Terms and Conditions of Sale
1.1 “the Company” means Queensland Semiconductors Technologies Pty Ltd.
1.2 “the buyer” is the person purchasing the goods.
1.3 “Goods” are those referred to supplied by Queensland Semiconductor Technologies Pty Ltd.
Unless otherwise expressly agreed in writing by a Director of the Company all goods are sold upon the following terms and conditions and no agent or representative of the Company has any authority to vary or omit these terms and conditions. Any terms and conditions printed on the buyer’s order forms are binding only insofar as they are not at variance with these terms and conditions and they have been specifically agreed to in writing by a Director of the Company.
2. ACCEPTANCE AND VARIATION OF PRICE
2.1 Quotations issued by the Company whether verbally or in writing do not constitute offers and are subject to the Company’s written confirmation on receipt of the buyer’s order and no contract shall be concluded until such written confirmation is given.
2.2 All prices quoted or listed by the Company are based on the prices of the Company’s suppliers or the Company’s estimated costs at the time of quotation or listing and are subject to adjustment prior to despatch to cover any increase in such prices or costs or in taxation or duty which might take place prior to delivery and such prices are exclusive of packing carriage insurance and tax.
2.3 Where goods are to be imported the Company reserves the right to vary the price quoted to reflect the rate of exchange for purchase of the relevant currency in pounds sterling.
3.1 The Company will use all reasonable endeavours to deliver at the time stated by. Delivery dates shall be regarded as estimates only. The Company shall not be liable for any delay occasioned by any cause whatsoever beyond the Company’s control.
3.2 Goods shall be deemed to be delivered when they leave the premises of the Company or as the case may be the premises of the Company’s suppliers in circumstances where the goods are delivered direct from such suppliers.
3.3 In the case of delivery of goods by instalments the buyer will not be entitled to treat the delivery of faulty goods in any one instalment or the late delivery or non-delivery of any one instalment as a repudiation of the whole contract.
3.4 If the buyer fails to give delivery instructions within 14 days of it being notified the goods are ready for delivery the Company shall (without prejudice to any other rights or remedies available to it) be entitled (but not bound) to store the goods at any avail able place at the buyer’s expense (the Company may insure the goods in storage at the buyer’s cost if the buyer so requests in writing).
3.5 Unless otherwise stated goods will be consigned by goods air, train or road transport to the address in Australia specified by the buyer in writing.
3.6 The costs of carriage and packaging (including cases and materials) will be charged to the buyer on the invoice for the goods at the time of dispatch (the Company may insure the goods in transit at the buyer’s cost if the buyer so requests in writing). Packing cases and materials are non-returnable unless otherwise stated.
4. RISK AND TITLE TO GOODS
4.1 The risk in the goods passes to the buyer upon delivery but property in the goods remains vested in the Company and shall only pass from the Company to the buyer upon full payment being made by the buyer of all sums due on whatsoever account or grounds to the Company from the buyer. In the event of the goods being sold by the buyer in such manner as to pass to a third party a valid title to the goods, whilst any such sums are due as aforesaid the buyer shall be the trustee for the Company of the proceeds of such sale or to the claim for such proceeds and the buyer shall place such proceeds in a separate bank account. The Company’s rights under this sub-clause 4.1 shall attach to the proceeds of such sale. Nothing herein shall constitute the buyer the agent of the Company for the purpose of any such sub-sale.
4.2 The buyer agrees that prior to full payment being made as aforesaid the Company may at any time repossess the goods and enter upon the buyers premises and remove the goods therefrom (and dispose of the same in any manner it may decide) and that prior to such payment the buyer shall keep such goods as fiduciary agent and bailee and separate and identifiable for this purpose.
4.3 In the event of the goods becoming constituents of or being converted into other products whilst sums are due as provided in sub-clause 4.1 hereof the Company shall have the ownership of and title to such other products (but not by way of a charge) as if they were goods and accordingly this Clause 4 shall so far as appropriate apply to such other products subject to the buyer’s rights to the surplus of any moneys realised by the said products in excess of those due to the Company as provided herein.
4.4 Any implied authority that the buyer shall be entitled to sell the goods and pass property in the same to third parties in the normal course of its business or manufacture products out of the same or sell such products will continue until otherwise notified to the buyer by the Company or until the happening of any of the following events.
4.4.1 Any notice to the buyer that an Administrative Receiver or other Receiver or Manager is to be or has been appointed in respect of its undertaking or a material part thereof or other property or assets:
4.4.2 Any notice to the buyer that a petition to wind up the buyer is to be or has been presented to the buyer or otherwise or any notice to the buyer of a proposal to pass a Resolution to wind up the buyer (including any proposal by the buyer so to do):
4.4.3 A decision by the buyer to make a voluntary arrangement or composition with its creditors or any notice to the buyer and/or any of its creditors that a proposal for the same is to be or has been made:
4.4.4 The buyer becoming unable to pay its debts.
4.4.5 Any notice to the buyer that it is to be the subject of a petition for an Administration Order presented to the Courts or the making of an Administration Order in respect of the buyer: and upon the happening of any such events the buyer shall immediately notify a Director or other authorised officer of the Company.
4.5 On receipt of written notice from the Company or on the happening of any of the events set out in sub-clause 4.4 above the buyer’s implied authority to sell the Company’s goods shall be immediately withdrawn and all such goods and products made therefrom shall immediately be delivered to the Company.
5. NOTIFICATION OF LOSS OR DAMAGE
The Company must be informed in writing within three days of delivery of goods in the event of any shortage or damage and within ten days of receipt of invoice or notification of despatch whichever is the earlier in the event of total non-delivery of goods within the Australia Law (and within 14 days of receipt of invoice or notification of despatch whichever is the earlier in the event of total non-delivery of goods outside Australia) otherwise the goods shall be deemed to have been accepted by the buyer as being in good order and in conformity with the contract.
6. RETURNED GOODS AND CANCELLED ORDERS
6.1 No order for goods may be cancelled nor may goods be returned without the Company’s prior consent in writing and if such consent is given the goods must be returned at the buyer’s expense in the original condition and the original packaging and:
6.1.1 If the buyer cancels any contract in respect of manufactured goods or returns manufactured goods after the Company has issued its confirmation of order the buyer shall compensate the Company for all costs charges and expenses incurred by the Company including loss of profit by reason of such return or cancellation; or
6.1.2 If the buyer cancels any contract in respect of other goods or returns any other goods after the Company has issued its confirmation of order the buyer will be charged a handling charge of 30% of invoice value plus tax at the current rate.
6.2 In the event of cancellation or return by the buyer of part only of an order the Company shall be entitled to re-calculate the price for the retained or uncancelled part of the order as if it constituted the whole order and to re-invoice the buyer accordingly.
7.1 Unless otherwise stated payment is strictly net cash to be made within 30 days after the date of the invoice. Failure to make due payment in respect of deliveries or instalments under this or any other contract between the buyer and the Company shall entitle the Company to delay, suspend or cancel deliveries in whole or in part at its option.
7.2 If payment is not made in full by the due date the Company reserves the right to charge interest to the buyer at the rate of 3% per annum above the base rate from time to time of National Australian Bank on the unpaid balance (such interest to accrue on a day to day basis from the due date stated in the invoice (as well after as before any judgement).
7.3 Payment shall be due whether or not property in the goods has passed by virtue of Clause 4 above and the Company shall (without prejudice to any other right or remedy) accordingly be entitled to sue for the price once the same is due even if property in the goods has not passed.
8.1 The buyer shall inspect the goods upon delivery. The Company will make good at its option by repair or replacement any defects in the goods due solely to defective workmanship or materials which are notified to the Company and in the case of any defect discoverable upon reasonable examination such notification must be made within 14 days from the date of delivery and in the case of any defect not discoverable upon reasonable examination such notification must be made within a reasonable period of the date such defect is actually discovered provided that:-
8.1.1 The aforesaid obligations on the Company shall not extend to defects caused by wilful damage negligence (other than by employees or agents of the Company) incorrect storage or application movement installation or defects caused by fair wear and tear; and
8.1.2 If required by the Company and at the buyer’s cost the goods are returned within fourteen days of notification of the defect packaged and transported in accordance with the Company’s requirements; and
8.1.3 The aforesaid obligations on the Company shall in any event only apply for a period of three months from the date of delivery.
8.2 Save as herein set out and for liability for death or personal injury resulting from negligence on the part of the Company and save for breach of the sellers statutorily implied undertakings as to title all express or implied conditions representations or warranties as to description, quality or fitness of the goods or otherwise are expressly excluded.
8.3 Save for liability for death or personal injury resulting from negligence of the Company the Company shall not be liable under any one claim or under the total of all claims arising from any one act or default of the Company howsoever such claim or claims arise (be it by negligence or otherwise) for any loss over the figure AUD$1000,000 or such greater figure as is from time to time the limit of liability laid down by the Company’s insurers in respect of such claims PROVIDED THAT the Company shall not be liable for any consequential or indirect loss or loss of profits or of contract whatsoever (whether arising by the Company’s negligence or otherwise).
9. PATENT AND INTELLECTUAL PROPERTY RIGHTS
The buyer shall indemnify the Company fully against all liabilities costs and expenses which the Company may incur in respect of supply or manufacture of any goods in accordance with the buyer’s specifications involving infringement of any patent or other intellectual property right.
10. FORCE MAJEURE
The Company shall be excused from liability to the buyer if performance of the contract is prevented or hindered (in particular if an agreed delivery date is delayed) by any cause whatsoever beyond the Company’s control and in particular but without prejudice to the generality of the foregoing by
Act of God, war, riot, civil commotion, Government controls restrictions or prohibitions or any other Government act or omission whether local or national, fire, flood, subsidence, sabotage, accident, strike or lock out and shall not be liable for any loss or damage resulting therefrom suffered by the buyer.
11. SAFETY INSTRUCTIONS
The buyer undertakes with the Company that it will ensure compliance so far as is reasonably practicable by its employees agents licensees and customers with any instructions given by the Company or the manufacturer for the purpose of ensuring that the goods will be safe and without risk to health when properly used and will take any other steps or precautions as having regard to the nature of the goods are necessary to preserve the health and safety of persons handling using or disposing of them.
12. EXPORT CONTROL
The buyer acknowledges that the goods or technical data relating thereto are or may be subject to export control restrictions applicable to the Company and/or the buyer under Australian or foreign laws or regulations. The buyer will not do or omit to do anything that would place the Company in breach of the said laws or regulations. The buyer shall obtain all necessary governmental authorisations and consents for the export or re-export of the goods or technical data.
13. LEGAL INTERPRETATION
Any agreement to which these terms and conditions apply shall be governed and constructed in accordance with laws of Australia and any dispute arising out of or in connection with such agreement shall be determined by the Australian Courts.
14. SEVERANCE AND WAIVER
14.1 In the event of any part of these conditions being ineffective for any reason, the remainder thereof shall constitute the conditions binding upon the parties.
14.2 Failure or neglect by the Company to enforce at any time of the provisions hereof shall not be constructed as nor be deemed to be a waiver of the Company’s rights here under nor shall such failure or neglect in any way affect the validity of the whole or any part of these terms and conditions and the Company’s right to take subsequent action shall not be prejudiced thereby.