TERMS AND CONDITIONS OF SALE

FOR AERIS ENVIRONMENTAL LTD.

1. EXCLUSION OF BUYER’S TERMS

1.1 It is expressly acknowledged and agreed that these terms operate to the exclusion of all and any terms and conditions issued by the Buyer whether before or after the date these conditions of sale come into effect.

 

2. ORDERS AND PERFORMANCE

2.1 Aeris may accept or refuse any order for goods in its absolute discretion and may make its acceptance of an order conditional upon a satisfactory credit assessment of the Buyer.

2.2 Unless otherwise agreed orders must be in writing and either mailed, couriered, faxed or transmitted by EDI (if available) to Aeris. Orders must be made in multiples of standard pack quantities (where available) or meet the Minimum Order Quantities.

2.3 Aeris will use reasonable endeavors to fulfil accepted orders and comply with any requested or estimated date for delivery, but time will not be of the essence in this regard and if Aeris’ ability to fulfil an accepted order is affected by circumstances or events beyond its control Aeris may:

(a) extend the date for delivery.

(b) with the Buyer’s approval, alter the specifications for the goods to allow the substitution of equivalent goods; or

(c) cancel the order without liability for breach.

 

2.4 Aeris may perform any of the obligations undertaken by it and exercise any rights granted to it under the Contract through any other company which at the relevant time is its holding company or subsidiary or the subsidiary of any such holding company and any act of any such company will for the purposes of the Contract be deemed to be the act of Aeris.

 

2.5 Aeris’ policy is one of constant improvement and therefore changes of specifications and performance data may be made by Aeris without notice and without incurring liability to the Buyer.

 

3. QUALITY

3.1 Subject to these terms Aeris warrants to the Buyer that all goods manufactured or supplied by Aeris will be free from defects due to faulty factory materials or workmanship and will comply with any specification for them published by Aeris or agreed in writing.

 

4. PRICE

4.1 Prices charged for goods will be according to a Current Quotation for those goods. Otherwise, they will be determined by Aeris by reference to its standard prices in effect at the date of Delivery (whether notified to the Buyer or not and regardless of any prices contained in the order). Aeris will use its best endeavors to notify the Buyer of price changes but bears no liability in this regard.

4.2 Unless specifically indicated, prices in quotations or elsewhere do not include insurance, special packing, delivery, or tax.

4.3 Any reference to resale prices contained in Aeris’ standard price lists or other documents (if any) are recommended resale prices only and there is no obligation on the Buyer to comply with these recommendations.

4.4 Prices shown in Aeris’ price list are exclusive of goods and services taxes, sales taxes and other indirect taxes unless otherwise stated and such taxes, where applicable, will be charged in accordance with current legislation.

 

5. DELIVERY AND PACKING

5.1 Unless otherwise agreed, goods sold to the Buyer shall be supplied ex Aeris’ premises.

5.2 Unless otherwise indicated or agreed, prices include standard packing by Aeris and any special packing will be to the Buyer’s account.

5.3 If packing is charged for and is returnable allowance will only be made for packing which has been received back by Aeris in good condition. Ownership of pallets used for Delivery remains with Aeris at all times and the Buyer agrees to pay Aeris for any pallets not returned in good order and condition to Aeris within 14 days of Delivery of the goods.

 

6. PAYMENT

6.1 Terms of payment by the Buyer after passing Aeris credit requirements will be thirty (30) from invoice date, or otherwise as agreed in writing.

6.2 Aeris will provide an invoice to the Buyer who will pay the invoice in full to Aeris within the time specified above.

6.3 All payments to Aeris will be made without set-off, deduction or counterclaim.

6.4 If the Buyer fails to pay the invoice in full to Aeris when due, Aeris will be entitled (without prejudice to any other right or remedy it may have) to:

(a) cancel or suspend any further delivery to the Buyer under any order; and

(b) charge the Buyer interest on the overdue amount at the rate that would be payable by Aeris to its bankers for overdraft accommodation from the date of invoice to the date of full and final payment (irrespective of whether the date of payment is before or after any judgment or award in respect of the overdue amount).

 

7. CLAIMS

7.1 Any claim by the Buyer for incorrect orders, shortages, overcharges and the like will only be recognized by Aeris if made in writing and forwarded within 14 days from the date of receipt of the goods.

7.2 Any claims by the Buyer for goods lost or damaged in transit following Delivery should be made to the relevant carrier or transport authority and unless otherwise agreed Aeris is not responsible for such loss or damage.

7.3 Return of goods to Aeris by the Buyer may only be made if Aeris has agreed to that return and all such returns will be subject to a 15% handling charge with freight costs and risk remaining the responsibility of the Buyer, subject always to clause 8

 

8. INSURANCE, RISK AND PROPERTY

8.1 Unless otherwise agreed, goods are not insured by Aeris.

8.2 The risk of damage, loss or deterioration to any goods will pass to the Buyer either on Delivery or on the expiry of 14 days from the date of notification by Aeris to the Buyer that the goods are ready for collection.

8.3 Notwithstanding that risk in the goods may pass to the Buyer, property in and title to the goods will not pass to the Buyer until those goods and all other amounts owed to Aeris by the Buyer (regardless of any credit period) have been paid for in full and until then:

(a) the Buyer will hold the goods as a fiduciary bailee of Aeris;

(b) the goods must be stored separately and in a manner enabling them to be identified and cross-referenced to particular invoices and the Buyer acknowledges that if it should mix the goods with other products or items such that the goods are no longer separately identifiable then the Buyer and Aeris will be owners in common of the new product;

(c) the Buyer may sell the goods in the ordinary course of its business as agent for Aeris and will hold the proceeds of sale in a separate account and account to Aeris for those proceeds; and

(d) Aeris may require the Buyer to return the goods to it on demand and may enter upon the premises of the Buyer to inspect or repossess the relevant goods.

8.4 The Buyer shall insure the goods with a reputable insurance company, against theft or any damage until their price has been paid or until sale – whichever first occurs- and Aeris will be entitled to request of a Certificate of Insurance evidencing such coverage.

8.5 The Buyer is also required to have Product and Public Liability Insurance with a coverage of at least $5 Million. Aeris will be entitled to request a Certificate of Insurance evidencing such coverage. If the Buyer does not insure the goods or fails to supply details of its insurance policies, the Buyer will reimburse Aeris for the cost of any insurance which Aeris may reasonably arrange in respect of goods supplied to the Buyer.

 

9. WARRANTIES

9.1 The warranty in clause 3.1 does not apply in respect of defects specifically drawn to the Buyer’s attention or defects arising from: inappropriate application of products outside of the Instructions for Use, incorrect or negligent handling; disregard of operating and/or maintenance instructions; overloading or unsuitable operating conditions; defective civil or building work; lightning, accident; neglect, faulty erection or installation (unless carried out by Aeris); unauthorized repairs or alterations; acts of God or other causes beyond Aeris’ control.

9.2 Aeris’ liability under clause 3.1 is limited (at Aeris’ option) to replacement or repair or payment of the cost of replacement or repair of the relevant goods or repayment of the price where it has been paid. Any claim in respect of a breach of the warranty in clause 3.1 should be made within 12 months of the date of Delivery of the relevant goods.

9.3 Aeris’ liability to the Buyer for breach of any implied term not excluded by clause 11.1(c) will be limited (at Aeris’ option) to replacement or repair or payment of the cost of replacement or repair of the relevant goods or repayment of the price where it has been paid.

9.4 To the fullest extent permitted by law Aeris will not be liable to the Buyer for loss of profit or other economic loss; direct, indirect or consequential loss; special, general or other damages; or other expenses or costs arising out of any breach of the Contract or any common law duty (including negligence) by Aeris, its agents or employees.

 

10. LIMITATION OF LIABILITY

10.1 Financial Liability

The following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:

a) Any breach of these conditions;

b) Any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and

c) Any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

10.2 Exclusions

All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

10.3 Limited Liability

Nothing in these conditions excludes or limits the liability of the Company to the extent that it would be illegal for the Company to exclude or attempt to exclude its liability; or

10.4 Total Liability

Subject to condition 9.2 and 9.3:

a) The Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract will be limited to the Contract price; and

b) The Company will not be liable to the Buyer for any loss of profit, loss of business, or depletion of good will in each case whether direct, indirect or consequential, or any claims for consequential compensation or loss whatsoever and howsoever caused which arise out of or in connection with the Contract.

10.5 Indemnity

The Buyer shall be responsible for and shall save, indemnify, defend and hold harmless the Company from and against any claims and losses in respect of;

a) Loss or damage to any property, whether owned by the Buyer, the Company or a third party; and

b) Personal injury or death of any person, arising from or in connection with the use of Goods.

11. DISPUTE

11.1 Scope

In the event of any dispute, disagreement or controversy regarding a Contract, these terms and conditions or their subject matter (Dispute) must be referred to determination under this condition

11.2 Independent Expert

The Independent Expert will be, if agreement is not reached within five days of either party giving notice to the other that it wishes to refer a matter to an Independent Expert, such persons as is appoint by the NSW Law Society at the request of either party.

11.3 Procedure

a) The parties are entitled to make submissions to the Independent Expert in writing and will provide (or procure that others provide) the Independent Expert with all such assistance and documents as the Independent Expert may reasonably require for the purpose of reaching a decision. Each part shall supply each other with all information and give each other access to all documentation and personnel as the other party reasonably requires to make a submission under this condition.

b) The Independent Expert will act as an expert and not as an arbitrator. The Independent Expert’s decision shall be final and binding on the parties in the absence of fraud or manifest error.

c) The Independent Expert’s fees and any costs properly incurred by him in arriving at his determination shall be borne by the parties in equal shares or in such proportions as the Independent Expert directs.

11.4 Non suspension

This condition does not suspend or delay a party’s obligations under these terms and conditions.

 

12. Termination

The Company is entitled to terminate a Contract with immediate effect by giving written notice to the Buyer if:

a) The Buyer fails to pay any undisputed amount due under these terms and conditions on the due date for payment and remains in default not less than 5 days after being notified in writing to made such payment; or

b) The Buyer commits a material breach of its obligations under these terms and conditions and fails to remedy that breach within a period of 10 days after receipt of notice in writing requiring it to do so; or

c) The Buyer suspends payment of its debts, or is deemed to be insolvent, admits inability to pay its debts, enters into any arrangement with its creditors, an order is made or resolution passed or proceedings are taken for the winding-up, administration or dissolution of the Buyer, any liquidator, trustee in bankruptcy, receiver, administrative receiver, administrator is appointed in respect of the Buyer or any part of its business.

d) There is a change of control of the Buyer (control is defined in the Corporations Act 2001 (C’th)).

12.1 Obligations on termination

On termination of these terms and conditions the Buy will promptly:

a) Return to the Company all property belonging to the Company;

b) Return to the Company all Confidential documents and materials belonging to the Company

c) Erase all the Company’s Confidential Information from its computer systems and on request, certify in writing to the Company that it has complied with the requirements of this condition.

 

13. Force Majeure

The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions (domestically and international), war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, industrial action, provided that, if the event in question continues for a continuous period in excess of 90 days, the Buyer will be entitled to give notice in writing to the Company to terminate the Contract.

 

 

14. OTHER ITEMS

14.1 The sale to and purchase by the Buyer of any goods does not confer on the Buyer any license or right under any copyright, patent, registered design, or trademark which is the property of Aeris and the Buyer will conform to all reasonable requirements imposed by Aeris with respect to trademarks, or identification marks in respect of the goods.

14.2 Aeris will be entitled to set off against any monies owing to the Buyer amounts owed to Aeris by the buyer under the Contract or on any other account.

 

15. MISCELLANEOUS

15.1 Each party acknowledges and agrees that:

(a) the Contract represents the entire agreement between the parties and supersedes all previous agreements.

(b) it has not entered into the Contract in reliance on, or as a result of any statement or conduct of any kind (including without limitation, any representation, warranty, advice or undertaking).

(c) all conditions, warranties or other terms implied by statute or common law are expressly excluded to the fullest extent permitted by law; and

(d) the Contract may only be amended by agreement in writing.

15.2 Nothing in these Conditions of Sale shall entitle the Buyer to any priority of supply of goods as against Aeris’ other distributors, agents and customers.

 

16. DEFINITIONS AND INTERPRETATION

16.1 In these Conditions of Sale, the following terms have the following meanings unless the context requires otherwise:

16.2 Aeris means Aeris Environmental Ltd.

16.3 Buyer’ means a person from whom Aeris accepts an order for goods.

16.4 ‘Contract’ means the agreement constituted by Aeris’ acceptance of the Buyer’s order and includes these Conditions of Sale.

16.5 ‘Current Quotation’ means a quotation no older than 28 days at the time the order is received by Aeris.

16.6 ‘Delivery’ means delivery of any goods to the Buyer or to a carrier arranged by the Buyer or Aeris (at the request of the Buyer).

16.7 Tax’ means any tax, levy, charge or duty imposed by any governmental entity or authority (including, without limitation, sales tax and customs duty) on or in relation to goods sold to the Buyer (excluding taxes on Aeris’ income and capital gains).

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