Page 3 - Terms & Conditions

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TERMS AND CONDITIONS [24]

9. WARRANTIES AND EXCLUSIONS OF LIABILITY

a) AAP warrants that the Goods when delivered to the Purchaser will comply with the Standard

Specification for the Goods. AAP is not required to supply Goods with any specification or

characteristics that are outside any such description for the Goods (if any) or the Standard

Specifications.

b) AAP shall be under no liability in respect of any defect arising from any drawing, design or

specification supplied by the Purchaser.

c) The Purchaser acknowledges, agrees, represents and warrants that:

i) as the use of the Goods is outside the control of AAP, the Purchaser is satisfied that

the Goods when supplied will have the condition, characteristics, quality and attributes

that will make them suitable or fit for any ordinary or special purpose required for those

Goods, even if that purpose is made known to AAP at any time;

ii) the Purchaser has or will in a timely manner conduct all mandatory or prudent tests and

apply to all mandatory or prudent quality control checks and procedures to ensure the

Goods and any product that is produced from them will be without defect and suitable

or fit for any purpose required for them; and

iii) the Purchaser has not relied upon any statement, representation, warranty, guarantee,

condition, advice, recommendation, information, assistance or service provided or

given by AAP or anyone on its behalf in respect of the Goods, other than those that are

expressly contained in the Contract.

d) The Purchaser releases and indemnifies AAP and its officers employees, consultants and

agents from and against all actions, claims, proceedings and demands (including those

brought by third parties) which may be brought against it, whether on their own or jointly

with the Purchaser and whether at common law, under tort (including negligence), in equity,

pursuant to statute or otherwise, in respect of any loss, death, injury, illness, cost or damage

arising out of any breach by the Purchaser of any warranty provided by it under paragraph

c) of this clause.

e) Except as expressly set out in the Contract and except for liability under any Prescribed

Terms:

i) all conditions, warranties, guarantees, terms and obligations expressed or implied by law

or otherwise relating to the Contract or the performance of AAP’s obligations under the

Contract or to any Goods or Services supplied by AAP under the Contract are excluded,

except for those conditions and warranties as to title in the Goods; and

ii) without limiting the generality of the foregoing, AAP gives no condition, warranty or

guarantee whatsoever as to the suitability, performance or fitness of the Goods for their

ordinary or any special use or purpose, and the description of the Goods in any Contract

or any other document shall not import any such condition, warranty or guarantee on the

part of AAP.

f) Notwithstanding anything to the contrary herein contained but subject to the provisions of

any Prescribed Terms, AAP’s liability in respect of any Claim by the Purchaser arising in

any way out of the Contract or its performance or from any failure to perform the Contract

including (without limiting the generality of the foregoing) for breach of any condition,

warranty or guarantee contained in the Contract or in any Prescribed Term and whether

that liability arises under contract, tort (including negligence), breach of statutory duty or

otherwise, is limited as follows:

i) if any guarantee under the Act is applicable to any Goods or Services supplied by

AAP and AAP’s liability is due to a failure to comply with the guarantee and such failure

cannot be remedied or is a major failure as defined in the Act (each such failure hereafter

referred to as a Relevant Failure), AAP’s liability is as stated in the Act in respect of that

Relevant Failure;

ii) if the liability is due to a failure to comply with any condition, warranty or guarantee

(including any guarantee under the Act) in respect of any Goods or Services supplied by

AAP under the Contract and such failure is not a Relevant Failure, AAP’s liability is limited

as follows in respect of such failure:

(A) if the failure is in respect of Goods, AAP’s liability is limited to replacement of the

Goods or the supply of equivalent Goods, the repair of the Goods, payment of the

cost of replacing the Goods or of acquiring equivalent Goods, or payment of the cost

of having the Goods repaired, as determined by AAP in its sole discretion; and

(B) if the failure is in respect of Services, AAP’s liability is limited to the supply of the

Services again or payment of the cost of having the Services supplied again, as

determined by AAP in its sole discretion.

g) Any condition, warranty, guarantee (including any guarantee under the Act), terms or

obligations expressed or implied by law or otherwise relating to the Contract or the

performance of AAP’s obligations under the Contract or to any Goods or Services supplied

by AAP under the Contract will not apply to AAP and AAP will not be liable for any loss or

damage to the Purchaser and the Purchaser will not be entitled to any Claim against AAP

whatsoever where:

i) the Goods, from any time after the delivery to the Purchaser, are subjected to incorrect

usage, failure to comply with AAP’s instructions (whether in writing or verbal), misuse,

wilful damage, negligence, fair wear and tear or use of the Goods with incompatible

products;

ii) the Goods are subjected to any alteration and/or repair and/or maintenance without

AAP’s prior written consent;

iii) work or maintenance are supplied in relation to the Goods other than by a person

authorised in writing by AAP;

iv) the Purchaser resets faults in the Goods without first obtaining written consent from

AAP;

v) the Purchaser:

(A) fails to notify AAP of any defect in the Goods (defective goods) within seven days

after those defects are first noticed by the Purchaser; and

(B) fails to give AAP a reasonable opportunity (from the time that the Purchaser gives

notice pursuant to clause 9g)v)(A) to inspect the defective Goods including any

defective Goods that have been attached to or incorporated in any real or personal

property.

h) To the extent permitted by law, AAP will have no liability to the Purchaser, however

arising and under any cause of action or theory of liability, in respect of special, indirect

or consequential damages, loss of profit (whether direct or indirect) or loss of business

opportunity arising out of or in connection with the Contract or its performance.

10.RETURN OF GOODS

a) Goods supplied to the Purchaser are not returnable except as provided in clause 9 above.

b) If the Goods are in accordance with clause 9a) and all Prescribed Terms and are otherwise

in compliance with the provisions of the Contract, AAP may from time to time under

exceptional circumstances and in its absolute discretion, choose to accept the return of

the Goods from the Purchaser. A cancellation fee will apply and the Purchaser will also

reimburse AAP for all costs associated with the delivery and return of the Goods.

11.INDEMNITY

The Purchaser will indemnify and keep indemnified AAP and its successors and assigns from

and against any claim, liability, loss or damage AAP may sustain, as a result of any breach,

act or omission, arising directly or indirectly from or in connection with this Contract by the

Purchaser or its representatives.

12.FORCE MAJEURE

AAP shall not be under any liability whatsoever for the consequences of any failure on its part

to perform or delay in performing any obligation under the Contract when due, whilst and to

the extent that such failure or delay is due directly or indirectly to any event of force majeure.

Without limiting the generality of the foregoing, this includes any liability whatsoever for any

delay in completion, delivery, despatch, shipment or arrival of the Goods or in the tender of any

documents or the like.

“event of force majeure” includes any acts of God, war, riots, strikes, lock outs, trade disputes,

fires, break downs, mechanical failures, interruptions of transport, Government action or any

other cause whatsoever, whether or not of a like nature to those specified above, outside the

reasonable control of AAP.

If there is an event of force majeure, AAP will notify the Purchaser of the event and the likely

impact on its performance under the Contract. If the event affect the capacity of AAP to

complete its material obligations under the Contract in a timely manner, AAP may by notice to

the Purchaser terminate the Contract without any liability whatsoever on its part arising from

such termination.

13.COST RECOVERY

Any expenses, costs or disbursements incurred by AAP in recovering any outstanding monies

owing by the Purchaser including debt collection fees and solicitors costs shall be paid by the

Purchaser.

14.TERMINATION

If:

i) the Purchaser fails to pay any moneys due and payable pursuant to the Contract; or

ii) the Purchaser breaches, repudiates or terminates the Contract; or

iii) winding up proceedings are commenced against the Purchaser; or

iv) a Liquidator, Administrator, Receiver, Manager or Controller (as defined by the Corporations

Act 2001 is appointed to the Purchaser or any part of its assets; or

v) the Purchaser commits an act of bankruptcy (as defined by the Bankruptcy Act 1966); or

vi) AAP has reasonable belief that the Purchaser is insolvent or a party may attempt to levy any

form of execution against the Goods; or

vii) the Purchaser suspends, or threatens to suspend, the conduct of its business; or

viii) the Purchaser becomes unable to pay its debts as and when they fall due, then AAP may

terminate the Contract, in which case clause 15 herein of these Conditions will apply.

15.TERMINATION AND CANCELLATION

In the event that the Purchaser purports to terminate and/or repudiates or cancel the Contract,

or if AAP terminates the Contract pursuant to the Contract, then, without prejudice to its other

rights and remedies, AAP may recover from the Purchaser all costs and expenses incurred by

AAP in its performance of the Contract, and all loss and damages arising from or relating to the

termination or repudiation including but not limited to the cost of any Goods ordered but not

delivered (which cannot be cancelled).

16.INTELLECTUAL PROPERTY RIGHTS

a) Property, right and title to all Intellectual Property relating to the Goods remains with AAP.

The Purchaser will be entitled to a non exclusive, non transferable licence of the Intellectual

Property to the extent it is required for the proper use and performance of the Goods.

b) All Intellectual Property created during the course of the supply of the Goods or as a result

of work done in connection with the supply of the Goods will be the property of AAP. The

Purchaser will execute all documents evidencing ownership of the Intellectual Property as

AAP may reasonably require.

17.WAIVER

A waiver of any right or remedy under the Contract is only effective if given in writing and shall

not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to

exercise any right or remedy provided under the Contract or by law shall constitute a waiver of

that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or

any other right or remedy.

18.LICENSES, DUTIES, ETC.

The payment of any taxes and the obtaining and maintenance in full force and effect of any

necessary export or import licenses, authorisations or consent in respect of the Goods is the

sole responsibility of the Purchaser and AAP shall be under no liability whatsoever in respect of

Goods exported or imported without any necessary licenses, authorisations or consent.

19.INDUSTRIAL PROPERTY RIGHTS

The Purchaser shall not alter, remove or in any way tamper with any of the trade or other marks

or numbers of AAP attached to or placed upon the Goods.

20.NOTICES

Any notice or other communication given to a party under or in connection with the Contract

shall be in writing, addressed to that party at its principal place of business or such other

address as that party may have specified to the other party in writing in accordance with this

clause, and shall be delivered personally, sent by pre paid first class post, recorded delivery,

commercial courier.

21.ASSIGNMENT

The Purchaser may not assign or transfer or purport to assign or transfer any of its rights

or obligations under or in connection with the Contract to any other person or corporation

whatsoever.

22.SUB-CONTRACT

AAP reserves the right to sub-contract the performance of any Contract or part thereof to any

other party or person or corporation it may determine.

23.PROPER LAW AND JURISDICTION

This Contract shall be governed by and construed in accordance with the laws of New South

Wales, Australia. The Purchaser agrees to submit to the non exclusive jurisdiction of the New

South Wales Courts and courts of appeal therefrom for all purposes of or in connection with

this Contract.

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