1. Applicable Term: These terms and conditions govern the purchase and sale of the products, equipment and services ("Product") referred to in Clariance’s purchase order, quotation, proposal or acknowledgment, as the case may be ("Clariance’s Documentation"). Whether these terms and conditions are included in an offer or an acceptance by Clariance, such offer or acceptance is conditional on
Buyer’s consent to these terms and conditions. Clariance rejects all additional or different terms in any of Buyer’s purchase order or documents.
2. Quotation: All quotations by Clariance are subject to change or withdrawal without prior notice to Buyer, unless specifically stated in the quotation. Quotations are made subject to the approval by Clariance of Buyer’s credit. All sales contracts and orders only become effective when approved and accepted in writing by Clariance as set out in Clariance’s Documentation .
3. Payment: Buyer shall pay Clariance the full purchase price as set out in Clariance’s Documentation , or where no price has been quoted (or a quoted price is no longer valid), the price listed in Clariance’s price list current at the date of acceptance of the Buyer’s purchase order. Unless Clariance’s Documentation provides otherwise, freight, storage, insurance and all taxes, duties or other
governmental charges relating to the Product shall be paid by Buyer. If Clariance is required to pay any such charges, Buyer shall immediately reimburse Clariance.
All payments are due within 30 days of the date of invoice. If Buyer fails to make payment on or before the due date then, without prejudice to any other right or remedy available to Clariance, Clariance shall be entitled to (i) apply a monthly interest charge at the lower of 1.5% interest per month or the maximum rate legally permitted according to applicable laws on all amounts not received by the due date (such interest will be calculated and will accrue daily from the date for payment until the date Clariance actually receives
payment) or (ii) cancel the purchase order contract or suspend any further deliveries to the Buyer. Buyer shall pay all of Clariance’s reasonable costs (including lawyers’ fees) incurred in collecting amounts due but unpaid.
4. Delivery: Clariance will use its reasonable endeavors to provide the Products and/or any Services in accordance with the delivery times & terms quoted in Clariance’s Documentation. Where any delay in delivery which is due to no fault of Clariance as mentioned in Para 9 herein, Clariance assumes no liability, including any direct or consequential damage, to the buyer.
All risk and title in a Product and/or Service passes to the Buyer (i) in the case where Clariance has agreed to arrange the delivery of the Product and/or Service, upon delivery of the Product and/or Service by Clariance to the Buyer’s premises and (ii) in any other case, upon the Products, the subject of a Purchase Order, being ready for dispatch or collection by the Buyer from designated premises or port as per Clariance’s documentation or any subsequent notification.
5. Changes: The Buyer may, from time to time, either in writing or by telephone, request Clariance to vary any provision of a Purchase Order. Clariance will use its reasonable endeavors (but is not obliged) to accommodate any such request for variation (but shall not be liable to the Buyer to the extent it is not able to accommodate any such request).
Where Clariance accommodates the Buyer’s request for a variation, and where such variation involves an increase in the cost of Products or Services to be supplied under a purchase order, the Buyer shall within 10 days of its receipt of the relevant Clariance invoice pay to Clariance all additional amounts reasonably incurred and invoiced by Clariance as a result of such variation. Clariance will not entertain any variation which involves a reduction in the cost of the Products or Services to be supplied under a purchase
order.
Clariance may change the manufacturer’s specifications from time to time of any Product to take into account improvements of design and unavailability of materials without obtaining the Buyer’s approval if, in the reasonable opinion of Clariance, the changes (i) improve the Product’s function, operation or use or (ii) do not result in the Product differing in any substantial way from the original specifications of the Product as were relevant at the time the Customer made a Purchase Order. In all other cases, Clariance will obtain the Buyer’s written approval prior to making any changes to Product specifications.
6. Cancellation: If Buyer cancels or suspends its order for any reason other than Clariance’s breach, Buyer shall promptly pay Clariance for work performed prior to cancellation or suspension and any other direct costs incurred by Clariance as a result of such cancellation or suspension. The costs quoted by Clariance shall be final and conclusive unless there is any manifest error.
7. Warranty: Clariance warrants to Buyer that the Products and Services shall materially conform to the description in Clariance’s Documentation and shall be free from defects in material and workmanship. If Buyer gives Clariance prompt written notice of breach of this warranty within 12 months from delivery (the "Warranty Period"), Clarianc e shall, at its sole option and as Buyer’s sole remedy, repair or replace the defective Product or refund the purchase price. If Clariance determines that any claimed breach is not, in fact, covered by this warranty, Buyer shall pay Clariance its then customary charges for any repair or replacement made by Clariance. Clariance’s warranty is conditional on (i) the defective Product being supplied by Clariance under the Clariance’s Documentation, (ii) Buyer has used the defective Product strictly in accordance with Clariance’s instructions, (iii) any defective Product has not been modified, altered or repaired except by Clariance’s, and (iv) the Product’s defect is not due to (a) fair wear and tear or (b) improper use or handling of the Product by Buyer.
8. Ownership of Materials: All devices, designs (including drawings, plans and specifications), estimates, prices, notes, electronic data and other documents or information prepared or disclosed by Clariance, and all related intellectual property rights, shall remain Clariance’s property. Clariance grants Buyer a non-exclusive, non-transferable license to use any such material solely for Buyer’s use of the Product. Buyer shall not disclose any such material to third parties without Clariance’s prior written consent.
9. Force Majeure: Under no circumstances shall either Clariance or Buyer have any liability for any breach (except for breach of payment obligations) caused by extreme weather or other act of God, strike or other labor shortage or disturbance, fire, accident, war or civil disturbance, delay of carriers, failure of normal sources of supply, act of government or any other cause beyond such party's reasonable control.
10. LIMITATION OF LIABILITY: IN THE UNLIKELY EVENT OF ANY DAMAGES, DIRECT OR CONSEQUENTIAL (WHETHER FOR LOSS OF PROFIT OR OTHERWISE), COSTS, EXPENSES OR OTHER CLAIMS FOR COMPENSATION PROVEN TO BE CAUSED BY THE NEGLIGENCE OF CLARIANCE, CLARIANCE’S TOTAL LIABILITY SHALL BE LIMITED TO AND SHALL NOT EXCEED THE PURCHASE ORDER VALUE FOR THE PRODUCT(S) AND/OR SERVICE(S) OR AUD 10,000.00 (AUSTRALIAN DOLLAR TEN THOUSAND ONLY) WHICHEVER IS LOWER. THESE LIMITATIONS APPLY WHETHER THE LIABILITY IS BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER CONTRACT TERM.
11. Set-off: The Buyer may not seek to effect or effect any set-off against any liabilities due by Clariance to the Buyer against any liabilities due or which may fall due by the Buyer to Clariance, and vice versa.
12. Confidentiality: If Clariance discloses to Buyer any research, development, technical, economic, or other business information of “know-how” which is personal to Clariance or is not common knowledge among competitors to whom it may be useful and which may give Clariance an advantage over its existing and prospective competitors, whether reduced to writing or not, the Buyer will not use or disclose any such information to any other person or company at any time, without Clariance’s prior written consent. In the event that t he Buyer and Clariance have entered into a separate Confidentiality Agreement, the terms and conditions of such agreement shall take precedence over the terms of this paragraph.
13. Miscellaneous: These terms, together with any quotation, purchase order or acknowledgement issued or signed by Clariance and Buyer, comprise the complete and exclusive statement of the agreement between the parties (“Agreement”) and supersede any terms contained in Buyer’s documents, unless separately signed by Clarianc e and Buyer. No part of these terms and conditions may be changed or cancelled except by a written document signed by Clarianc e and Buyer. No course of dealing or performance, usage of trade or failure to enforce any term shall be used to modify these terms and conditions. If any of these terms are unenforceable,
such term shall be limited only to the extent necessary to make it enforceable, and all other terms shall remain in full force and effect. These terms and conditions and the contract between Clariance and the Buyer shall be governed by the relevant local laws and any dispute arising from or in connection with this Agreement shall be submitted to the relevant Arbitration Centers of the relevant country which shall be conducted in English. The arbitration award shall be final and binding on both parties.