs incurred by the other party in relation to the Claim; and
(b) the words “including” or “includes” means “including, but not limited to” or “includes, without limitation” respectively; and
(c) “loss” or “damage” includes all types of property, pecuniary or other loss or damage, including loss of income, profit, revenue or other economic loss, failure to realise anticipated savings, loss of data, goodwill, reputation, business or business opportunity, any loss in the nature of overhead costs, and any other indirect, special, consequential, incidental, punitive or similar loss or damage.
Any Proposal by the Company to provide Goods or Services:
(a) will expire after 30 days from its date, unless otherwise stated or agreed in writing by the Company; and
(b) may be varied or withdrawn by the Company at any time without notice before a binding Agreement is formed in accordance with clause 4.
4. Agreement Formation
(a) A binding Agreement will form between the Company and the Customer on the earlier of:
(i) the Company’s written acceptance of:
(A) an Order; or
(B) the Customer’s acceptance of a Proposal;
(ii) the Company’s delivery of Goods to the Customer in accordance with anOrder or Proposal; or
(iii) two (2) Business Days after the Company has received the Customer’s Order or acceptanceof a Proposal (or such other period as the Company may notify the Customer prior to the expiration of that period).
(b) The Agreement constitutes the entire agreement between the Company and the Customer in connection with the supply of Goods and Services.
(c) Any condition contained in the Customer’s Order or other documentation which may be contrary to or differ from these Terms of Trade will be void to the extent of any inconsistency. The Company will not be deemed to have waived these Terms of Trade (including this clause 4(c)) if it fails to object to provisions submitted by the Customer
Following acceptance of any Order by the Company, Orders may only be cancelled by the Customer with the Company’s written consent, unless the Company advises the Customer otherwise from time to time. Where the Company consents to cancellation of an Order, the Customer indemnifies the Company against all loss or damage arising from or associated with the cancellation.
6. Returned Goods
(a) The Company has no obligation to accept the return of any Goods from the Customer except in circumstances where:
(i) a valid claim to return the Goods is made under an express warranty givenby the Company to the Customer or under a warranty given to the Company’s customers generally in respect of the Goods; or
(ii) the Customer is otherwise entitled by law to return the Goods (forexample, where the Company has breached a consumer guarantee under the Australian Consumer Law in relation to the Goods).
(b) The Company may choose to accept returned Goods other than Goods described in clause 6(a) (referred to in this clause 6(b) as “Non-Defective Goods”) for credit if the Customer complies with the following return rules and procedures:
(i) The Customermust obtain the Company’s written approval before returning the Non-Defective Goods, and must quote the original invoice number and date for reference;
(ii) Where the Non-Defective Goods are:
(A) Capital Equipment, Goods that were specially procured for the Customer or Goods that were specially modified for the Customer, the return request must be made to the Company in writing no later than one month after installation or delivery of the Goods, whichever is later; and
(B) Goods other than Goods of a kind described in clause 6(b)(ii)(A) above, the claim must be made to the Company in writing no later than seven days after delivery of the Goods; and
(iii) Only Non-Defective Goods of current design in original condition will be considered for credit at market value assessed by the Company. Where the Company agrees to the return of Non-Defective Goods for credit, the Customer must pay to the Company:
(A) the shipping costs associated with the return of the Non-Defective Goods; plus
(B) a handling fee of ten percent (10%) of the selling price or $50.00, (whichever is the greater), to cover the costs of necessary inspection, adjustment, repacking and clerical work.
(c) All returned Goods claims, whether made under clause 6(a) or 6(b), must be made in accordance with the Company’s Returned Goods Policy. In the case of any inconsistency between this Agreement and the Returned Goods Policy, this Agreement takes precedence to the extent of such inconsistency.
(d) To the extent permitted by law, if Goods are returned otherwise than in accordance with the Company’s Returned Goods Policy or this Agreement:
(i) the Company may refuse to accept those Goods; and
(ii) theCustomer must reimburse to the Company all direct and indirect costs incurred by the Company as a result of the unauthorised return (including all handling costs).
(a) The prices charged will be those prices last communicated in writing by the Company to the Customer on or prior to the date of despatch of the Goods or delivery of the Services or, where a Proposal has been provided, as set out in the Proposal or as later modified in writing by the Company.
(b) Where the Company is supplying Goods to the Customer for resale, recommended resale or retail prices appearing in any price list provided by the Company are recommended prices only and there is no obligation to comply with such recommendations.
(c) Unless otherwise advised by the Company in writing:
(i) prices are exclusive of GST and other taxes and installation costs;
(ii) prices of Goods include delivery;
(iii) fees for the provision of Services include travel to premises located within a Metropolitan Area only.
(d) If GST or similar value added tax is levied in respect of any supply made under or in connection with these Terms of Trade, the amount payable for that supply will be increased by the rate of GST. The recipient of any such payments will issue a GST tax invoice or any other thing required under any legislation in the form required and in the time provided for by the relevant legislation.
(e) Where the Company agrees in writing to provide price protection, the same will be strictly subject to the Company’s Price Protection Policy and must be submitted in such form as required by the Company from time to time.
The Company may at any time alter or suspend credit terms, refuse any delivery or cancel unfilled Orders when, in its opinion, the financial condition of the Customer or the status of the Customer’s account require it.
(a) Subject to approval of the Customer’s credit terms by the Company, payment for all Goods and Services excepting Capital Equipment items, including all handling charges payable under clause 15, must be made by the Customer within 30 days from the end of the month of invoicing.
(b) If the Company has not approved credit, all charges will be due and payable and paid by the Customer to the Company upon order of the Goods or Services.
(c) Except as otherwise agreed between the Company and the Customer in writing, payment for all Capital Equipment, including any charges payable under clause 15, must be made by the Customer to the Company in full upon order.
(d) If payment is not received by the Company within the time required under this clause 9 (or such other time as may be agreed in writing by the Company), the Company may recover from the Customer:
(i) liquidated damages calculated by reference to the overdraft rate charged to the Company by its bankers from time to time on any unpaid part of the invoice until payment is received in full; and
(ii) all costs or expenses incurred by the Company (including legal costs) as a result of the non-payment or late-payment, whether or not legal proceedings are commenced to recover unpaid amounts.
Such damages are a genuine pre-estimate of the damages sustained by the Company as a result of non-payment by the Customer by the due date.
(e) The Company accepts payment by cheque, direct deposit, Mastercard or Visa. However, the use of credit cards, when paying existing account debts, attracts a handling fee, as advised by the Company from time to time.
(f) All payments must be made in Australian dollars.
If at any time before the delivery of any Goods the Customer informs the Company that finance is to be arranged in respect of the Goods or any part thereof, then:
(a) The Customer agrees to procure an Approved Financier to purchase the Goods and to notify the Company of the name and address of such Approved Financier;
(b) The Customer unconditionally guarantees that the Approved Financier will discharge the Customer’s obligations under clause 9of these Terms of Trade andthese Terms of Trade apply to any acquisition by that Approved Financier of the Goods;
(c) The Customer agrees that if there is any breach by the Customer of this clause 10, or if the Approved Financier for any reason (other than default on the part of the Company) fails to pay in full the amount of any invoice addressed to it, then the Customer will be bound to purchase the Goods from the Company and to pay for the same in accordance with clause 9;
(d) The Customer agrees that no discussions, correspondence or other communication between the Company and Customer concerning the sources of availability of finance will in any way affect the Customer’s obligations under this clause; and
(e) The Customer agrees that Goods will be delivered only after receipt by the Company of written authorisation from the Approved Financier and that any additional cost occasioned by a delay in receiving such authorisation will be reimbursed by the Customer to the Company upon demand.
The Customer warrants that any Goods being traded-in as part of the Agreement are the Customer’s absolute and unencumbered property and the Customer agrees that such Goods will become the absolute property of the Company free from all charges, liens and encumbrances whatsoever as from the date on which the Company takes possession of those Goods and, until the Company takes possession, the Goods will be at the Customer’s risk.
12. Passing of Risk
Subject to clause 14(e), the risk in the Goods will pass to the Customer upon delivery to the Customer or its agent or to a transport company nominated by the Customer. Should any Goods be damaged or destroyed in any way, other than by the fault of the Company, after the passing of risk in the Goods to the Customer but before payment for the Goods has been made by the Customer, the Customer must promptly, upon demand, pay or reimburse the Company any and all other sums due to or to become due to the Company under this Agreement (including any amount payable for the Goods).
13. Retention of Title and PPSA
(a) Notwithstanding delivery of the Goods or their installation, title to the Goods will remain with the Company until the Customer has paid and discharged any and all monies owing pursuant to any invoice issued by the Company for the Goods (including all applicable GST and other taxes, levies and duties) and all other amounts owed to the Company. Any payment made by or on behalf of the Customer which is later avoided by the application of any laws will be deemed not to discharge the Company’s title in the Goods nor the Customer’s indebtedness to the Company and, in such an event, the parties are to be restored to the rights which each respectively would have had if the payment had not been made.
(b) The Customer acknowledges that it is in possession of the Goods solely as bailee and fiduciary for the Company until title has passed pursuant to clause 13(a)and until that time:
(i) Subject to the Agreement, the Customer is entitled to sell or use the Goods but only in the ordinary course of business;
(ii) The Customer must not encumber or otherwise charge the Goods;
(iii) The Customer will be fully responsible for any loss of or damage to the Goods whatsoever and howsoever caused following delivery;
(iv) If any insurance proceeds are received by the Customer in respect of any Goods belonging to the Company, the Customer will hold all such insurance proceeds on trust for the Company in a separate account with separate records and account to the Company for all such insurance proceeds until all amounts due to the Company have been discharged;
(v) The Customer will store the Goods separately from its own Goods and those of any other party and in a manner which clearly identifies the Goods, whether as separate chattels or as components, as the property of the Company; and
(vi) If the Goods are sold, the Customer will hold the proceeds of sale on trust for the Company and identified as such in the books of the Customer and will account to the Company for those proceeds of sale failing which the Company is entitled to maintain an action for the proceeds of sale of any of the Goods by the Customer.
(c) Until title to the Goods has passed pursuant to clause 13(a), the Customer hereby irrevocably grants to the Company the right, at its sole discretion, to remove or repossess those Goods from the Customer and sell or dispose of them and the Company will not be liable for any loss or damage occasioned thereby nor be liable to the Customer or any Person claiming through the Customer and the Company will be entitled to retain the proceeds of those Goods sold and apply same towards the Customer’s indebtedness to the Company.
(d) Until title to the Goods has passed pursuant to clause 13(a), and without limiting clause 13(c), if:
(i) the Customer commits an act of bankruptcy, has a controller (as defined in section 9 of theCorporations Act 2001 (Cth), administrator or liquidator appointed to it, makes any composition or arrangement with its creditors, ceases to carry on business, fails to comply with a statutory demand;
(ii) an application is made to the Court, or a resolution is passed, that the Customer be wound up;
(iii) the Customer becomes insolvent within the meaning of section 95A of the Corporations Act 2001 (Cth);
(iv) the Customer experiences any other insolvency event; or,
(v) the Customer breaches clauses 9or 13of these Terms of Trade,
the Company may, without prejudice to any other remedies it may have, repossess any of those Goods and commence proceedings to recover the balance of any monies owing to the Company by the Customer on any account.
(e) The Company may register on the Personal Property Securities Register any and all Security Interests granted by or pursuant to this Agreement.
(f) The Customer waives any right it may otherwise have to receive a copy of any financing statement, financing change statement or verification statement registered or received by the Company in respect of the Security Interests created under this Agreement or any other agreement between the Customer and the Company.
(g) The Customer agrees to do, at the Customer’s own expense, all things necessary, including executing all documents and providing all relevant information, and otherwise cooperating fully with the Company, to enable the Company to register a financing statement on the Personal Property Securities Register in order to ensure that at all times the Company has a perfected Security Interest in relation to all Security Interests created by or pursuant to this Agreement and a Purchase Money Security Interest in respect of the Goods.
(h) The Customer must not grant any other Security Interest in Goods which would rank equally with, or in priority to, a Security Interest held by the Company over those Goods pursuant to this Agreement except with the prior written permission of the Company.
(i) As between debts owed to the Company secured by Purchase Money Security Interests and other debts, the Company will be entitled to apply monies received from the Customer against the other debts first at its sole discretion and despite any direction from the Customer to the contrary.
(j) The Customer agrees to reimburse the Company for all costs and/or expenses incurred or payable by the Company in relation to registering, maintaining or releasing any finance statement or any other document in respect of any Security Interest created by or pursuant to this Agreement.
(k) The Customer and the Company agree that, to the extent possible, the sections of the PPSA listed in section 115(1) of the PPSA will not apply on the enforcement by the Company of any Security Interest created pursuant to this Agreement.
(l) For the purposes of this clause 13, the terms“financing change statement”, “financing statement”,“Purchase Money Security Interest”,“Personal Property Securities Register”,“Security Interest” and“verification statement” have the meanings given in the PPSA.
14. Delivery and Supply
(a) The Company will use reasonable endeavours to supply Goods or Services in accordance with the delivery dates and times indicated by the Company in a Proposal, on acceptance of an Order, or as otherwise specified in writing by the Company. Unless expressly stated otherwise in writing by the Company, delivery dates or times indicated by the Company in a Proposal. on acceptance of an Order or otherwise, are approximate only and do not constitute a guarantee of delivery or delivery by such date. The Company will use reasonable endeavours to keep the Customer informed of likely delivery or performance delays and availability of Goods or personnel to perform Services.
(b) If an Order or Proposal covers a number of Goods or Services, the Company will be entitled to amend the delivery date or time for the Order or Proposal in respect of all or any such Goods or Services, in which event the normal terms of payment will apply and no Claim will arise in respect of the shortfall or delay. Where the delivery date for Goods is delayed as a result of stock availability, the shortfall quantity of Goods will be placed on back order.
(c) Goods placed on back order will be supplied immediately they are available unless prior notice of cancellation from the Customer is received by the Company from the Customer in accordance with this Agreement and accepted by the Company before despatch of the Goods.
(d) If for any reason the Customer requests the Company to furnish Goods or Services outside the dates and times specified by the Company, and the Company agrees, any overtime or additional expenses occasioned thereby will be invoiced to and paid by the Customer to the Company in addition to and simultaneously with the purchase prices for such Goods or Services at the then current rates as specified by the Company.
(e) Where the Company attempts to deliver Goods or to provide Services on the designated delivery date, but the Customer is unable or unwilling to accept delivery:
(i) the Company may invoice the Customer as if delivery had been effected or the Services had been provided;
(ii) risk in the Goods will pass to the Customer;
(iii) Goods paid for by the Customer under sub-clause 14(e)(i) will be held for the Customer under the Company’s custody, care and control and all costs associated with so doing (including storage) will be payable by the Customer; and
(iv) the Company will, at the Customer’s expense, deliver those Goods to the Customer at such later date as is agreed between the Company and the Customer.
(f) If the Company’s costs are increased, or the Company otherwise incurs any expense, loss or damage (including, without limitation, lost employee time, travel expenses, delivery expenses and cancellation charges), because the previously mutually agreed date for delivery of the Goods or provision of the Services is delayed by reason of:
(i) the Customer’s unwillingness or inability to accept delivery of those Goods or Services;
(ii) any other lateness on the Customer’s part; or
(iii) any work for which the Company is not responsible,
then such costs, expenses, loss or damage will be reimbursed by the Customer to the Company upon demand.
(g) Extra costs incurred by the Company due to cessation of work occasioned by the Customer’s instructions or lack of instructions, by interruptions, mistakes, delay in construction by the Customer of any works required as part of a Proposal, or work for which the Company is not responsible will be reimbursed by the Customer to the Company upon demand.
(h) Any delays arising as a result of the matters referred to in clause 14(e) will entitle the Company to amend any associated Proposal to take such delay into account.
(i) Where required under the Proposal, Commissioning of Goods must be carried out by the Company as soon as possible after installation of the Goods and the Customer must provide representatives to be present at Commissioning with authority to acknowledge successful Commissioning.
(j) Unless expressly stated otherwise in writing by the Company, delivery of Goods will be to ground floor level and, the Company will not be responsible for unloading the Goods at the place of delivery.
15. Handling Charges
Handling charges for Goods are as follows:
(a) Minimum Orders: There is a minimum order value of $300.00 (GST exclusive) for Orders of Goods (apart from Orders for spare parts). No minimum order value applies to Orders for spare parts. Orders requested by the Customer and accepted by the Company under $300.00 will be subject to a minimum order surcharge of $25.00 (GST exclusive) (excluding Orders for spare parts).
(b) Urgent Orders: An urgent order charge of $30.00 (GST exclusive) per Order applies for Orders requiring pick up or despatch outside normal cut off times. Normal cut off time for Orders being despatched or picked up on the same day is 12 noon local time at the place of despatch. This urgent order charge does not apply to Orders for spare parts.
(c) Returns: A handling charge in an amount determined under clause 6(b)(iii) applies for the return of Non-Defective Goods.
(d) Spare Parts: A handling charge of $10.00 (GST exclusive) per Order applies to Orders for spare parts.
16. Force Majeure
The Company will use its reasonable endeavours to perform its obligations in accordance with these Terms of Trade but failure to do so by reason of the inability of the Company to obtain supplies from its usual sources or otherwise, delays caused by suppliers or others, strike, combination of or dispute with workmen, lockout, riot, revolution, war, mobilisation, epidemic, fire, flood, accident, transportation delays, fuel shortage, demand or requirement of Government or statutory authorities, act of God or any other cause of like or different character whatsoever beyond the control of the Company will not constitute a breach of this Agreement, nor will the Company be under any liability to the Customer, but the Agreement will be deemed to be suspended with liberty to the Company at any time to cancel the Agreement or any unfulfilled part or to renew the Agreement upon the cessation of the cause preventing performance. In the event of any such delay, the timeline in any Proposal may be amended by the Company to take account of the period of time lost by reason of the delay or delays.
Goods supplied by the Company are intended for use only in Australia. In the event of re-export, compliance with the legal export regulations of Australia and/or the relevant country of manufacture of the Goods is the responsibility of the Customer.
18. Documents, drawings, etc
(a) All descriptiveand shipping specifications, drawings and particulars of weights and dimensions submitted with a Proposal (except those identified in any construction schedule to this Agreement) are approximate only and the descriptions and illustrations contained in catalogues, price lists and other advertising material made available by the Company are intended merely to present a general idea of the Goods described therein and none will form part of the Agreement. An additional charge will be made for extra copies of any drawings or documentation required by the Customer.
(b) No documentsof any kind supplied by the Company will, without the Company’s prior written consent, be copied or reproduced in any form or transmitted or communicated to third parties.
(a) If either party (the “receiving party”) learns any of the other party’s Confidential Information:
(i) it will keep the Confidential Information strictly confidential and will not without the prior written consent of the other party disclose the Confidential Information except:
(A) to the receiving party’s officers, employees, and advisers who have a need to know it for the purposes of this Agreement (and to the extent they have the need to know); or
(B) to the extent the receiving party is required by law to disclose the Confidential Information; an
(ii) the receiving party will use the Confidential Information only for purposes of this Agreement.
(b) This clause 19 survives the termination of this Agreement.
(a) Where the Goods comprise or include Software to be used by the Customer, the Companywill procure the grant to the Customer of a non-transferable, limited licence to use the Software. Software will be supplied in accordance with the software provider’s licence terms. Where required by the Company, the Customer will sign a software licence agreement in a form required by the Company prior to delivery of the Software. Title or ownership of the Software is not transferred to the Customer.
(b) The Company reserves the right to charge for additional Software or enhancements to existing Software or extensions of existing Software functions and for associated installation or other related professional service charges. Software must not be copied nor made available to any third party (otherwise than pursuant to a sale of the goods on which the Software is loaded or installed without the prior written consent of the Company).
22. Warranty and Limitation of Liability
(a) To the full extent permitted by law, but subject to this clause 22, the Company excludes all warranties, terms, conditions, guarantees and representations, whether express, implied or imposed (by statute, custom, law or otherwise).
(b) Clause 22(a) does not exclude any express warranty provided by the Company in writing to the Customer.
(c) To the full extent permitted by law, the Company will not be liable to the Customer in respectof any Claim for any loss of income, profit, revenue or other economic loss, failure to realise anticipated savings, loss of data, goodwill, reputation, business or business opportunity, any loss in the nature of overhead costs, or any other indirect, special, consequential, incidental, punitive or similar loss or damage, or for any Claim made against the Customer by any other party, even in the event of the Company’s negligence and even if the Company has been advised of the possibility of such a Claim.
(d) To the full extent permitted by law, but subject to this clause 22:
(i) the Company does not guarantee the overall performance of any system or the results of any process or procedure with which its Goods or Services are used or integrated; and
(ii) the Company will not be responsible or liable to any Person in respect of any Claim for any loss or damage arising from the failure of any such system, process or procedure to perform any particular task or to produce a particular result, even if that loss or damage arises as a result of the Company’s negligence.
(e) To the full extent permitted by law, but subject to this clause 22, the Customer hereby:
(i) indemnifies and holds harmless the Company, its officers, employees, servants and agents (in this clause 22(e), together “Indemnified Persons”) from and against any and all loss or damage, and all costs and expenses (including reasonable legal fees on a solicitor client basis) or liabilities that the Indemnified Person sustains or incurs resulting directly or indirectly from any Error or Defects in Goods or Services supplied by the Company, but only to the extent that such loss or damage, costs, expenses or liabilities exceed Company’s liability as calculated in accordance with this Agreement (being, for the avoidance of doubt, the maximum liability of the Company to the Customer pursuant to this Agreement with particular regard to the exclusions and limitations of liability set out in this clause 22); and
(ii) agrees that this indemnity shall survive the termination of the Agreement between the Company and Customer of which these Terms of Trade form part and extends to cover any such loss, damage, costs and expenses or liabilities that an Indemnified Person sustains or incurs in connection with any alleged Error or Defect in the Goods or Services and any failure of any system or process or procedure with which the Goods or Services are used or integrated to perform a particular task or to produce a particular result.
To the extent that the indemnity in this clause 22(e) is in favour of an Indemnified Person other than the Company, the Company contracts as trustee of the rights under the indemnity.
(f) Certain legislation may imply warranties or conditions or impose guarantees or obligations which cannot be excluded, restricted or modified except to a limited extent. These Terms of Trade must be read subject to those statutory provisions. If those statutory provisions apply, notwithstanding any other provision of this Agreement, to the extent to which the Company is entitled to do so, the Company limits its liability in respect of any Claim to (at the Company’s option):
(i) in the case of Goods, any one or more of the following:
(A) the replacement of the Goods or the supply of equivalent goods;
(B) the repair of the Goods;
(C) the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
(D) the payment of the cost of having the Goods repaired; and
(ii) in the case of Services:
(A) the supplying of the Services again; or
(B) the payment of the cost of having the Services supplied again.
(g) To thefull extent permitted by law, and subject to this clause 22, the Customer agrees that the Company’s maximum cumulative liability to the Customer for all Claims made by the Customer under or in connection with any Order or Proposal will not exceed the lower of:
(i) the aggregate of the purchase monies received by, or service fees paid to, the Company in connection with that Order or Proposal; and
(ii) such other amount as may be agreed by the Company in writing.
(h) Tothe extent permitted by law, the Customer agrees that the Company’s liability in respect of any Claim made by the Customer will be reduced to the extent, if any, to which the Customer’s negligence, breach of this Agreement or breach of law contributed to the loss or damage arising from the Claim.
(a) No waiver, modification or variation of these Terms of Trade will bind the Company unless expressly agreed to in writing by the Company signed by an Authorised Representative of the Company.
(b) If the Company agrees to a modification or variation of these Terms of Trade, the Company will be entitled to amend the timetable set out in the Proposal (if any) or Order or proposed delivery date(s) to take account of any delay caused by such variation.
(c) Failure, delay or neglect by the Company to enforce any term or condition of the Agreement will not be construed as a waiver of the Company’s rights.
(d) The headings of the clauses in these Terms of Trade are intended for convenience only and will in no way affect the construction of those clauses.
(e) In the event that any provision of these Terms of Trade or part thereof is held invalid or unenforceable, the remaining provisions of these Terms of Trade or parts thereof will remain in full force and effect.
(f) The Agreement is governed by the laws that apply in the State of New South Wales. Both the Customer and the Company consent to any proceedings in relation to this Agreement being instituted and heard by any appropriate Court sitting in the State of New South Wales and submit to the non-exclusive jurisdiction of the Courts of that State and of the Commonwealth of Australia.
(g) The Company may serve any notice on the Customer by forwarding it by pre-paid post, facsimileor email to the last known address of the Customer. A notice served in accordance with this clause 23(g) will be deemed to have been received:
(i) if sent by pre-paid ordinary post, three Business Days after the date of posting, and on the seventh Business Day if sent to or posted from outside Australia; or
(ii) if sent by facsimile transmission, on the day the transmission is sent (as long as the Company has a confirmation report specifying the facsimile number of the recipient, the number of pages sent and the date of the transmission); and
(iii) if sent by email, on the day the email is sent provided no delayed delivery or non-delivery message has been received by the Company within 24 hours of transmission,
except if a notice is received, or deemed received, on a day which is not a Business Day, or after 5.00pm on any Business Day, that notice will be deemed to be received by the recipient on the first Business Day after that.