Terms and Conditions
1. ACCEPTANCE OF QUOTES AND PURCHASE ORDERS
Sale of any goods or any related services (collectively, “Products”) referenced in Customer’s written Purchase Order (“Purchase Order”) to Supplier ‘s Quotation (“Quote”) is expressly conditioned upon the terms and conditions set forth below. Other than as specifically provided in a separate written agreement between Supplier (“Sentient” or “Supplier”) and Customer, any additional or different terms specified or referenced in Customer’s Purchase Order are hereby excluded and shall not be deemed effective or binding unless expressly agreed to in writing by an authorized representative of Supplier. These terms and conditions represent the entire agreement between the Customer and Supplier pertaining to the subject matter of this Purchase Order and shall supersede all prior oral and written agreements, proposals, communications, and documents. No Purchase Order placed by Customer shall be deemed accepted unless or until Supplier issues a written acknowledgement. Any amendment, change order, revision, or termination to an already-accepted Purchase Order shall be subject to acceptance by an authorized representative of Supplier.
2. PRICES, TAXES
2.1. The prices set in Supplier’s Quote (“Price”) are in United States Dollars. Nothing set forth in Customer’s Purchase Order shall modify or amend the quoted Prices, quantities, and/or the scope of Products offered, unless such modification or addition is agreed to in writing by Supplier prior to the Purchase Order.
2.2. The prices are exclusive of any taxes (including, without limitation, sales, use, value added, goods and services, business, property (real or personal, tangible or intangible), license, documentation, registration, import, export, excise, franchise, stamp, or other tax), custom fees or tolls, levy, impost, withholding, fee, duty or other charge of any nature imposed by any governmental authority or other tax authority in any jurisdiction, and any and all fines, penalties, additions to tax, interest and other charges relating thereto (collectively, “Taxes”). All Taxes shall be paid by Customer in addition to the Price. If any payment by the Customer is subject to withholding tax, the Customer agrees to increase the amount of any payment which is subject to a withholding or pay an additional amount as is necessary to ensure that Supplier receives the same amount it would have received if there had been no withholding. Customer shall deliver any certifications and other documents required to demonstrate eligibility and to benefit from any exemption or other relief from any Tax.
3. PACKAGING, SHIPPING
3.1. Supplier shall pack all Products in accordance with its standard commercial practices. If Customer has any special shipping or handling requirements, Customer shall notify Supplier in a timely manner regarding any such special requirements, and Customer shall be responsible for any increase in cost to pack the Purchase Order.
3.2. The Price does not include any shipping or handling charges, and Customer shall incur both the cost and the risk for bringing the Products to their final destination. In the event Customer would like for Supplier to deliver the articles to a specified destination, the destination shall be clearly identified in the Purchase Order and Customer shall provide an account number that Supplier can use for the shipping costs.
3.3. In the absence of specific instructions, Supplier shall select the carrier and, at its discretion, may ship “collect”, prepaid or subject to invoice payment terms, but shall not be deemed to have assumed any liability in connection with the shipment, nor shall the carrier be construed as an agent of Supplier.
4. DELIVERY, TITLE, AND RISK OF LOSS
4.1. Supplier’s quoted delivery schedule represents its best estimate and is based on current schedules and workload. Supplier shall have no liability for delay or any damages or losses sustained by Customer as a result of such estimate not being met. Partial deliveries shall be permitted.
4.2. Unless otherwise agreed to by Supplier in writing, delivery shall be deemed to have occurred
4.3. Title and liability for loss or damage to the Products shall transfer from Supplier to Customer upon shipment of the Products of EXW origin.
Customer shall pay for all Products delivered or date services performed within 30 days from the date of Supplier’s invoice or other payment terms as agreed in writing. Payment shall be deemed to have been made when payment is received by an electronic transfer only in Supplier’s bank account. No checks /cheques are accepted Supplier reserves the right to assess interest on any late payments from the date due until receipt of payment in full at the lesser of (a) one and one-half percent per month compounded monthly, or (b) the maximum rate permitted by law, and to charge Customer for any collection or litigation expenses, including reasonable attorney’s fees incurred by Supplier in the collection of late payment. In addition to any remedies under law, Supplier may at its sole discretion suspend future deliveries or services until all delinquent payments due are received. Supplier may require an advance payment or milestone payments prior to beginning performance of the Purchase Order. Supplier may require Customer to obtain a letter of credit for international orders. All payments hereunder shall be paid in full without any deductions for bank transaction fees, set-off, or counterclaims including for any Taxes.
6. FORCE MAJEURE AND EXCUSABLE DELAY
6.1. Supplier shall not be liable for any damages of any kind for delayed or non-performance if such delayed or non-performance is due directly or indirectly to:
(a) Customer, including omissions or failure to act on the part of Customer or its agents or employees;
(b) An Event of Force Majeure, defined herein as including acts of God, acts of public enemies, fires, floods or unusually severe weather conditions, strikes, lockouts, disputes with workmen or other hostilities, embargoes, wars, riots or civil disturbances, epidemics, pandemics or quarantine restrictions, delays or shortages of transportation, governmental action including the government’s denial or failure to grant an export license or other needed government authorization;(c) Causes beyond Supplier’s reasonable control, including severe accidents at Supplier’s plant, unforeseen production or engineering delays or inability of Supplier or its vendors to secure adequate materials, manufacturing facilities or labour, or any other acts and causes not within the control of Supplier, which by the exercise of due diligence and reasonable effort, Supplier would not have been able to foresee, avoid or overcome.
6.2. Supplier shall notify Customer of any delayed or non-performance due to an excusable delay or Event of Force Majeure as soon as practicable. If such event should occur, Supplier’s period of performance shall be extended for a period of time equal to the duration of such event. If the excusable delay or Event of Force Majeure extends more than six months, Supplier and Customer may mutually agree to terminate the Purchase Order or any portion thereof impacted by the excusable delay or Event of Force Majeure, and Customer shall promptly pay Supplier for any delivered Products or services performed, any works in process, any termination costs, including vendor settlement expenses, and a reasonable profit on the terminated Purchase Order or portion thereof that Supplier and Customer agreed to terminate.
7 . WARRANTY
7.1. Supplier does not warrant that the operation of the Products will be uninterrupted or error free. Supplier is not responsible for defects arising from to an Event of Force Majeure, wear and tear, or to defects arising from or connected with Customer’s or any third party’s
(a) Improper receipt, transport handling, storage, testing, installation or inadequate maintenance of the Product by Customer
(b) Customer or third party software, interfacing of supplies;
(c) Unauthorised alterations, modifications
(d) Improper use of operation outside specifications for the Product
(e) Improper site preparation, or unauthorised maintenance, overhaul, repair, neglect, or foreign object damage of the Productor
(f) Customer failing to comply with its obligations.
Subject to the next paragraph, any condition or warranty which could otherwise be implied in this agreement is hereby excluded.
7.2. Where legislation implies in this agreement any condition or warranty which cannot be excluded, restricted or modified, then that condition or warranty is included in this agreement. However, to the extent permitted by law, Sentient’s liability for any breach of such condition or warranty is limited, at Sentient’s option, to one or more of the following:
(a) The repair or replacement of the non-conforming Product or the supply of equivalent Product, or any part thereof, EXW origin.
(b) The payment of the cost of replacing the Product or of acquiring equivalent Products; or
(c) The payment of the cost of having the Product repaired.
7.3. To the extent permitted by law:
(a) Sentient will not be liable for any lost (actual or potential) profits, revenue, savings, opportunities or goodwill; any loss of data or software restoration damages to procure substitute goods or services; or any special, incidental or consequential damages, whether based in contract ( tort) including negligence), equity, stature, or any other legal theory, arising out of any use of the Product or any performance under this agreement and
(b) To the extent Sentient is liable to Customer, whether based in contract ( tort) including negligence), equity, stature, or any other legal theory, that liability is limited in aggregate to the amount of the License fee paid by Customer.
7.4. Supplier shall have no obligation to Customer for any failure, to the extent that it is aggravated by such continued use. The Warranty does not apply to consumable items. Customer shall provide prompt written notice of the Product’s failure within the Warranty period, and ensure the failed Product is properly packed and returned to Supplier, transportation and insurance prepaid.
8. PROPRIETARY INFORMATION
For the term of Customer’s Purchase Order, Supplier and Customer, to the extent of their right to do so, may exchange proprietary and/or confidential information not generally known to the public (“Proprietary Information”), only to the extent and as reasonably required to perform its obligation hereunder. Any document marked “Confidential” or “Proprietary” and all copies made of any such document shall be returned by the receiving party (“Recipient”) of Proprietary Information to the disclosing party (“Owner”) upon completion of the purpose for which they were provided, or destroyed by Recipient at Owner’s direction. Neither Supplier nor Customer shall be liable for any disclosure if the data: (a) is generally available to the public (or becomes so) without breach of by Recipient; (b) was available to Recipient on a non-confidential basis from a source that had the right to disclose such information; (c) was rightfully in the possession of Recipient prior to receipt from Owner; or (d) was independently developed without use of Owner’s Confidential Information. No license to a party, under any trademark, patent, copyright, mask protection right or any other intellectual property right, is either granted or implied by the conveying of Proprietary Information to such party. No use of any Supplier trademark, service mark, trade name, design, logo or other trade dress may be made without the prior written consent of Supplier. Any Supplier mark or logo existing on the Product must not be altered or modified in any manner, combined with other elements, or rearranged without the prior written consent of Supplier. None of the Proprietary Information which may be disclosed or exchanged by Owner shall constitute any representation, warranty, assurance, guarantee or inducement to Recipient of any kind and, in particular, regarding the non-infringement of trademarks, patents, copyrights or any intellectual property rights, or other rights of third persons other than the rights expressly granted herein. Customer agrees that it will not attempt, nor will it direct or employ others to attempt, to reverse engineer the Product, subassemblies and/or software that is developed, manufactured or sold by Supplier. The ownership in all Proprietary Information disclosed Owner to the other pursuant to the Purchase Order shall remain with Owner unless otherwise stated in the Purchase Order. The confidentiality obligations herein shall survive for a period of five years after expiration of the Purchase Order.
9. INTELLECTUAL PROPERTY RIGHTS
9.1. The Product is owned by, and the copyright is vested in Sentient, the Supplier. Supplier grants to Customer a nonexclusive, nontransferable, revocable license to use a copy of any software program embedded in the Product, in object code only, for use as part of the Product (“License”). The License confers no title or ownership and is not a sale of any rights of the Product, its documentation, or the media on which they are recorded or printed. Customer must retain all copyright notices in or on the original Product. Notwithstanding the foregoing, this License is subject to the following prohibitions: (a) Customer shall not attempt to, and will not permit others to decompile, reverse engineer, or disassemble the object code, or in any other way convert the object code into a human-readable form, unless (and only to the extent) the Customer has other rights under statute which cannot be excluded, restricted or modified; (b) Customer shall not manufacture, sell, deliver or in any way provide any products containing the object code; (c) Customer shall not use the object code to create derivative or competing products of any kind; or (d) Customer shall not transfer the object code to a third party for any reason without prior written consent of Supplier, which may be withhold at Supplier’s sole and reasonable discretion, and only then subject to Customer executing a sub-license agreement with the same terms and conditions herein and providing Supplier the sub-license agreement executed by the transferee. Any transfer must be in full compliance with Australian Export Laws and may require additional export licenses or other authorizations to be obtained by Customer and/or Supplier. Other than the License, Supplier is not granting any other rights to its intellectual property, patents, trademarks, software, or proprietary data, other than the right of Customer to use the Product for its intended purposes. Sentient, or if applicable, Supplier’s vendors may protect their rights in the Product in the event of infringement. Sentient’s vendors are direct and intended beneficiaries of this License and may enforce it directly against Customer.
9.2. Customer may only make a copy or adaptation of the Product for archival purposes or when copying or adaptation is an essential step in the authorised Use of the Product on a backup product, provided that copy and adaptation is used in no other manner and provided further that Use on the backup product is discontinued when the original or replacement product becomes operable. Customer must reproduce all copyright notice in the Product on all copies and adaptations. Customer may not copy the Product onto any public or distributed network.
9.3. The License does not include any right to updates, upgrades or other enhancements. However, Sentient may provide (or make available for a fee) such updates, upgrades and enhancements it deems appropriate if Customer has a current support agreement with Sentient.
9.4. Customer ID, Product or module codes, upgrade codes, customer security codes and the like are “Security Codes”. Dongles or other security devices accompanying the Products are “Security Devices”. All Security Codes and Security Devices are the property of, and are confidential to, Sentient (or if applicable its third party vendors). Customer may only use Security Codes and Security Devices allotted to Customer. Customer must not disclose Security Code(s) to anyone without the written consent of Sentient, and then only in accordance with that permission. Customer must not tamper or interfere in any way with any Security Devices. Customer must keep all Security Codes and Security Devices in a secure place and prevent unauthorised use and disclosure.
9.5. Sentient may terminate Customer’s License upon notice for breach of, or failure to comply with, any applicable License terms of any agreement or if Customer becomes insolvent, stops payment of, or is unable to pay, its debts when due. Immediately upon termination, Customer must stop using the Sentient Product and must return to Sentient or destroy the Product and all copies of it.
9.6.Supplier has no indemnity obligation for any claim based upon any of the following: (a) Supplier’s compliance with Customer’s design, specifications or design instructions; (b) alterations by Customer or by third parties of the Product furnished by Supplier not approved in writing by Supplier; (c) failure of Customer to use updated Product provided by Supplier to avoid infringement; (d) use of Product in a manner, or for a purpose, for which was neither designed nor foreseeable by the Supplier; (e) assembly, function or use of Product in combination with any materials and/or software not supplied by Supplier; (f) a patent, trademark or copyright in which Customer or affiliate has a direct or indirect interest by license or otherwise, or (g) Open source software. Customer shall defend and indemnify Supplier from and against any third party claim arising from any of the aforementioned circumstances.
9.7. THIS ARTICLE SETS FORTH SUPPLIER’S ENTIRE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. The indemnities are conditional on Customer giving Supplier prompt written notice of any claims being made against Customer, Customer not making any admission which might be prejudicial to the defense of such claim, Supplier having full and sole authority at Supplier’s own expense to assume the defense of the claim, and Customer providing reasonable assistance for defense of any claim.
10. EXPORT COMPLIANCE
The Products, including any associated technology, are controlled under the Export Laws and Regulations of the Australian Government.
11. GOVERNING LAW
These Terms and Conditions and any action related hereto shall be governed, controlled, interpreted and defined by and under the laws of the State of Victoria, Australia, without regard to the conflict of laws provisions thereof.
In the event of any dispute arising out of or in connection with these Terms and Conditions, such dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration. The place of arbitration shall be Victoria, Australia. The language of the arbitration shall be English. The arbitral award shall be final and binding upon the Parties.
13. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, AND REGARDLESS OF THE NUMBER OF CLAIMS OR THE FORM OR CAUSE OF ACTION, WHETHER IN CONTRACT, EQUITY, STATUTE, TORT, NEGLIGENCE (ACTIVE OR PASSIVE) OR OTHERWISE, SUPPLIER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQEUENTIAL DAMAGES OF ANY KIND, AND SHALL NOT BE LIABLE TO CUSTOMER FOR LOSSES OF USE, DATA, PROFIT, REVENUE, INCOME, BUSINESS, ANTICIPATED SAVINGS, REPUTATION, AND MORE GENERALLY, ANY LOSSES OF AN ECONOMIC OR FINANCIAL NATURE, REGARDLESS OF WHETHER SUCH LOSSES MAY BE DEEMED AS CONSEQUENTIAL OR ARISING DIRECTLY AND NATURALLY FROM THE INCIDENT GIVING RISE TO THE CLAIM, AND REGARDLESS OF WHETHER SUCH LOSSES ARE FORESEEABLE OR WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES. EXCLUDING GROSS NEGLIGENCE OR WILLFULL MISCONDUCT, SUPPLIER’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH A PURCHASE ORDER SHALL IN NO EVENT EXCEED ACTUAL, DIRECT, AND PROVEN DAMAGES OF THE PRICE OF THE PRODUCT DIRECTLY PURCHASER BY CUSTOMER UNDER THE PURCHASE ORDER GIVING RISE TO THE CLAIM. THIS LIMITATION OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY. TO THE EXTENT THESE TERMS AND CONDITIONS CONTAIN ANY SPECIFIC REMEDIES PROVIDED BY SUPPLIER TO CUSTOMER, REGARDLESS OF FORM, SUCH REMEDIES SHALL BE PROVIDED BY SUPPLIER ON A SOLE AND EXCLUSIVE BASIS AND IN LIEU OF ANY OTHER REMEDIES, DAMAGES, OR LOSSES.
Supplier and Customer shall each carry insurance coverage in types and amounts adequate to protect against any losses, damages, liabilities or expenses that may reasonable be expected to be incurred under a Purchase Order, and both shall keep such insurance coverage in effect until the conclusion of the Purchase Order.
Any modification of these Terms and Conditions shall be valid only if it is in writing and signed by the authorized representatives of both Supplier and Customer.
Neither Party may assign or delegate a Purchase Order or any of its rights, duties or obligations regarding a Purchase Order to any other party without the prior written consent of the other party. Any attempt by either party to assign or delegate any of its rights, duties or obligations regarding a Purchase Order without such consent shall be void and of no effect. Notwithstanding the foregoing, Supplier shall be permitted to subcontract its rights, duties or obligations regarding a Purchase Order to another division, affiliate or wholly-owned subsidiary of Supplier and shall have the right to assign a Purchase Order to any successor by way of merger or consolidation or the acquisition of substantially all of the entire assets of Supplier relating to the subject matter of the Purchase Order; provided, however, that such successor shall assume all of the obligations of Supplier under the Purchase Order. Nothing in this provision is intended to preclude Supplier from awarding routine subcontracts or purchase orders to vendors or other suppliers.
Notwithstanding anything set forth herein to the contrary, Customer shall not be allowed or have the right to audit or examine Supplier’s books and records.
18. NO THIRD PARTY BENEFICIARIES
as expressly provided herein, these Terms and Conditions are for the sole and exclusive benefit of the Parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.
If either party, at its option, agrees to waive any of these Terms and Conditions, then such waiver shall not for any purpose be construed as a waiver of any succeeding breach of the same or of any other of these Terms and Conditions; nor shall such a waiver be deemed as a course of conduct.
If any of these Terms and Conditions are at any time held to be invalid or unenforceable, then such term or condition shall be construed as severable and shall not in any way render invalid or unenforceable the remainder of these Terms and Conditions, which shall remain in full force and effect.
21. PUBLIC DISCLOSURE
Except as required to obtain necessary licenses or governmental approvals, neither party shall issue any news releases, artic les, brochures, advertisements, or other information releases relating to the subject matter of a Purchase Order, except as otherwise required by law, without the prior written approval of the other party.
Sentient reserves the right, at Sentient’s sole discretion, to modify or replace these Terms & Conditions at any time. If a revision is material, Sentient will make reasonable efforts to provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at Sentient’s sole discretion.