Standard Terms and Conditions of Sale
Terms and conditions
All quotations and sales are made only upon these CONDITIONS. This document, and not any purchase order or other BUYER document (which, if construed to be an offer is hereby rejected), will be deemed an offer or counter-offer and is a rejection of any other terms or conditions. BUYER, by accepting any GOODS, making any payments or ordering any GOODS having previously received these CONDITIONS, will be deemed to have assented to these CONDITIONS, notwithstanding any terms contained in any prior or later communication from BUYER. SELLER's failure to object to any document, communication or act of BUYER will not be deemed a waiver of any of these CONDITIONS. Any addition or change to these CONDITIONS must be specifically and expressly agreed to in writing by a duly authorized officer of SELLER before becoming binding on SELLER.
Interpretation in these conditions
'BUYER' means the person who purchases GOODS from the SELLER;
'GOODS' means the GOODS which the SELLER is to supply in accordance with these Conditions; ‘MANUFACTURER’ means the supplier or manufacturer or original manufacturer who sells the GOODS to SELLER and which are supplied or sold to BUYER.
'SELLER' means the SELLER named in the price quotations or invoices.
'CONDITIONS' means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes and special terms and conditions agreed in writing between the BUYER and the SELLER which shall be governed and construed in accordance with the laws of the SELLER's domicile;
'CONTRACT' means the contract for the purchase and sale of the GOODS;
'WRITING' includes telex, cable, facsimile transmission and comparable means of communication.
‘GST’ means the goods and services tax payable pursuant to the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
‘ORDER’ means a purchase order for goods or services placed by a Buyer in response to a Quote and as varied in writing from time to time by the parties.
‘QUOTE’ means a description of the Goods or Services to be provided by the Seller, whether in writing or oral, an estimate of the Seller’s charges for the supply of the Goods or performance of the required Services and an estimate of the time frame for the delivery of the Goods or performance of the Services.
‘SERVICE’ means the services to be provided by the Seller to the Buyer in accordance with these terms and conditions of trade.
Quote and purchase order
Any Quote given by the Seller is a mere invitation to treat and does not constitute a contractual offer and the Seller reserves the right to vary or withdraw a Quote at any time.
Once the Seller has sent to the Buyer an acknowledgment of the acceptance of the Order the Buyer may not alter or modify the Order without the written consent of an authorised employee of the Seller.As a general rule the Seller seeks to support an eight (8) week cancellation window. This period is classified as eight (8) weeks prior to Seller’s confirmed delivery date. However in all instances cancellation is subject to acceptance by the Seller for any particular cancellation request.
Any non-standard, indent, custom, or customer specific items are subject to non-cancellation non-returnable (NCNR) terms.
Price and payment term
Prices do not include any taxes, freight, handling, duty or other similar charges, payment of which will be the sole responsibility of BUYER. Prices are conditioned upon timely payment and any past due balance will accrue interest as stipulated in these CONDITIONS. Freight charges may be constructed on the basis of standard carrier tariffs and may not reflect actual transportation costs.
Seller quotes prices exclusive of GST. Unless the Buyer provides the Seller with an authorised tax exempt certificate, GST will be added to invoices.
The SELLER may, by giving notice to the BUYER at any time before delivery, increase the price of the GOODS to reflect any increase in the cost to the SELLER which is due to any factor beyond the control of the SELLER (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the GOODS which is requested by the BUYER, or any delay caused by any instructions of the BUYER or failure of the BUYER to give the SELLER adequate information or instructions.
Prices are also subject to change in response to MANUFACTURER price increases, whereupon, BUYER may only cancel the undelivered portion of any affected order by delivering written notice to SELLER PRIOR to the shipment thereof and within 10 days of its receipt of notice of the price increase PROVIDED this provision does NOT apply to NCNR purchase orders.
Unless otherwise stated in the terms of the subject quotation or, if no quotation is made, then in any price list of the SELLER, or any last date agreement sign.
Risk and property
Risk in the Goods passes to the Buyer when the Goods are loaded at the Seller’s premises for delivery to the Buyer. Risk of loss in transit is the responsibility of the Buyer.
The Seller shall retain title to the Goods until it has received payment in full for them. Goods belonging to the Seller which have not been paid in full shall be stored by the Buyer so that they are identifiable as such. The fact that the Seller retains title to the Goods until they have been paid for shall not affect its right as an unpaid Seller or the passing of the risk of the Goods to the Buyer pursuant to clause 5.1. Furthermore if payment is overdue, or the Buyer enters into bankruptcy, liquidation, administration, a composition with its creditor, has a receiver or manager appointed over all or any of its assets or becomes insolvent the Seller shall be entitled without prejudice to any other remedy, to retake possession of the Goods belonging to it and to enter any premises of the Buyer(or the premises of any associated company or agent where the goods are located) without notice for this purpose without liability for trespass or any resulting damage.
Transport
The Buyer shall make its own transport arrangements. Where the Buyer fails to make transport arrangements the Seller can:
(a) For deliveries within the metropolitan area of mainland state capital cities, use a freight service of its own choosing and add a standard freight charge to the invoice;
(b) For deliveries outside these areas, the Goods will be dispatched freight on, or charged to the Buyer on the Seller’s invoice.
Delivery
SELLER will not be liable for any failure or delay in its performance or in the delivery or shipment of GOODS, or for any damages suffered by BUYER by reason of such failure or delay, when such failure or delay is caused by, or arises in connection with, any fire, flood, accident, riot, earthquake, severe weather, war, governmental interference or embargo, strike, shortage of labor, fuel, power, materials or supplies, delay in delivery by SELLER's suppliers or MANUFACTURERS or any other cause or causes beyond SELLER's reasonable control. SELLER reserves the right to cancel without liability any order, the shipment of which is or may be delayed for more than 30 days by reason of any such cause. SELLER reserves the right to allocate in its sole discretion among BUYERs or potential BUYERs, or defer or delay the shipment of, any product which is in short supply.
Where the GOODS are to be delivered in instalment, each delivery shall constitute a separate CONTRACT and any default by the SELLER relating to any one or more of the instalment (whether in respect of delivery, quality or otherwise) shall not entitle the BUYER to treat the Contract as a whole as repudiated.
If the BUYER fails to take delivery of the GOODS or fails to give the SELLER adequate delivery instructions at the time stated for delivery then, without prejudice to any other right or remedy available to the SELLER, the SELLER may store the GOODS until actual delivery and charge the BUYER for the reasonable costs (including insurance) of storage; or sell the GOODS at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the BUYER for the shortfall (if any) below the price under the CONTRACT.
In the absence of prior agreement as to shipping, SELLER may select a carrier. BUYER will pay for storage charges if GOODS are held by SELLER at BUYER's request pending instructions or rescheduled delivery. *
GOODS are deemed accepted by BUYER unless BUYER notifies SELLER in writing within 10 days (or such other time as agreed or set out in the purchase order) of delivery of GOODS any shortages, damage or defect. No returns may be made for any reason without notification within time as above said as well as with a Return Authorization Form issued by SELLER. If BUYER refuses to accept tender or delivery of any GOODS or returns any GOODS without authorization from SELLER, such GOODS will be held by SELLER for 7 days, after which the SELLER is entitled to dispose of the GOODS as it sees fit, without prejudice to claiming against the BUYER for the full amount of purchase price of the GOODS and any other costs, expenses, charges, damages and loss as may be suffered by the SELLER.
Time of delivery
Delivery dates are estimated in good faith by the Seller and are not of the essence of the contract.
Under no circumstances will the Seller be liable for damages of any kind (including consequential, special or incidental damages including loss of profits) for failure to deliver or for delay in delivery howsoever occasioned.
The Buyer is not relieved from accepting delivery at the agreed price when the causes delaying delivery are removed.
If delivery is in instalments, delay in delivery of any instalment shall not relieve the Buyer of its obligation to accept the remaining instalments.
In the event of any happening beyond the Seller’s reasonable control in consequence of which the Seller cannot effect delivery by the time or times quoted or specified in the Order, the Seller shall be entitled to deliver part only of an Order, suspend delivery or extend time for delivery for the period during which such cause of delay operated or may cancel the Order and in the event of such suspension, extension or cancellation the Seller shall not be liable for damages of any kind including damages of the kind.
Claims
The Buyer must inspect all Goods supplied upon delivery. The Seller will not be liable for shortages and other errors in delivery unless the Buyer submits a claim in writing to the Seller within seven (7) days of the date of delivery to which the claim relates.
Goods cannot in any circumstances be returned to the Seller:
without the prior written consent of an authorised employee of the Seller; and
unless accompanied by a delivery document showing the Seller’s Return Materials Advice number.
Whilst the Seller will take all reasonable steps to ensure that all Goods supplied to the Buyer comply, where possible, with RoHS, Lead-free or Green requirements, the Seller makes no warranty or promise in this regard and will not be liable to the Buyer on any account whatsoever in the event that the Goods do not so comply.
Warranties and liabilities
All Goods are supplied by the Seller to the Buyer on an “as is” basis without any warranty of any kind. However the Seller shall assign to the Buyer in so far as it is able to do so the benefit of any condition, warranty or guarantee express or implied in the Seller’s contract with its own supplier.
Subject to clause 10.3, clause 10.1 sets forth the full extent of the Seller’s obligation and liability to the Buyer with respect to the Goods and Services supplied and all terms, conditions warranties and representations that might otherwise be implied by statute or otherwise are hereby excluded.
Certain legislation including the Competition and Consumer Act 2010 (Cth) imply warranties or conditions or impose obligations upon the Seller which cannot be excluded, restricted or modified except to a limited extent. In addition there are certain obligations and liabilities that according to law the Seller cannot avoid. These terms and conditions must be read and construed subject to such statutory provisions and other obligations and liabilities. Where such statutory provisions or other obligations or liabilities apply to the extent to which the Seller is entitled to limit its liability, then its liability shall be limited at its option to:-
In the case of a supply of Goods:
The replacement of the Goods or supply of equivalent Goods;
The payment of the cost of replacing Goods or acquiring equivalent Goods;
The payment of the cost of having the Goods repaired; or
The repair of the Goods; and
In the case of the supply of Services:
The supply of the Services again; or
The payment of the cost of having the Services supplied again.
Any claim by the BUYER which is based on any defect in the quality or condition of the GOODS or their failure to correspond with specification shall (whether or not delivery is refused by the BUYER) be deemed waived absolutely unless notified to the SELLER within 14 days from the date of delivery and the BUYER shall be bound to pay the price as if the GOODS had been delivered in accordance with the CONTRACT.
The SELLER shall not be liable to the BUYER or be deemed to be in breach of the CONTRACT by reason of any delay in performing, or any failure to perform, any of the SELLER's obligations in relation to the GOODS, if the delay or failure was due to any cause beyond the SELLER's reasonable control including (without limitation) any delay, default or failure on this part of the MANUFACTURER(s) or ultimate MANUFACTURER(s) who supply directly or indirectly the GOODS to the SELLER for resale to the BUYER.
The performance of any value-added service may void the MANUFACTURER's warranty and render products non-returnable. Orders incorporating such services are, accordingly, non-cancelable and the products are non-returnable. Any third party value-added service provider is deemed to be an agent of BUYER.
Any software or intellectual property included in or relating to GOODS is supplied by the MANUFACTURER. SELLER makes no representation or warranty with respect thereto and will have no liability in connection therewith.
BUYER agrees to comply with the MANUFACTURER's or other requirements with regard to proprietary and similar rights in and to such software and its intellectual property (including any requirement to enter into a separate license agreement and prohibitions against duplicating or disclosing the same), even if the seal on any "shrink wrapped" software has been broken by SELLER, and will indemnify SELLER against and hold it harmless from any and all liability, cost or expense arising from a breach or purported breach of such requirements.
SELLER total liability to BUYER for all damages, losses and causes of action shall IN ANY EVENT NOT exceed USD1000 or the total purchase price of the subject GOODS, whichever the lesser amount. * Where the Competition and Consumer Act 2010 of Australia (“CCA”) applies, Article 8 of these Conditions applies and operates to the fullest extent consistent with and permitted by the CCA, but otherwise shall be read to the extent necessary to ensure these terms do not contravene any part of the CCA.
Export control
The Seller does not sell electronic components to countries, organisations and individuals that have been banned or embargoed by the governments of Australia and USA. This applies specifically to those known to be engaged in the manufacture of weapons of mass destruction and other warfare applications. Accordingly, the Seller’s sales force endeavours to establish the potential customers’ intended applications and take steps to decline sales and black list customers and/ or countries recognised engaging in such applications.
BUYER understands that the GOODS may be subject to export, re-export, or other restrictions under the laws of the country of manufacture, the country of the seller/distributor, and the country in which the BUYER resides. Therefore, BUYER, on behalf of itself, its subsidiaries and affiliates, warrants and agrees to abide by all applicable laws and regulations relating to the export and re-export of such commodities, software, and/or technology and the direct products thereof in relation to GOODS obtained by BUYER and its subsidiaries and affiliates. In particular:
BUYER understands that U.S. origin commodities, software, and/or technology, exported from the U.S., and/or foreign manufactured products made with U.S. origin technology or more than de-minimis U.S. GOODS content are subject to U.S. re-export laws. In the event of re-export, BUYER agrees to ensure that the required permissions will be obtained.
BUYER certify that the commodities, software, and/or technology will not be used, sold, re-exported or incorporated into products used directly or indirectly, in the design, development, production, stockpiling, or use of chemical or biological weapons, nuclear programs (including activities related to nuclear explosive devices, nuclear reactors, and nuclear fuel-cycle activities), missiles (including cruise and ballistic missile systems, space launch vehicles, sounding rockets, target drones, remotely piloted vehicles, and reconnaissance drones), and maritime nuclear propulsion projects except as authorized under applicable laws and regulations relating to the export and/or re-export of these items.
BUYER certify that the commodities, software, and/or technology will not be sold, re-exported or incorporated into products for use by military, police, or intelligence entities, or for any space applications except as authorized under applicable laws and regulations relating to the export and/or re-export of items to such entities.
BUYER certify that the commodities, software, and/or technology will not be used directly or indirectly, sold, re-exported or incorporated into products for the foreign vessels or aircraft except as authorized under applicable laws and regulations relating to the export and/or re-export of these items.
BUYER certify that the commodities, software, and/or technology will not be used directly or indirectly, sold, re-exported or incorporated into products for the benefit of those named by the U.S. government on the Entity List at Part 744 of the Export Administration Regulations, or to persons designated by the U.S. government as Specially Designated Global Terrorists (SDGTs), Specially Designated Terrorists (SDTs), Foreign Terrorist Organizations (FTOs) on the Specially Designated National (SDN) list, or to persons on the SDN List followed by the suffix FRYM (relating to U.S. sanctions on the Federal Republic of Yugoslavia and Montenegro).
BUYER certify that the commodities, software, and/or technology will not be used directly or indirectly, sold, re-exported or incorporated into products that constitute general purpose microprocessors for military end-uses or military end-users. BUYER certify that no commodities, software, and/or technology obtained from SELLER, its subsidiaries and/or affiliates, or of U.S. origin will be exported or re-exported (directly or indirectly), diverted, or transhipped to or via any country in violation of U.S. unilateral or U.N. economic embargo.
The GOODS SELLER sells may have been imported. Country of origin information is as provided to SELLER by its MANUFACTURERS and is, where applicable, printed on the products or the manufacturer's innermost packaging.
Insolvency of buyer
If the BUYER makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
An encumbrance takes possession, or a receiver is appointed, of any of the property or assets of the BUYER; or
The BUYER ceases, or threatens to cease, to carry on business; or
The SELLER reasonably apprehends that any of the events mentioned above is about to occur in relation to the BUYER and notifies the BUYER accordingly. Then, without prejudice to any other right or remedy available to the SELLER, the SELLER shall be entitled to cancel the CONTRACT or suspend any further deliveries under the CONTRACT without any liability to the BUYER, and if the GOODS have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
Confidentiality
BUYER agrees to use reasonable measures, but in any event no less than the standard applied in handling its own confidential / proprietary information, in handling and maintaining in confidence any confidential / proprietary information as disclosed by SELLER.