Standard Terms & Conditions

General

1. These Terms apply to all Quotes, Purchase Orders and sales of Equipment.
2. LSA and the Purchaser hereby agree and acknowledge that the Terms are hereby incorporated into any agreement between them relating to the sale of Equipment by LSA to the Purchaser.
3. These Terms prevail over any other terms and conditions relating to the sale of Equipment to the extent of any inconsistency.
4. Any variation to the Terms is not binding on LSA unless it is in writing and signed by a duly authorized representative of LSA.

Definitions and Interpretation

1. Definitions
   In these Terms unless a contrary intention appears:

   "Business Day"

   means a day on which the Commonwealth Bank of Australia is open for business in Australia.

   "Confidential Information"

   means all trade secrets, ideas, know-how, concepts and information whether in writing or otherwise relating in any way:

   1. owned by either party;
   2. the Equipment;
   3. Intellectual Property Rights;
   4. a party's affairs or businesses, sales, marketing or promotional information;
   5. the terms of the agreement between LSA and the Purchaser, but does not include information that:
   6. is or becomes publicly available other than through breach of this provision; or
   7. was known to the Purchaser at the time of disclosure, as demonstrated by written records; or
   8. later becomes known to the Purchaser from another source without restriction.

   "Equipment"

   means the equipment, goods or products sold by LSA to the Purchaser as specified in the Purchase Order;

   "Equipment Start-Up Service"

   means services provided as specified in Clause 9 of the Terms;

   "Force Majeure Event"

   means an event specified below:

   1. any act of God;
   2. any outbreak or escalation of hostilities (whether or not war has been declared) or any other unlawful act against public order or authority;
   3. any industrial dispute;
   4. any governmental restraint; or
   5. any other event which is not within the reasonable control of the parties.

   "Intellectual Property Rights"

   means any and all intellectual and industrial property rights throughout the world including rights in respect of or in connection with:

   1. any Confidential Information;
   2. copyright;
   3. inventions (including patents);
   4. trademarks, service marks; and
   5. designs, circuit layouts,

   whether or not now existing and whether or not registered or registrable and includes any right to apply for the registration of such rights and includes all renewals and extensions.

   "LSA"

   means Lear Siegler Australasia Pty Limited.

   "PPSA"

   means the Personal Properties Securities Act 2009 (Cth) as amended from time to time.

   "Terms"

   means the LSA standard terms and conditions contained in this document and which are incorporated into all Quotes, Purchase Orders and sales of Equipment by LSA to the Purchaser;

   "Prices"

   means the price or prices specified for the Equipment as contained in the Purchase Order as agreed between LSA and the Purchaser;

   "Purchaser"

   means purchaser referred to in the Quote or Purchaser Order;

   "Purchase Order"

   means the purchase order signed by the Purchaser after acceptance of the Quote in respect of the sale of Equipment;

   "Quote"

   means the quote issued by LSA in a form approved by LSA from time to time, to the Purchaser containing the essential terms in respect of which LSA is prepared to sell the Equipment to the Purchaser.

   "Supplier"

   means a supplier (or manufacturer) of Equipment to LSA.

2. Interpretation
   In these Terms:
   1. headings are for convenience only and do not affect the interpretation of the Terms;
   2. explanatory comments do not form part of the Terms and are not legally binding;
   3. a word in the singular includes the plural, and the other way around;
   4. words importing a gender include any gender;
   5. other parts of speech and grammatical forms of a word or phrase defined in these Terms have a corresponding meaning;
   6. a reference to a statute includes an amendment or re-enactment to that legislation and includes subordinate legislation in force under it;
   7. a reference to a document includes an amendment or supplement to, or replacement or novation of, that document;
   8. a reference to a party includes that party's successor and permitted assigns;
   9. a reference to a person or words denoting a person includes that person's successors, legal personal representative and associates; and
   10. the words "includes" and "including" or words of similar effect are not words of limitation.

Supply & Quotes

1. LSA will supply and the Purchaser will purchase Equipment from LSA on the Terms contained in this document. LSA is not obliged to supply equipment to the Purchaser unless it agrees to do so.
2. The Purchaser warrants that the Equipment supplied by LSA pursuant to these Terms will be used in a commercial or business operation and not for personal, domestic or household use or consumption.
3. LSA will provide a Quote to the Purchaser which will contain the essential terms and conditions upon which LSA is prepared to sell the Equipment to the Purchaser.
4. The Purchaser must, unless otherwise agreed, accept the Quote by signing and returning it to LSA within thirty (30) days of the Quote or provide a Purchase Order referencing the Quote. If LSA does not receive a signed Quote or a Purchase Order within that time it may be withdrawn by LSA.
5. Upon acceptance of the Quote the Purchaser must give LSA a Purchase Order.

Purchase Orders

1. Form of Purchase Order
   The Purchase Order must be in a form acceptable LSA and signed by the Purchaser. The Purchase Order will constitute an offer by the Purchaser to LSA to purchase the Equipment on the terms and conditions contained in the Purchase Order and shall only be contractually binding on LSA when accepted by LSA.
2. Deposit
   LSA may issue an invoice for a deposit in respect of the Equipment on or after acceptance of a Purchase Order.
   Receipt of a deposit by LSA is not acceptance of a Purchase Order unless it is accepted in accordance with clause 4.1.
3. Cancelling Purchase Orders
   The Purchaser may cancel or vary its Purchase Orders only by agreement with LSA and in such event the Purchaser agrees to pay LSA reasonable and proper costs which shall take into account expenses already incurred and commitments made by LSA as well as any other loss incurred by LSA by reason thereof.
4. Contract
   Upon signed acceptance of the Purchase Order by LSA the parties shall have entered into a contract on the terms contained in the Purchase Order and these Terms.

Prices

1. All Prices are in Australian dollars unless otherwise specified. Prices do not include any customs duty, taxes or statutory imposts and are exclusive of GST.
2. Prices are subject to exchange rate variation where relevant. The following provisions shall apply in the event the Australian dollar has reduced against the currency in which LSA is required to pay its Supplier:
   1. If the change occurs between the date of the Quote and the date of the LSA Invoice then LSA can adjust the Price by using the rate specified in clause 5(c) on the date of the LSA Invoice; and
   2. If the change occurs between the date of the LSA Invoice and receipt of the payment (or payments, if being made by installments) by the Purchaser and/or the date (or dates, if being paid by installments) LSA pays its Supplier, then the Purchaser agrees to pay an amount in addition to the Price by using the rate specified in clause 5(c) and LSA will invoice that amount to the Purchaser and the Purchaser shall pay such invoice within 14 days of the date of that invoice.
3. The exchange rate to be used by LSA in calculating the amounts referred to in the preceding clause shall be the rate available to LSA from the Commonwealth Bank of Australia on the relevant date and the rate determined by LSA shall, in the absence of manifest error, be binding and conclusive on the Purchaser.
4. Where the delivery date for the Equipment is scheduled or postponed at the Purchaser’s request for longer than six (6) months after the Purchase Order has been accepted by LSA, LSA reserves the right to adjust the Prices in effect at the time of delivery. LSA will advise the Purchaser any changes in Price for the Equipment prior to delivery.
5. All Prices are always subject to correction by LSA in the event of error. Unless otherwise expressly agreed in writing the Price of the Equipment shall be the price specified in the Purchase Order plus the amount which LSA is required to pay on account of any charges which may be levied by any government (domestic or foreign) plus any amount that reflects any variation in exchange rates (as detailed above), costs of labour, materials and overheads and for the avoidance of doubt this may include any carbon or greenhouse gas emission related charges.

Payment Terms

1. The Purchaser must pay an LSA invoice for the Equipment within thirty (30) days from the date of the Invoice, subject to the Purchaser having satisfactorily completed a credit application and being granted credit by LSA.
2. If LSA does not grant the Purchaser credit terms then all Equipment is sold by LSA to the Purchaser on a cash before delivery basis.
3. Late payments of Invoices are subject to an account maintenance charge of 1.5% of the invoice value per month or part thereof until paid in full.

Delivery, Risk & Title

1. Delivery – Domestic
   LSA will deliver the Equipment to the Purchaser EXW in accordance with Incoterms 2010. If LSA is required to do anything to organize delivery it is at the cost of the Purchaser.
2. Delivery – International
   LSA will deliver the Equipment to the Purchaser FCA in accordance with Incoterms 2010. If LSA is required to do anything to organize delivery it is at the cost of the Purchaser.
3. Delivery – Delay or Cancellation
   1. The delivery times made known to the Purchaser are estimates only and LSA is not be liable for late delivery or non-delivery for whatever reason.
   2. LSA is not liable for any loss, damage or delay occasioned to the Purchaser or its customers arising from the late or non-delivery or late installation of the Equipment.
   3. LSA may at its option deliver the Equipment to the Purchaser in any number of installments unless there is a condition in the Purchase Order to the effect that the Purchaser will not take delivery of the Equipment by installments.
   4. If LSA delivers any of the goods by installments, and any one of those installments is defective for any reason:
      1. it is not a repudiation of agreement between LSA and the Purchaser; and
      2. the defective installment may be a severable breach that gives rise only to a claim for compensation.
   5. Where a delivery is cancelled and a sale terminated as a consequence of a Force Majeure Event, LSA shall have no liability other than to return the deposit received to the Purchaser within a reasonable time, subject to the terms of any agreement LSA may have with a supplier to the contrary.
4. Risk
   The passing of risk between the parties in relation to the Products shall be in accordance with clauses 7.1 and 7.2 depending on the type of delivery.
5. Title
   Title to the Equipment delivered by LSA to the Purchaser will remain with LSA:
   1. until the Purchaser has paid the price for the Equipment the subject of a specific invoice and until the Purchaser has paid LSA any other money that the Purchaser may owe to LSA on any other account; and
   2. if the Purchaser disposes of the Equipment before payment has been made to LSA then the Purchaser is hereby deemed to hold the proceeds of such disposal on trust for LSA and the Purchaser hereby agrees that when it disposes of the Equipment and receives payment before payment to LSA, it does so as the fiduciary agent of LSA.
   3. In the event of a default in relation to payment for the Equipment, the Purchaser agrees that LSA may retain all payments which have been made on account of the sale of the Equipment and that LSA shall be entitled to the immediate possession of the Equipment and shall be entitled to enter the premises where the equipment may be located and remove the Equipment without prejudice to LSA’S right to recover damages that LSA may suffer by reason of such default.
6. Personal Properties Securities Act 2009
   1. The Purchaser acknowledges that the agreement between the parties on the Terms constitutes a security agreement for the purposes of Section 20 of the PPSA and that a security interest exists in all Equipment previously supplied by LSA to the Purchaser (if any) and in all future equipment supplied by LSA to the Purchaser (and the proceeds thereof);
   2. The Purchaser will execute documents and do such further acts as may be required by LSA to register the security interest granted to LSA pursuant to the agreement under the PPSA;
   3. Until ownership of the Equipment passes from LSA to the Purchaser, the Purchaser waives its rights under the following provisions of Chapter 4 of the PPSA:
      1. to receive a notice of intention of removal of an accession (Section 95);
      2. to receive a notice that LSA decides to enforce its security interest in accordance with land law (Section 118);
      3. to receive a notice of enforcement action against liquid assets (Section 121(4));
      4. LSA’s obligation to dispose of or retain collateral (Section 125);
      5. to receive a notice of disposal of Equipment by us purchasing the Equipment (Section 129);
      6. to receive a notice to dispose of Equipment (Section 130);
      7. to receive a statement of account following disposal of Equipment (Section 132(2));
      8. to receive a statement of account if no disposal of Equipment for each 6 month period (Section 132(4));
      9. to receive notice of any proposal by LSA to retain Equipment (Section 135(2));
      10. to object to any LSA proposal to either retain or dispose of Equipment (Section 137(2));
      11. to redeem the Equipment (Section 142);
      12. to reinstate the Security Agreement (Section 143);
      13. to receive a notice of any verification statement (Section 157(1) and Section 157(3));
   4. The Purchaser further agrees that where LSA has rights in addition to those under Chapter 4 of the PPSA, those rights will continue to apply.
   5. Until ownership of the Equipment passes to the Purchaser the Purchaser must not give a written demand to LSA or allow any other person to give LSA a written demand requiring it to register a financing chain statement under the PPSA or enter to or allow any other person to enter into the register of personal properties securities a financing chain statement under the PPSA;
   6. The Purchaser acknowledges that it has received value as at the date of first delivery of the Equipment and has not agreed to postpone the time for attachment of the security interest (as defined in the PPSA) granted to LSA under these Terms.
   7. The Purchaser irrevocably grants to LSA the right to enter upon the Purchaser’s property or premises without notice and without being in any way liable to the Purchaser or to any third party, if LSA has cause to exercise any of its rights under Sections 123 and/or 128 of the PPSA, and the Purchaser shall indemnify LSA from any claims made by any third party as a result of such exercise.
7. Set Off
   The Purchaser agrees that LSA may set off any money that LSA owes to the Purchaser against any money owing by the Purchaser to LSA and the Purchaser is not entitled to withhold payment of any money in respect of any set off or claim the Purchaser might have against LSA.

Equipment Installation

1. Unless otherwise specified, all Equipment shall be installed by the Purchaser at its own cost.
2. The Purchaser has full responsibility for ensuring that the Equipment and its installation comply with all recommended procedures of the manufacturer of the Equipment and with all relevant laws.

Equipment Service

1. LSA is not required to provide the Equipment Start-Up Service unless specifically contracted in writing and specified in the Quote or Purchase Order.
2. Where the Equipment Start-Up Service is contracted, additional conditions shall apply as follows: “Equipment Start-Up Service Conditions”
   1. The Purchaser is entitled to one (1) trip by LSA service personnel for Equipment Start-Up Service, subject to the following conditions:
   2. The Purchaser must have sufficiently completed installing the Equipment to be operated normally in the intended application on the scheduled service day;
   3. The Purchaser must provide the following:
      1. Easy and safe access to the Equipment;
      2. Adequate supporting plant personnel.
      3. Generally expedite any repairs, modifications or tasks necessary for LSA service personnel to complete their assigned responsibility in a timely manner.
   4. LSA reserves the rights to charge the Purchaser for excess time spent by LSA service personnel if the above two (2) conditions are not adhered to.
   5. LSA shall have absolute discretion in determining the satisfactory performance of its service personnel undertaking the Equipment Start-Up Service.
   6. The Purchaser shall pay for any subsequent site visit made at the request of the Purchaser.

Returned Equipment

1. LSA is not under any duty under any circumstances to accept Equipment returned by the Purchaser and will do so only on terms to be agreed in writing by LSA in each individual case.
2. All returns are subject to a handling charge at the discretion of LSA.

Warranties, etc

1. If the Equipment is not manufactured by LSA the guarantee of the manufacturer of the Equipment is accepted by the Purchaser and is the only guarantee given to the Purchaser in respect of the Equipment. LSA agrees to assign to the Purchaser on written request made by the Purchaser the benefit of any warranty or entitlement to the Equipment that the manufacturer has granted to the LSA under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
2. LSA is not liable for and the Purchaser releases LSA from any claims in respect of faulty or defective design of any Equipment supplied unless such design has been wholly prepared by LSA and the responsibility for any claim has been specifically accepted by LSA in writing. In any event LSA’s liability under this paragraph is limited strictly to the replacement of defective parts in accordance with clause 10.1 of these Terms.
3. Except as provided in these Terms, and to the full extent permissible by law, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Equipment for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. LSA is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Equipment or arising out of the LSA’s negligence or in any way whatsoever.
4. Liability of LSA for a breach of a condition or warranty implied by Part 3–2 Division 1 of the Competition and Consumer Act 2010 (Cth) (“CCA”) is limited to:
   1. in the case of goods, any one or more of the following:
   2. the replacement of the Equipment or the supply of equivalent Equipment;
   3. the repair of the Equipment;
   4. the payment of the cost of replacing the Equipment or of acquiring equivalent Equipment;
   5. the payment of the cost of having the Equipment repaired; or
   6. in the case of services:
   7. the supplying of the services again; or
   8. the payment of the cost of having the services supplied again.
5. LSA’s liability under s 274 of the CCA is expressly limited to a liability to pay to the Purchaser an amount equal to:
   1. the cost of replacing the Equipment;
   2. the cost of obtaining equivalent Equipment; or
   3. the cost of having the Equipment repaired, whichever is the lowest amount.

1. Purchaser to Indemnify LSA
   The Purchaser agrees to indemnify and hold LSA harmless for any claim, loss, suit, action or judgment, including legal fees, brought against LSA by virtue of, or arising out of an alleged improper sale, application, use or servicing of the Equipment by Purchaser, or any other alleged improper or negligent act or omission of the Purchaser.
2. Modified Products
   LSA does not provide any guarantee or warranty for loss or damage caused by any modification to the Equipment by the Purchaser. All liability for modifications to Equipment by the Purchaser shall be borne by the Purchaser and the Purchaser shall defend, indemnify and hold LSA harmless from any claims relating to such modifications.

Confidentiality

1. Confidential Information
   The Purchaser acknowledges that the Purchaser may be given access to Confidential Information of LSA in the course of selling the Equipment.
2. No Disclosure
   The Purchaser will keep the Confidential Information confidential and will not disclose it to any third party or use it otherwise than:
   1. for the purposes of the agreement;
   2. as authorised in writing by LSA;
   3. as required by any law, judicial body or governmental agency; or
   4. by way of disclosure to that party’s professional advisors who have agreed to keep the Confidential Information confidential.
3. Responsibility for Employees, Agents etc
   The Purchaser will ensure that its employees, agents, contractors and relevant agents within its control comply with this clause.

Third Party Intellectual Property Rights

1. LSA does not warrant that the Equipment sold does not infringe third party IPR. The Purchaser agrees to notify LSA in writing promptly should it receive any claims of Intellectual Property Rights infringements.
2. Where third party IPR infringement arises out of drawings or specifications furnished by the Purchaser, the Purchaser agrees to indemnify LSA in accordance with clause 11.6 of this agreement.

Variation

Except as otherwise provided, this agreement may not be discharged, extended, amended or modified in any way except by a written instrument signed by a duly authorised representative of each party.

Relationship of the Parties

1. No Partnership
   This agreement does not create any partnership, joint venture or agency relationship between the parties.
2. No Representations of Authority
   The Purchaser may not enter into any agreements or incur any liabilities on behalf of the LSA without the LSA prior written consent and may not represent to any person that it has any authority to do so.

Enforceability

1. Ineffectiveness
   Any clause or part of a clause of this agreement which is ineffective in any jurisdiction is ineffective only to that extent in that jurisdiction.
2. Severance of Ineffective Parts
   Where any clause or part of that clause is ineffective it may be severed without affecting any other part of this agreement.

Waiver

1. No Waiver Except by Notice in Writing
   No right under this agreement is waived or deemed to be waived except by notice in writing signed by the party waiving the right.
2. No Waiver of Subsequent Breaches
   A waiver by one party under clause 17.1 does not prejudice its rights in respect of any subsequent breach of this agreement by the other party.
3. No Waiver by Extension or Forbearance
   A party does not waive its rights under this agreement because it grants an extension or forbearance to the other part.

Assignment

1. LSA may assign
   The LSA may assign its rights under this agreement without the consent of the Purchaser.
2. Purchaser may not assign
   The Purchaser may not assign its rights or obligations under this agreement without the prior written consent of LSA, otherwise than to an associate of the Purchaser.

Entire Agreement

The Purchase Order supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between LSA and the Purchaser.

Counterparts

This Purchase Order may be executed in any number of counterparts.

Survival

The Purchase Order and the Terms survive any termination of this agreement to the extent permitted by law.

Legal Advice

Each party acknowledges that in relation to the agreement between them it has received legal advice or has had the opportunity of obtaining legal advice.

Costs, Stamp Duty and Other Taxes

1. Costs
   Each party will bear its own costs and expenses in relation to the negotiation, preparation, execution, delivery and completion of this agreement and any other related documentation.
2. Stamp Duty and Taxes
   The Purchaser will pay all stamp duty, taxes and other governmental charges payable or assessed (if any) on this agreement and any other related documentation.

Goods & Services Tax (GST)

The parties agree that any and all amounts and other consideration referred to in these Terms are exclusive of any GST and that if any GST is imposed on any supply made under this agreement, the party making the supply LSA will collect the GST from the recipient (the Purchaser) in addition to any consideration due for the supply. The GST imposed on the supply is calculated by multiplying the amount or value of the consideration for the supply by the GST tax rate prevailing as at the date the supply is made. If the recipient of the supply is required to pay an additional amount for GST pursuant to this clause, then the recipient will pay the increased amount in the same manner and at the same time as the consideration, payable pursuant to this agreement.

Governing Law and Jurisdiction

1. Governing Law
   This agreement is governed by the laws of the State of New South Wales Australia.
2. Jurisdiction
   The parties irrevocably submit to the non-exclusive jurisdiction of the courts of the State set out above.

Dispute Resolution

Any dispute between the parties to this agreement, including disputes arising out of or relating to these Terms which are not resolved between the parties themselves, shall be submitted to binding arbitration in New South Wales, Australia before a single arbitrator in accordance with the Commercial Arbitration Act 2010. The Tribunal shall consist of one arbitrator and the language of the arbitration shall be English. Judgment upon the award of the arbitrator may be entered in any court having relevant jurisdiction. Any dispute shall be submitted to arbitration pursuant to this agreement within one year from the date the dispute first arose or shall be forever barred. Arbitration shall be in lieu of all other remedies and procedures available to the parties, provided that either party may seek injunctive or other interlocutory relief prior to the commencement or during such proceedings. The costs of such proceedings are to be borne by the parties equally.