CAP-XX (AUSTRALIA) PTY LTD
TERMS AND CONDITIONS OF SALE OF PRODUCT SAMPLES
INTERPRETATION
In these Terms, unless the context otherwise requires:
“Buyer” means the entity with which CAP-XX enters into a contract for the sale of Product Samples.
“CAP-XX” means CAP-XX (Australia) Pty Ltd (ACN 077 060 872). The Sales Invoice will be generated by CAP-XX (Australia) Pty Ltd (ACN 077 060 872).
“Confidential Information” means information so defined in these Terms and Conditions of Sale.
“Contract” means a contract constituted in the manner described under the heading “Order Requirements”.
“Order” means a written order from Buyer to CAP-XX.
“Product Sample” means any one or more of CAP-XX’s products described in the Order and includes their packaging and any replacement goods.
“Terms” means these Terms and Condition of Sale. ENTIRE AGREEMENT
A contract comprising these Terms constitutes the entire agreement between CAP-XX and the Buyer in relation to the sale of the Product Samples. Any term, condition and/or provision of the Order or any previous communication or negotiation which is in any way inconsistent with these Terms shall not be applicable hereto or binding upon CAP-XX. CAP-XX’s failure to object to terms contained in any communication from the Buyer will not be a waiver of the Terms.
ORDER REQUIREMENTS
The Buyer will submit an Order for the Product Samples by electronic means. The Order must be in English and must specify the following information: type of Product Sample; quantity; purchase price; date of order; freight company and account number; and desired date of dispatch.
No contract for the supply of the Product Sample shall arise between CAP-XX and the Buyer unless and until the Order has been confirmed in writing by CAP-XX.
The Buyer must notify CAP-XX in writing of any claim for incorrect fulfilment of the Order or items damaged in transit within five business days of receipt of the Product Sample.
CONDITIONS ON USE
The Product Sample is supplied to the Buyer for use in electronic or electric equipment only and cannot be resold or transferred to a third party without CAP-XX’s written approval.
The Product Sample must not be used as a critical component in life support devices, or any other medical device or system where failure of the Product Sample could result in significant injury to the user.
Data collected involving the Product Sample, conclusions or summaries of such data and the existence of such data, is Confidential Information and may not be published or distributed to third parties without CAP-XX’s written approval.
The Product Sample may not be modified, dismantled or analysed for composition or structure without CAP-XX’s written approval.
The Buyer assumes all risk in handling and testing the Product Sample and must perform all handling and testing in compliance with the appropriate laws.
DELIVERY
Specified dates of delivery for the Product Sample are approximate only, and CAP-XX shall not be liable for any damage, loss or expense incurred by the Buyer if CAP-XX fails to meet the specified dates. The Product Sample shall be delivered from the CAP-XX designated plant EXW (as defined in the latest edition of “incoterms” published by the International Chamber of Commerce). The Buyer will be responsible for any licenses or clearances required at port of entry and destination. The Buyer authorises CAP-XX to act as its agent to arrange transport.
CANCELLATION
The Buyer may not cancel a confirmed Order for any reason including non-delivery of the Product Sample on any due date or dates specified by the Buyer without the written consent of CAP-XX. If the order is agreed to be cancelled by CAP-XX a full refund will be processed by CAP-XX to the Buyers credit card that was used to process the initial payment.
INSTALMENTS
If a Contract is entered into for delivery by instalments each instalment shall be deemed to be the subject of a separate Contract and, accordingly, but without prejudice to any other claim which either party may have against the other in respect thereof, the cancellation by the Buyer or CAP-XX or any failure on the part of either in acceptance of delivery (as the case may be) of any such instalment shall not affect the remainder of the Contract.
PRICES
Prices are listed on the CAP-XX website in USD, excluding freight and tax.
All prices are exclusive of all national, federal, state, and local excise, goods and services, sales, use and similar taxes, and exclusive of all import, export, or customs duties, tariffs, or like charges. The Buyer shall be liable for and pay all such amounts, however designated, levied, based, or imposed by any governmental authority, exclusive of taxes based on net income and shall remit payments net of any amounts required to be withheld for taxes. The Buyer shall provide proof of any tax- exempt status upon request.
DELIVERY
Ordered Products shall be delivered by air freight to the address provided on the purchase order.
The indicated delivery time is an estimate. If delivery takes longer than 30 days from the date of the order, the Buyer may request the termination of the sale agreement and full reimbursement. However, no damages or penalties of any kind will be due as a result of the delay.
RISK AND TITLE
Risk shall pass to the Buyer upon delivery of the Product Sample and any loss or damage thereafter shall not relieve the Buyer from any obligation hereunder. CAP-XX shall retain title to the Product Sample supplied to the Buyer until it has received payment in full.
TERMS AND METHOD OF PAYMENT
Payment is required at the time of ordering and must be made exclusively by credit card using the SSL protocol payment system to ensure that transmitted data is software encrypted and that no third party can intercept this payment data during transmission on the network.
WARRANTIES
Product Samples are provided as-is and no warranties, explicit or implied, are given.
REMEDIES
If CAP-XX is satisfied in its absolute discretion that the Product Sample is defective, CAP-XX shall (at CAP-XX’s option) replace or credit the Buyer’s account for any such Product Sample returned by the Buyer provided that:
- a) CAP-XX is promptly notified in writing upon discovery that such Product Sample failed to conform to these Terms with a detailed explanation of any alleged deficiencies; and
- b) such Product Sample is returned F.O.B. to CAP-XX’ s plant from which the Product Sample was shipped.
If CAP-XX elects to replace or credit such Product Sample, CAP-XX shall have a reasonable time to make such replacement or credit and this shall constitute fulfilment of all liability of CAP-XX to the Buyer whether based in contract, tort, indemnity, statutory provision or otherwise.
LIMITATION OF LIABILITY
All express or implied warranties, representations, statements, terms and conditions relating to the Product Sample or these Terms, not contained in these Terms, are excluded to the extent permitted by law.
Nothing in these Terms excludes, restricts or modifies any condition, warranty, right or remedy implied or imposed by any statute or regulation which cannot lawfully be excluded, restricted or modified.
If any condition or warranty is implied into these Terms and any Contract by law and cannot be excluded, the liability of CAP-XX for breach of the condition or warranty is limited to one or more of the following at CAP-XX’s option:
- a) replacement of the Product Sample or the supplyof equivalent products; or
- b) reimbursement of the cost of the Product Sample.
The maximum aggregate liability of CAP-XX under or in connection with these Terms or their subject matter whether in contract, tort (including without limitation negligence), equity, under statute or on any other basis is limited to an amount equal to the cost of the Product Sample.
CAP-XX is not liable for and no measure of damages will under any circumstances include special, indirect, consequential, incidental or punitive damages whether in contract, tort (including without limitation negligence), equity, under statute or on any other basis, and whether or not such loss or damage was foreseeable.
CAP-XX is held only to an obligation of means in the online sale process. CAP-XX may not be held liable for any prejudice or damage resulting from the use of the internet network, such as loss of data, intrusion, virus, service breakdown or other problems outside of its control.
CONFIDENTIALITY
The Buyer acknowledges that, in connection with the Contract and its relationship with CAP-XX, it may obtain or derive information or material relating to the Product Sample or to CAP- XX, which may be confidential or proprietary (“Confidential Information”). The Buyer shall at all times keep in trust and confidence all such Confidential Information. The Buyer will not use such Confidential Information other than as expressly authorized by CAP-XX for purposes of the Contract and will not disclose any such Confidential Information to third parties without CAP-XX’s written consent.
All documents and every constitutive element on the CAP-XX website are the exclusive intellectual property of CAP-XX. The reproduction, exploitation, redistribution or use of all or part of any visual, auditory or software element from the CAP-XX website is strictly prohibited.
NO IMPLIED RIGHTS
The Buyer shall not remove any notice of trademark, patent, copyright, trade secret or other rights with respect to Product Samples. Nothing in the Contract shall convey (whether directly or by implication, estoppel or otherwise) to the Buyer or any third party any transfer, license or other rights with respect to any intellectual property rights of CAP-XX or its suppliers, and CAP-XX reserves all such rights.
INFRINGEMENT CLAIMS
Subject to the “Limitation of Liability” clause, CAP-XX will, at its own expense, defend or, at its option, settle any action brought against the Buyer resulting from any third party claim or suit alleging that the Product Sample infringes the intellectual property of a third party, and CAP-XX agrees to be responsible for any reasonable costs involved and pay any damages finally awarded against the Buyer in any such claim, provided that the Buyer:
c) promptly notifies CAP-XX in writing of any such claim or suit;
d) makes no admissions or settlements without CAP-XX’s prior written consent;
e) at CAP-XX’s request and expense, allows CAP-XX complete control over any negotiations or litigation and/or the defence or settlement of such claim orsuit; and
f) gives CAP-XX all information and assistance as CAP-XX may reasonably require.
CAP-XX will have no obligation under this clause where any alleged infringement arises from use of the Product Sample by the Buyer in combination with any other products, technology or materials or in a manner or for an application other than for which they were designed or intended, regardless of whether CAP-XX was aware of or had been notified of such use.
FORCE MAJEURE
CAP-XX shall not be liable for any damages or delay caused, in whole or in part, by the occurrence of any contingency beyond the reasonable control of CAP-XX or of its suppliers, including but not limited to, riots, fire, flood, storm, earthquake, acts of God, strikes, wars or hostilities, sabotage, accidents, labour disputes, lockouts or shortages, any governmental laws, ordinances, rules, regulations, action or inaction, delay or inability to obtain supplies, raw materials, energy, equipment or transportation.
GOVERNING LAW
The Contract shall be governed by and construed in accordance with the laws of the State of New South Wales, Australia and each party submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia in relation to all matters arising under the Contract. The UN Convention on the International Sale of Goods shall not apply to the Product Sample or the Contract.