Terms and Conditions

TERMS & CONDITIONS OF PURCHASE

These Terms and Conditions of Purchase apply to any goods or services supplied to the Company by the Supplier unless agreement to deviating terms and conditions are explicitly confirmed in writing by the Company prior to the supply of any goods or services.

1. Definitions and Binding Terms & Conditions of Purchase

1.1. In the following Terms and Conditions of Purchase the “Supplier” means the entity supplying the goods or services the subject of these Terms and Conditions of Purchase (“Supplies”) and the “Company” means CD Power Pty Ltd of 354 Cormack Road, Wingfield SA 5013 and its related bodies corporate within the meaning of the Corporations Act.

1.2. The “Agreement” means the agreement between the Company and the Supplier for the supply of goods of which these Terms and Conditions of Purchase form part.

1.3. The only contractual terms which are binding upon the Company are those set out in these Terms and Conditions of Purchase or otherwise agreed to in writing by the Company and those, if any, which are imposed by law and which cannot be excluded by these Terms and Conditions of Purchase.

1.4. All previous negotiations, representations, warranties, arrangements and statements (if any) whether express or implied, including any collateral agreement or warranty between the Company and the Supplier, are excluded and cancelled.

2. Pricing

2.1. All prices are quoted in Australian Dollars ($A) unless otherwise specified in writing.

2.2. A quoted price will apply to quoted goods, parts or services to be provided to the Company which are ordered within 90 days of the quote date.

2.3. All prices quoted will include any tax or duty that may be payable by the Company.

2.4. The Company has the right to make changes to a purchase order or any other instructions at any time and the Supplier agrees to accept such changes. In the event such changes result in additional costs, the Company may make an equitable adjustment to the order price provided such additional costs are reasonable and are itemised for the Company by the Supplier within 14 days of the notice of the change.

3. Payment

3.1. Unless credit has been provided to the Company or otherwise agreed in writing, payment will be made within a period of 60 days from the end of month after receipt of a valid tax invoice and acceptance of the Supplies by the Company.

3.2. Company may withhold payment of any part of the price because of any dispute or claim.The Company does not agree to pay the Supplier any interest on any moneys unpaid beyond the due date for payment until payment is actually affected.

3.3. Any expenses incurred by the Supplier in recovering any outstanding monies from the Customer including the cost of repossession and resale of the Supplies, debt collection agency fees and legal costs (full indemnity basis) will be at the Suppliers expense.

3.4. Ownership of, and title to the Supplies will pass to the Company when goods are delivered to, receipted by and the quality of Supplies confirmed by the Company for all Supplies

4. Delivery

4.1. The Supplier must deliver the goods to, and/or perform the services at, the delivery point nominated by the Company (“Delivery Point”) on the delivery date specified in the order (“Deliver Date”).

4.2. The Supplier must promptly notify the Company if delivery is likely to be delayed (giving reasons for the delay) and apply in writing for an extension of the Delivery Date, which the Company may grant or refuse in its absolute discretion.

4.3. If the Supplier fails to fully deliver or supply the Supplies by the Delivery Date, the Company may cancel the order for the Supplies (without penalty or cost to the Company) and purchase substitute goods or services from another supplier and the Supplier must pay the Company the additional cost or expense incurred by the Company in purchasing substitute goods or services. Where the Company has paid any part of the purchase price for the Supplies then the Supplier must refund that part of the purchase price to the Company.

4.4. Risk in the Supplies will not pass to the Company until the Supplies have been accepted for quality and quantity as documented in the Purchase Order

4.5. Supplies may incorporate changes from time to time made by the Supplier due to changes in manufacturing or in raw materials but the Company must be notified and provide acceptance in writing prior to changes being incorporated by the Supplier.

4.6. The Supplier must bear the cost of all packaging, freight, pallet charges, warehousing, fuel surcharges, insurance and other charges in connection with the delivery of the Supplies. The Supplier must ensure that the Supplies are packed and labelled in accordance with all applicable Laws and Australian Standards or instructions from the Company.

4.7. If the Supplier is unable to supply the Company’s total order this Agreement will apply to the supply of all or part of the order.

4.8. The Supplier must use appropriate packaging to ensure the goods are safely transported and delivered to the Delivery Point.

5. Cancellation of Order

5.1. Should the Company cancel an order after work has been commenced, the Company may pay a reasonable charge for the work completed and materials used.

6. Warranties and Liabilities

6.1. The goods supplied by the Supplier are warranted for workmanship and materials for a period of 24 months from the date of delivery to the Company. The goods are also warranted for their compliance with specifications agreed between the Supplier and the Company and any relevant Australian or International standards.

6.2. All Supplies must: (a) be fit for any specific purpose of the Company made known to the Supplier or for any other purpose of the Company for which the Supplier should have reasonably been aware; (b) be of acceptable quality and, subject to sub-paragraph (a), fit for any purpose for which the Supplies are commonly supplied; (c) be safe and free from material defects in design, material and workmanship; and (d) comply with all applicable product safety laws.

6.3. All services supplied by the Supplier must be performed efficiently, safely, competently and in conformity with any applicable industry codes of practice by suitably qualified and experienced personnel, and must be of the highest quality which reasonably would be expected from a skilled and experienced operator providing a similar type of service in similar circumstances.

6.4. The Supplier’s liability may extend to consequential loss and damage suffered or incurred directly or indirectly by the Company or any of the Company’s agents or employees or any other person in connection with the supply of the Supplies by the Supplier or any delay in or the inability of the Supplier to supply the Supplies.

6.5. Where the Supplies are services, the Supplier warrants that it will repair or arrange to have repaired without charge to the Company any major fault in the service proved to the Company’s satisfaction to have occurred entirely as a result of the Supplier’s poor workmanship.

7. Acceptance and Claims

7.1. The Company shall attempt to inspect the Supplies upon delivery and as soon as it becomes apparent notify the Supplier providing details of aspects of the Supplies not being in accordance with this Agreement.

7.2. The Company is entitled to reject any Supplies, which are: (i) not delivered at the agreed time; (ii) not delivered in the agreed volume and/or quantity; (iii) in inappropriate or damaged packaging; (iv) unfit for the Company’s purpose or defective; or (v) not in compliance with the purchase order or specifications.

7.3. Rejected Supplies are at the risk and account of the Supplier and without prejudice to the Company’s right to compensation for the loss suffered as a result of the Supplier’s non-compliance with this Agreement.

7.4. The Supplier must reimburse the Company for the cost of returning the Supplies.

7.5. The Supplier must rectify at its own cost (including any costs of removal, re-installation, freight and insurance), any defects in the Supplies that arise from faulty materials, design, workmanship or installation (if the Supplies are installed by the Company), identified under clause 7.1..

7.6. The Supplier must at its own cost, re-supply any services or rectify any defects in the services that arise from faulty materials, design, workmanship or installation (if Supplies are installed by the Company as part of its services). Nothing in this clause limits the application of any express warranties provided by the Company in connection with the services.

7.7. The Company has relied on information provided by the Supplier in ordering the Supplies.

8. Indemnity

8.1. The Supplier is liable and will hold the Company and its directors, officers and employees (Indemnified Parties) harmless from, and indemnify them and keep them indemnified against, any and all loss (including but not exclusively any and all actual or contingent damage, loss, injury/death, costs or claims suffered by or brought against Indemnified Parties) resulting from or connected with this Agreement, the use and/or Purchase of the Supplier’s Supplies by Indemnified Parties or any third party or the performance of the services and the deployment of the Supplier’s services by Indemnified Parties or any third party, except to the extent that such loss is caused by the Company’s wilful misconduct or gross negligence.

8.2. The parties are in agreement that this indemnity remains enforceable notwithstanding the operation of any law relating to proportionate liability.

8.3. The Supplier is fully liable for the correct and timely payment of all taxes and levies (other than GST as provided in clause 9) owed in connection with the performance of the Agreement and will indemnify and keep indemnified the Indemnified Parties in respect of the same.

9. GST

9.1. All Consideration payable under this Agreement in relation to any Supply is exclusive of GST (but inclusive of all other taxes that may be payable by the Company in respect of the provision of Supplies received under this Agreement). To the extent that any Supply constitutes a Taxable Supply, the Consideration will be increased by the applicable amount of GST (GST Amount). Any GST Amount will be paid by the Company to the Supplier at the same time and in the same manner as the relevant Consideration is paid under this Agreement, subject to the Supplier providing to the Company at or prior to the time of payment a Tax Invoice.

9.2. In this clause: Consideration means any consideration payable under this Agreement in return for a Taxable Supply, but does not include any amount on account of GST; GST Act means the Goods and Services Tax Act 1999 (Cth) (as amended); GST has the same meaning given to that term in the GST Act; Supply has the same meaning given to that term in the GST Act; Tax Invoice has the same meaning given to that term in the GST Act; and Taxable Supply has the same meaning given to that term in the GST Act.

10. Termination

10.1. The Company may immediately terminate this agreement by notice in writing if the Supplier:

(a) commits any grossly negligent or fraudulent act;

(b) behaves in a manner which in the reasonable opinion of the Company is likely to adversely affect the reputation or public image of the Company or its product; or

(c) becomes bankrupt or insolvent or subject to any form of insolvency administration.

10.2. Either party may terminate this Agreement in the event that the other party breaches this Agreement and, having received notice in writing of that breach, fails to remedy that breach within seven days of receipt of the notice.

10.3. Either party may terminate this Agreement at any time by not less than one months’ notice in writing to the other party.

11. Miscellaneous

11.1. The failure by the Company to insist upon observance by the Supplier of any term of this Agreement will not be deemed a waiver nor amount to a waiver of any subsequent breach.

11.2. If any of these terms is held to be invalid, void, unenforceable or illegal for any reason, this Agreement will otherwise remain in full force and effect apart from such provision which shall be deemed to be deleted or modified to overcome that objection.

11.3. Any notice, invoice or document to be given to the Supplier will be sufficiently given if posted by ordinary prepaid post, emailed or faxed to the Supplier at the Supplier’s last known address, email address or facsimile number and will be deemed to have been received by the Supplier in the ordinary course of post or on receipt by the Company of a successful transmission answerback.

11.4. Variations of the Agreement will be effective only if agreed to by the Company in writing except where these terms provide otherwise.

11.5. This Agreement will be governed by and construed in accordance with the laws of the State of South Australia, Australia and the parties submit to the jurisdiction of the South Australian and Australian courts.

12. Privacy Act Authority

The Supplier irrevocably authorises the Company, its employees and agents to make such enquiries as it deems necessary to investigate the sustainability of the Supplier from time to time including (but without limiting the generality of the foregoing) the making of enquiries of persons nominated as trade referees, the bankers of the Company or any other credit providers (collectively “the information sources”) and the Supplier hereby authorises the information sources to disclose to the Company such information concerning the Supplier which is within their possession and which is requested by the Company