.TERMS AND CONDITIONS OF SALE OF ATOMICON PTY LTD

IT’S SUBSIDIARIES AND RELATED COMPANIES                

ATOMICON In these terms and conditions unless the context otherwise requires:“the Company” means Atomicon Pty Ltd and or any of its subsidiary or related companies and assigns.“the Buyer” means a person, company or other entity to whom the Company supplies goods and services.“delivery” means collection of the goods from the Company’s premises by or on behalf of the Buyer.“Ex Works” means that the Company’s only obligation is to make the goods available to the Buyer at the Company’s usual point of delivery of such goods for loading on the conveyors to be provided by the Buyer. The Buyer shall bear the full cost and risk involved in bringing the goods from the Company’s works or factory to the Buyers desired destination.“indent order” means an order placed with the Company by the Buyer whereby the Company, in order to satisfy that order, is required to specifically purchase goods or services from a third party because such goods or services are not usually stocked or provided by the Company.“standard products” means the products usually stocked by the Company.“sales contract” means the contract made between the Company and the Buyer for the supply of goods or services.“goods” means all goods supplied by the Company to the Buyer.“services” means all services supplied by the Company to the Buyer.“Return Authorization” means the document approved and issued from time to time by the Company authorising the return of goods by the Buyer to the Company in accordance with the terms and conditions contained in thereon.

GENERAL  These terms and conditions are deemed to be incorporated into all quotations and sales contracts (express or implied) for the supply of goods and services to the Buyer and supersede all terms and conditions previously issued by the Company. No sales contract for the supply of goods or provision of services shall exist between the Company and the Buyer except upon these terms and conditions unless their exclusion or modification is agreed to in writing by the Company. If there is a conflict between these Terms and Conditions of Sale and the provision of any other agreement between the Company and the Buyer in respect of the supply of Goods or the provision of Services then these Terms and Conditions of Sale will prevail. Any order placed by a Buyer is deemed to be an order incorporating these terms and conditions notwithstanding any inconsistencies in the Buyer’s order. Each order by the Buyer is subject to acceptance or rejection by the Company and is not binding on the Company prior to the Company’s acceptance of it. The Company may refuse to proceed with any sales contract at any time if the Buyer’s credit is or becomes unsatisfactory to the Company.

TERMS OF PAYMENT The terms of payment are cash on delivery unless otherwise expressly agreed in writing by the Company. In the event that the Company agrees in writing to payment other than cash on delivery the Company reserves the right to charge interest on overdue amounts owing to it without prior notice to the Buyer at a rate as prescribed from time to time under the Penalty Interest Rates Act and such interest is computed from the date a payment becomes overdue until payment of such monies is received in full. All payments must be made in full without any set off other deductions or withholdings. The Company reserves the right to set a minimum invoice value from time to time at its discretion and reserves the right to withhold at any time supply to the Buyer of further goods or the provision of services in the event the Buyer fails to comply with the Company’s terms of payment or for any other reason. Any account over 30 days will be invoiced 2.5% or greater calculated daily until fullo payment is made. Further, in the event that the Company agrees in writing to payment other than cash on delivery and     notwithstanding documentary evidence which might imply otherwise, all payments made by the Buyer in respect of goods supplied by the Company to the Buyer or services provided by the Company by the Buyer shall be applied as follows:

(i) first, in satisfaction or partial satisfaction (as the case may be) of debt outstanding at the earliest chronological time from the Buyer to the Company in respect of the supply of goods or provision of services by the Company to the Buyer; and(ii)  thereafter, chronologically in satisfaction or partial satisfaction (as the case may be) of debts incurred by the Buyer to the Company in respect of goods supplied or services provided.All sums unpaid by the Buyer beyond the agreed period shall immediately become due and payable to the company upon demand and the Buyer will be liable for any costs and fees incurred by the company in pursuing the unpaid sum by legal action or otherwise.

PRICES Unless otherwise agreed by the Company in writing pursuant to quotation the price for goods supplied and services provided shall be the Company’s current price list for such goods or services as at the time of delivery of goods or provision of services. Each new price list will supercede the previous price list. Any quotations given by the Company are subject to written confirmation. All prices and quotations are given Ex Works the Company and are exclusive of any tax, impost, duties or other levies. The costs of freight of goods shall in all circumstances remain the exclusive responsibility of the Buyer. The Company reserves the right at any time between the time of quotation and/or order and the date of delivery of the goods or provision of services to make reasonable adjustments to prices and quotations given where there has occurred fluctuations in the Company’s cost for labour, materials, goods or transport. In the event of fluctuations or changes in exchange rates or duties the Company reserves the right at any time between the time of quotation and/or order and the date of delivery and/or invoicing of the goods or provision of services to increase its selling price for such goods or services.

DELIVERY Dates and times quoted for delivery and/or installation of goods or the provision of services are estimates only and the Company shall not be liable for any loss or damage howsoever arising as a result or consequence of any failure to deliver or install or for delay in delivery or installation or the provision of services arising from any circumstances of whatsoever nature which are outside the Company’s control including but without limiting the generality of the foregoing, fire, flood, explosion, strike, lockout or other industrial act or dispute or the breakdown of or accident to plant unavailability or shortage of raw material labour power supplies or transport facilities or act of God or any order or direction or any local State of Federal Government or governmental authority or instrumentality. The Buyer shall not be relieved of any obligation to accept or pay for goods or services by reason of any delay in delivery despatch or performance. The Company reserves the right to deliver by way of instalments and each instalment shall be deemed to be sold under a separate sales contract. Failure to deliver any instalment shall not entitle the Buyer to rescind or repudiate the sales contract.

CANCELLATION Subject to the prior written approval of the Company the Buyer’s sales contract may be cancelled completely or in part provided that a cancellation fee of up to forty per centum of the value of the cancelled sales contract (with a minimum fee of $1000) shall be payable by the Buyer. Such fee shall become immediately due and payable upon cancellation The Company will not accept the cancellation or alteration of any indent orders or orders to be undertaken by the Company pursuant to the Buyer’s own specifications or requirements.

RETURN OF GOODS The Company is under no obligation to accept goods returned by the Buyer, without limiting the Buyer’s rights at general law or under statute. Goods may not by returned unless the media is physically defective, in which case replacement goods of the identical product will be supplied. All goods supplied to the Buyer by the Company is subject to the terms of the original licence. Subject to the prior written approval of the Company pursuant to a Return Authorization the Buyer may return any goods provided that such goods are returned (with specific identification of the goods so as to correspond with details contained on the Return Authorization) within fourteen days from the date of delivery and the goods are in the same condition as when originally delivered to the Buyer; the Buyer pays to the Company a restocking fee of up to forty per centum of the invoiced value of the goods (with minimum fee of $1000), and all freight charges in respect of the returned goods have been prepaid by the Buyer. The Company will not accept the return of any indent order or orders undertaken by the Company pursuant to the Buyer’s own specifications or instructions.

PACKAGING All prices quoted include standard packaging. Any special packaging shall be charged to the Buyer.

QUANTITIES The Company reserves the right to deliver goods to a quantity or percentage more or less than the exact quantity specified. Such variations in quantities shall not exceed ten percentum (10%) for standard products or ten percentum (10%) for indent orders. Without in any way derogating from the above the Company shall not be liable in any way for failure to deliver the exact number of goods invoiced unless a written claim for any short delivery is received by the Company within forty eight (48) hours from the date of initial delivery.

DEFAULT If the Buyer makes default in any payment, commits any act of bankruptcy or enters into involuntary liquidation or any scheme of arrangement with its creditors the Company may as its option withhold further deliveries or cancel any sales contract for the supply of goods or provision of services without prejudice to its rights there under.

IMPLIED TERMS The Buyer acknowledges that neither the Company nor any person purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in the sales contract whether as to the fitness of the goods for any particular purpose or any other matter The Buyer acknowledges that without relying upon the skill or judgment of the Company or any person purporting to act on its behalf it has determined that goods conforming to the contract description will be fit for its purposes. Any description of the goods used in the sales contract is for identification only and shall not constitute a contract of sale by description. The provisions of this clause shall not apply insofar as their application is prevented by the Trade Practices Act 1974 as amended or any other State and Territory laws. 

WARRANTIES Save expressly provided for in the sales contract all terms, conditions, warranties, undertakings, inducements and representations whether express or implied, statutory or otherwise relating to the provision by the Company of the Goods or Services are excluded and the Company will not incur any other liability in respect of any loss or damage (including consequential loss or damage) however caused ( whether by negligence or otherwise) which may be suffered or incurred or which may arise directly or indirectly in respect of the Goods or Services.

Where any applicable legislation implies any term, condition or warranty into these Terms and Conditions of Sale or the Company’s relationship with the Buyer or otherwise gives the Buyer a particular remedy against the Company and that or any other legislation renders void or prohibits provisions excluding or modifying the application or exercise of or liability under an implied term, condition, warranty or remedy then the implied term, condition, warranty or remedy will be deemed to be included in these terms or sale or as the case may require apply to the relationship between the Company and the Buyer. However, the Company’s liability for any breach of such implied term, condition or warranty or under such remedy will be limited at the Company’s option in any or more ways permitted in that legislation to the replacement of the Goods or the supply of equivalent Goods; the repair of the Goods; the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or the payment of the cost of having the Goods repaired. Subject to the above limitations of warranty if the Goods are not manufactured by the Company the warranty of the manufacturer of the Goods must be accepted by the Buyer and is the only warranty given to the Buyer in respect of the Goods.

The Company shall not be liable for, and the Buyer releases the Company from any claims in respect of faults or defects in operation arising from computer components, peripheral devices or software which have not been purchased from the Company but their presence contribute to faults in, or modifications required to, goods or services supplied by the Company either previously or subsequently. The Company shall be entitled to charge at its discretion fees for services carried out or replacement goods supplied to rectify such faults or carry out such modifications.

Notwithstanding anything else in these Terms and Conditions of Sale, the Company will not be liable to the Buyer for the Company’s failure to comply with its obligations to the Buyer due to any cause beyond the Company’s reasonable control. The Company’s obligations affected by such cause are suspended while the cause continues to hinder or prevent the Company’s performance.

TITLE AND RISK Risk in the goods purchased shall unless otherwise agreed in writing pass to the Buyer upon delivery of the goods to the Buyer or his agent or to a carrier commissioned by the Buyer. Insurance is to be effected by the Buyer. Notwithstanding the foregoing, title in goods supplied by the Company shall pass to the Buyer only upon payment in full of all amounts outstanding from the Buyer to the Company. Until title passes, the Company may at its option, but without limiting any other rights or remedies available to the Company, seize, repossess or resell (or seize, repossess and resell) the goods if the Buyer makes default in any payment, commits any act of bankruptcy or enters into receivership or involuntary liquidation or any scheme of arrangement. The Buyer must keep all goods separate until payment for those goods has been made to the Company and if the Buyer sells those goods prior to such payment being made the Buyer must keep the sale proceeds for those goods separate and hold the proceeds on trust for the Company until the Buyer pays for the relevant goods. If the Buyer defaults in payment for those goods and the Company exercises its right to repossess the goods the Buyer indemnifies the Company in relation to any loss of or damages to those goods.

LIEN In addition to any lien to which the Company may by statute or otherwise be entitled, the Company shall, in the event of the Buyer failing to pay any outstanding account by the Buyer to the Company or the Buyer entering into any scheme of arrangement with its creditors or going into receivership or liquidation (save for the purpose of reconstruction), be entitled to a general lien on all property or goods belonging to the Buyer in the Company’s possession (although such goods or some of them have been paid for) for the unpaid price of any other goods sold and delivered to the Buyer under this or any other contract.

WAIVER A failure, delay, relaxation or indulgence by the Company in exercising any power or right conferred on the Company by these Terms and Conditions of Sale does not operate as a waiver of the power or right. A single of partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under these Terms and Conditions of Sale. A waiver of a breach does not operate as a waiver of any other breach.

LICENCES AND PERMITS All goods are sold and services performed by the Company on the understanding that all licences and permits under all relevant statutes, ordinances, rules and regulations have been obtained by the Buyer, the Buyer will ensure that the installation and use of the goods and the performance of any services by the company and the Buyer meets all statutory requirements.

PATENTS The Buyer warrants that any designs, specifications or instructions furnished to the Company shall not be such as will cause the Company to infringe any patent, industrial design, copyright or trademark or other rights of any third party in the execution of the Buyers order. The Buyer hereby indemnifies and forever holds the Company harmless against any infringement or unauthorized use of any such patent, industrial design, copyright or trademark. The sale and purchase of goods shall not confer on the Buyer any licence or rights under any patent industrial design, copyright or trademark the property of the Company.

PERFORMANCE Any figures or estimates given for performance of goods are based upon the Company’s experience and are such as the Company would expect to obtain on test. The Company will only accept liability for failure to comply with the figures or estimates given when such figures or estimates are guaranteed in writing within specified margins.

SUBCONTRACTING The Company reserves the right to sub-contract, manufacture and /or supply on any part of the goods quoted or on any materials or services to be supplied.

ENTIRE AGREEMENT These Terms and Conditions of Sale contain the entire understanding between the Buyer and the Company concerning the sale of the Goods or the provision of the Services and supercedes all prior communications between the Buyer and the Company. The Buyer acknowledges that, except as expressly stated in these Terms and Conditions of Sale, they have not relied on any representations, warranty or undertaking or any kind made by or on behalf of the Company in relation to the sale of the Goods or the provision of the Services.

GOVERNING LAW These terms and conditions of sale including the sales contract evidenced thereby shall in all respects be governed by and construed in accordance with the laws of the State of Victoria Australia and the Company and the Buyer hereby submit to the exclusive jurisdiction of the courts of the State of Victoria Australia and none other.