Conditions for Order

1. Definitions

Buyer means XENON Systems Pty Ltd (A.C.N. 073 339 316)
Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trade marks, patents and registered designs.
Order means the order for the Products constituted by this document.
Products means the goods and, if any, services specified in the order form.
Seller means the seller of the Products specified in the order form.

2. General

(a) The acceptance of this Order by the Seller includes agreement by both Seller and Buyer that these terms set out the sole basis for the sale of Products to the exclusion of any conditions of sale appearing on any document of the Seller.
(b) Modification of these terms expressed in any document of the Seller after the date of this Order does not apply to this Order unless expressly accepted in writing by the Buyer.

3. Alterations

No changes to this Order are to be made by the Seller without the written agreement of the Buyer.

4. Price

This Order is placed on a firm price basis in accordance with the prices listed overleaf. It is not subject to increases in price without the Buyer’s prior approval in writing and includes delivery to the destination stated in this Order and the off-loading of the Products by the supplier at the point of destination.

5. Standard to conform to specifications

The Seller must ensure that the Products are in accordance with and conform to any specifications, drawings, samples or other description (if any) furnished by the Buyer to the Seller. Any in-progress inspection by the Buyer’s employees or agents or other representative does not affect this requirement.

6. Warranties

6.1 The Products must:
(a) be fit for the purpose for which Products of the same kind are commonly supplied and any other reasonable purpose made known to the Seller;
(b) be of merchantable quality and be free from defect in material and workmanship; and
(c) carry any applicable manufacturer’s warranty which passes on to any buyer or customer from the Buyer without liability to the Buyer. The Seller must assign to the Buyer at the request of the Buyer the benefit of any warranty or guarantee that the Seller has received from any supplier (whether under contract or by implication or operation of law).
6.2 The Seller warrants that:
(a) Where applicable:
(i) The Products comply with the standards for electromagnetic compatibility (e.g.: AS/NZS CISPR 32), display the RCM logo, have a Supplier’s Declaration of Conformity, and a compliance record or technical construction file (TCF).
(ii) the Products comply with all applicable product safety standards including AS/NZS 3820 and the applicable product-specific safety standard (e.g.: AS/NZS 62368.1 or the global equivalent with applicable CB extensions), and have a technical documentation file (compliance folder);
(iii) the Products which are designed or marketed as suitable for household, personal or similar use display the RCM logo, have a technical documentation file (compliance folder), and registration with EESS Certification Database along with the responsible supplier per AS/NZS 4417.2 and applicable legislation.
(b) The Seller will provide all applicable testing reports and certificates of compliance upon request.
6.3 The Seller warrants that:
(a) it will comply with all applicable laws, statutes and regulations in force from time to time which relate to Modern Slavery;
(b) it will take reasonable steps to ensure that there is no Modern Slavery in its supply chains or in its sub-contract’s supply chains;
(c) it will implement and maintain throughout the term of this agreement appropriate due diligence procedures for its own suppliers and sub-contractors to ensure that there is no Modern Slavery in its supply chains;
(d) it will notify the Buyer as soon as it becomes aware of any actual law suspected Modern Slavery in a supply chain which has a connection with this agreement; and
(e) it will maintain a complete set of records to trace the supply chain of all Products provided to the Buyer in connection with this agreement.

7. Inspection and return

(a) All Products are received subject to inspection of the Products within seven days after delivery or before delivery at the Buyer’s discretion irrespective of date of payment.
(b) Signed delivery dockets do not mean acceptance by the Buyer of Products delivered, but only the number of packages or cartons delivered.
(c) The Buyer must promptly notify the Seller of any defects appearing and hold Products so found to be defective for the Seller’s instructions and at the Seller’s risk for a reasonable period not exceeding seven (7) days.
(d) If the Seller’s instructions are not received within the period mentioned in clause 7(c), the Buyer may return the defective Products to the Seller’s premises at the Seller’s expense and risk. Any reasonable expense incurred by the Buyer in such return is payable by the Seller and may be set off by the Buyer against any moneys otherwise due by the Buyer to the Seller.

8. Royalties

Products are for the use of, or resale by, the Buyer or its associated companies, and may be incorporated in any products (whether owned, used or possessed by the Buyer). The Seller must not make any claim for royalties or other additional compensation from the Buyer by reason of, or connected with, such use, resale or manufacture.

9. Patent rights

(a) The Seller agrees to defend, protect and indemnify the Buyer, its successors and assigns, from and against any claim arising from the lawful use of the Products by the Buyer or third parties. This includes all claims for actual or alleged infringement of any letters patent, trademarks, copyright, design, confidential information or similar protection whether granted by the Commonwealth of Australia or any foreign state or the common law. This is provided that the Seller will not indemnify the Buyer, its successors and assigns, from or against any claim to the extent that such claim arises as a result of the negligence, wilful misconduct, fraud or breach of duty of the Buyer, its successors and assigns or any of their partners, employees or agents.
(b) If the Seller makes any representation or statement directly or indirectly to the Buyer that the Products ordered are protected by one or more patents, and any such patent is found to be invalid, the Buyer may cancel this Order or any contract arising from this Order and recover any money paid to the Seller under this agreement as a liquidated debt.

10. Intellectual Property Rights to remain Buyer’s property

(a) Where Products are specially created or commissioned using the intellectual property of the Buyer, all Intellectual Property Rights in the Products remains the Buyer’s property whether during or after the termination of this agreement.
(b) The Seller must use reasonable endeavours to protect the Buyer’s Intellectual Property Rights.
(c) The Seller agrees that it will not without the Buyer’s prior written consent use any of the Buyer’s Intellectual Property Rights in the production, manufacture or design of any other articles, nor of larger quantities of the Products than those required in this Order.
(d) This clause survives termination of this Agreement.

11. Designs and specifications to be retained in confidence

Any Products or work made or done according to the Buyer’s design or specifications or developed for the Buyer at the direction of the Buyer, or any original or copy designs or specifications supplied by the Buyer, are held by the Seller on the Buyer’s behalf and at the Buyer’s disposal and must not be disclosed or furnished to any other person, firm or government without the Buyer’s written consent. The Seller must take all reasonable precautions to protect such confidentiality.

12. Packing costs and standard

(a) The Seller and any of its agents or suppliers must not include a charge to the Buyer for wrapping, packing, cartons or crating unless authority for such charge is expressly incorporated in this Order.
(b) Where the Products are to be shipped by a third party carrier then in that event the Products should be packed in accordance with the carriers’ reasonable requirements in order to secure reasonable transportation and insurance rates.

13. Advertising

A party must not, without the other party’s prior written consent, advertise or publish the fact that the parties have entered into an agreement for the sale of the Products by the Seller to the Buyer.

14. Payment

(a) The purchase price for the Products plus GST where applicable, is payable on or before the last day of the month following the delivery of the Products (Payment Due Date), unless the parties agree on different payment terms in writing.
(b) Where the Products are delivered in any number of instalments, the Seller may only invoice for Products as and when delivered.

15. Cancellations

(a) The Buyer reserves the right to cancel an Order if the Products ordered are not delivered to its premises on the delivery date specified in an Order.
(b) Where the Buyer cancels an Order under clause 15(a) after the delivery date has elapsed, the Seller does not have and may not prosecute any claim whatsoever at law or in equity against the Buyer. This is provided that the failure of the Seller to deliver the Products on the delivery date was not due to the conduct of the Buyer.
(c) Where:
(i) the Seller delivers the Products after the delivery date;
(ii) the Buyer has cancelled the Order under clause 15(a) above; or
(iii) the Seller’s failure to deliver the Products was not as a result of the Buyer’s conduct, the Seller must, in addition to any other liability it may have under this agreement, pay the costs of removing the Products from the Buyer’s premises.

16. Responsibility

Unless otherwise provided by Incoterms 2020. the Products are at the Seller’s risk until delivered to the destination stated in this Order. Once the Products are delivered to the destination stated in this Order, the risk is transferred to the Buyer whether or not transfer of title occurs on delivery of the Products.

17. Governing Law and Jurisdiction

This agreement and the rights and obligations hereunder shall be governed by and construed according to the laws of the State of Victoria and the Commonwealth of Australia, and shall be subject to the exclusive jurisdiction of the courts of Victoria and those courts which can hear appeals from those courts.

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Version: 12-August-2021