ONLINE TERMS OF SALE FOR BUSHFIRE MESH
The sale of goods or services by Stainless Steel Wire & Mesh Pty Ltd, an Australian Proprietary Limited Company and its affiliates (“Company”) is subject to the terms and conditions contained herein (“Terms”). The Terms contained herein take precedence over any terms and conditions which are proposed by a buyer of goods or services (“Buyer”) whether contained on a purchase order or otherwise. The terms and conditions contained herein, together with any Quotation/Pro-forma, Order Confirmation or Invoice delivered by Company to Buyer (the “Sales Confirmation”), is the entire contract between the Buyer and Company and shall supersede any and all other agreements and understandings between the parties with respect to the subject matter hereof. Company hereby rejects any and all terms and conditions proposed by Buyer, whether or not contained in any of Buyer’s business forms (including any purchase order). Company’s acceptance is limited to these Terms and is expressly conditional on Buyer’s acceptance of these Terms, and any additional or different terms proposed by Buyer are automatically rejected unless expressly assented to in writing by an authorized representative of Company.
All prices for goods are F.O.B. Origin. Unless otherwise set forth in the Sales Confirmation, the prices for goods will be the prices in effect on the date of shipment. Prices are subject to change without notice, unless otherwise expressly agreed in signed writing by Buyer and Company. All prices are stated in United States Dollars unless otherwise stated and do not include taxes.
2. Sales Order
Subject to the terms and conditions of this Agreement, the Company agrees to sell to the Buyer, and the Buyer agrees to purchase from the Company, such Goods as set forth in an accepted sales order entered into between the Parties (a “Sales Order”) at the prices, in the quantities, upon the timing and subject to the other terms specified therein, in the form attached hereto as Exhibit A. The Company will issue Sales Orders to the Buyer in written form via email. A Sales Order will be considered “accepted” upon written confirmation via email by the Buyer of the Sales Order within twenty-four (24) hours following the Company’s delivery thereof (a “Confirmation”). The Company may withdraw any Sales Order prior to the Buyer’s acceptance.
All Prices are exclusive of any sales, use or other taxes, tariffs, duties or governmental charges, if any, required to be collected in connection with the purchase and sale of Goods hereunder (“Transfer Taxes”). Unless the Buyer has delivered to the Company by email a Resale Certificate evidencing to the Company’s satisfaction the Buyer’s tax status with respect to the purchase of the Goods prior to the Company’s delivery of a Sales Order to the Buyer, the Buyer will pay and timely remit any Transfer Taxes arising hereunder to the appropriate governmental authority in accordance with applicable law.
4. Cancellation and Modification of Orders
Orders shall not be subject to cancellation or modification by Buyer in whole or in part (a) without Company’s prior written consent and (b) payment of a reasonable cancellation charge for applicable costs of purchased materials and engineering costs incurred or for which Company is obligated prior to cancellation or modification. Notwithstanding the foregoing, if special or custom products are ordered from Company, Buyer shall not be able to cancel or modify the order under any circumstances.
5. Credit Approval
Credit All shipments to be made hereunder shall at all times be subject to the approval of Company’s credit department. Company may invoice Buyer and recover for each delivery made of goods or Services made as a separate transaction without regard to any other delivery. If Buyer is in default under any agreement with Company, or if, in Company’s sole judgment, the financial responsibility of Buyer is or becomes unsatisfactory, then Company may at its option and without prejudice to any of its other remedies (i) defer or decline to make any shipments hereunder except upon receipt of satisfactory security or cash payments in advance, or (ii) terminate any order of goods or services that may have been placed by Buyer. Buyer shall reimburse Company for any costs incurred by Company, including reasonable attorney’s fees, to collect amounts due by Buyer to Company.
Unless otherwise agreed in writing by the parties, Company reserves the right to select the mode of transport and the identity of the carrier. Neither Buyer nor any consignee shall have the right to direct or reconsign any shipment to any destination other than that specified in the bill of lading without Company’s written consent. Buyer shall be responsible to pay for all shipping and transportation costs. Sales are F.O.B. Shipping Point Acceptance Final to the Company’s pick-up site or Buyer’s address as designated in the applicable Sales Order (the “Delivery Point”). The Buyer shall be responsible for the cost of shipping or transporting the Goods from the Delivery Point, and the Buyer assumes all responsibility for any injury or property damage arising during the shipping or transporting of the Goods. For the avoidance of doubt, the Company will not be responsible for any failure or delay of the Buyer in picking up any Goods or any losses or damage in transit. The delivery date provided by Company for the goods is only an estimate and is based upon prompt receipt of all necessary information from Buyer. Delivery times may vary depending on available production capacity and material availability at the time of the purchase order placement. Company will not be responsible for any delays, loss or damage in transit and failure to deliver within the time estimated will be not be a material breach of contract on Company’s part.
7. Title and Risk of loss.
Unless otherwise expressly agreed in signed writing by Buyer and Company, risk of loss passes to Buyer upon delivery of the goods to the carrier at the Company’s location or after three (3) days’ notice by Company to Buyer that the goods are available. Title passes to Buyer upon completion of delivery or notice period and Buyer’s payment in full for goods.
Company will not accept return of goods without prior approval. Approval may be given if a request is received within fourteen (14) days of delivery. No specially manufactured or cut off the roll orders will be accepted for return. All Goods returned are subject to inspection to ensure they are in a saleable condition. Company may refuse credit against goods not satisfying their inspection. A restocking fee of 30% will apply for all goods approved by Company for return.
9. Limited Warranty/Exclusive Remedy
Descriptions of the Goods are found on the Company’s website (https://www.sswm.com.au/bushfiremesh/ & https://wildfiredefensemesh.com/) (the “Specifications”). Company warrants that the goods are free from defects in material and workmanship at the time of shipment. In the event that the Goods do not conform to the Specifications, or are otherwise determined to be defective, Buyer’s sole remedy for any defective Goods or services is the repair or the replacement of the defective Goods. Any claim made by the Buyer must be made in writing within 48 hours of the date of the receipt of the Goods. Company may refuse claims after that time. The Buyer agrees to report any Goods missing from the quantities described in the invoice within 24 hours of receipt of the Goods.
THE FOREGOING WILL BE THE SOLE AND EXCLUSIVE REMEDY OF BUYER WHETHER IN CONTRACT, TORT, OR OTHERWISE, AND COMPANY WILL NOT BE LIABLE FOR INJURIES OR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM ANY CAUSE WHATSOEVER. THIS LIMITATION APPLIES TO ALL GOODS AND SERVICES. To the extent the limitation or exclusion of liabilities or damages contained herein is not permitted under applicable law, this limited warranty will apply to the maximum extent allowed by applicable law.
Company is not responsible for the installation of the Goods. Buyer warrants and represents that Buyer will only allow a skillful person and/or professional installer to complete the installation to ensure that the product properties are not negatively affected and that the product attributes can be delivered in line with industry standards. In some locations, local planning and approval may be required along with an approved installation company. Company will not be liable for any damage or performance failures due to improper installation.
11. Late Payment
If any invoice is not paid in full within thirty (30) days, the amount owned shall be subject to the maximum legal interest then permitted or one and one-half per cent (1½%) per month, whichever is lower. Unless the Buyer gives notice in writing to Company of any dispute or set off or challenges the accuracy of the invoice amount within ten (10) days of the receipt of said notice, the Buyer shall be deemed to have waived any right to challenge the accuracy of the invoice. If the Buyer does not challenge or pay the Company invoice within thirty (30) days after receipt thereof, then Buyer is obligated to pay any collection or legal expenses, including reasonable attorney’s fees, necessary to obtain full payment of the invoice amount. In the event of dispute, Company’s acceptance of any payment less than the full amount of any invoice shall not in any case constitute a waiver of Company’s right to collect the balance and shall not be deemed as satisfaction of Company’s claim.
Buyer acknowledges that it is not the practice of the Company to recommend the Goods are suitable for particular purpose or users and Buyer acknowledges that it does not rely, and that it is not reasonable for it to rely, on the skill or judgement of the Company. THE BUYER UNDERSTANDS THAT THE COMPANY HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, CONDITION, QUALITY, FITNESS FOR USE, OR SUITABILITY OF THE GOODS IN ANY RESPECT WHATSOEVER, INCLUDING ANY WARRANTY REGARDING THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT; IT BEING UNDERSTOOD AND AGREED THAT THE GOODS ARE BEING SOLD IN THEIR CURRENT CONDITION “AS IS” AS OF THE DATE HEREOF. The Company neither assumes nor authorizes any person to assume on its behalf of the Company any liability in connection with the use, reuse or resale of the Goods. The Buyer shall not be entitled to any return of or refund for the Goods purchased under an accepted Sales Order for any reason except for the limited warranty provided in Section 8.
The Buyer represents and warrants to the Company as of the Effective Date and as of the date of each Confirmation that (i) it has reviewed these Terms of Sale; (ii) the person entering into this Agreement on behalf of the Buyer has the full power and authority to do so, and all corporate or other actions have been taken, and all approvals obtained, that are necessary or advisable to make this Agreement binding and enforceable as against the Buyer; and (iii) this Agreement and any other applicable documents or agreements contemplated hereby have been duly assented to by the Buyer and constitute the Buyer’s legal, valid and binding obligation, enforceable against it in accordance with its terms.
Buyer assumes all risk and liability for loss, damages or injury to persons or property arising from the presence or use of the Goods. TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF REVENUE, INCOME OR PROFITS, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION FOR LOSS OF USE OR DATA), ARISING OUT OF OR IN ANY WAY RELATING TO THE GOODS, THIS AGREEMENT OR ANY BREACH OF THE AGREEMENT (REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY), EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, AND SHALL HAVE NO LIABILITY IN CONNECTION WITH, THE ACTS AND OMISSIONS OF ANY THIRD PARTY VENDORS, SUBCONTRACTORS OR OTHER THIRD PARTIES RESPONSIBLE FOR ANY ASPECT OF THE SERVICES.
15. Entire Agreement
This writing constitutes the entire agreement between the parties hereto, and no change or modification may be made herein unless the same shall be in writing duly executed by both Buyer and Company. This Agreement shall supersede any prior agreements between the parties covering the subject matter hereof, and this Agreement shall prevail over and supersede any different or additional terms and conditions contained in any of Buyer’s purchase orders, website agreements (including, without limitation, any terms or conditions subject to an accept button or other similar means of indicating acceptance) or other documents or agreements issued by Buyer. This Agreement terminates any prior agreements related to the Product.
16. Confidential Information
All non-public, confidential or proprietary information of Company, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Company to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with these Terms or any agreement, order or Release is confidential, solely for the use of performing such agreement, order or Release and may not be disclosed or copied unless authorized in advance by Company in writing. Upon Company’s request, Buyer shall promptly return all documents and other materials received from Company. Company shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
17. Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns from the date of acceptance by Company. This Agreement shall not be assigned without the written consent of Company and any permitted assignment shall not relieve Buyer of its obligations hereunder. In the event Buyer sells or otherwise transfers its assets or that portion of the business to which this Agreement relates, Buyer agrees that it will require the purchaser/transferee to assume all terms and obligations of this Agreement.
18. Relationship of the Parties
Nothing contained in any agreement, order or Release between Buyer and Company shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
19. Third Party Beneficiary
This agreement, order or Release between Buyer and Company is for the sole 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 under or by reason of these Terms.
Term of this Agreement shall commence on the Effective Date first set forth above and shall continue until terminated by either Party (the “Term”) according to these terms. Either Party may terminate this Agreement by written notice if the other Party materially breaches this Agreement. In addition to any remedies that may be provided under these Terms, Company may terminate this or any agreement or any Sales Order for which partial shipment has been made with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under the agreement, order or Release; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. In addition, the Company may terminate this Agreement or any Sales Order, in whole or in part, immediately, if the Company is no longer providing the specified services, or should the Buyer engage in illegal activity of any type. The Company may also terminate this Agreement or any Sales Order at any time by providing not less than 15 days’ notice to the Buyer.
These Terms of Sale will be governed by and construed under the laws of the United States (including federal arbitration law) and the State of Texas, without regard to conflicts of law principles. If any term or provision of this Agreement is found by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining terms and provisions hereof will be unimpaired and remain in full force and effect, and the illegal, invalid or unenforceable term or provision will be replaced by a term or provision that is legal, valid and enforceable and that comes closest to expressing the intent of the Parties as expressed herein.
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS OF SALE OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND THE COMPANY, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND YOU AGREE THAT THE COMPANY AND YOU ARE EACH WAIVING THE RIGHT TO SUE IN COURT AND TO HAVE A TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by Judicial Arbitration Mediation Services, Inc. (“JAMS”) pursuant to the JAMS Streamlined Arbitration Rules & Procedures effective July 1, 2014 (the “JAMS Rules”) and as modified by this agreement to arbitrate. The JAMS Rules, including instructions for bringing arbitration, are available on the JAMS website at http://www.jamsadr.com/rules-streamlined-arbitration. The Minimum Standards are available at http://www.jamsadr.com/consumer-arbitration.
23. Limitation of Actions
Notwithstanding any contrary statute of limitations, any cause of action for any alleged breach of this agreement by Company shall be barred unless commenced by Buyer within one year from the date of shipment.
This Agreement does not create any employment, partnership, joint venture, franchise or agency relationship between the Parties, and neither Party will be considered, or will hold itself out as, an agent, representative, partner or joint venturer of the other Party for any purpose. Neither party is authorized to bind the other to any obligation, affirmation or commitment with respect to any other person or entity. The waiver by either party of any breach or violation of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach or violation hereof. This Agreement may be executed in counterparts (including by email or facsimile), each of which will be deemed to be an original, and all of which taken together will constitute one and the same agreement. If any provision, right or remedy provided for herein is held to be unenforceable or inoperative by a court of competent jurisdiction, the validity and enforceability of the remaining provisions will not be affected thereby. All notices given hereunder will be sent to the Parties at the addresses set forth herein. Neither party shall be liable to the other for any non-performance or delay in the performance of any of its obligations hereunder (excluding payment obligations) due to any cause beyond such party’s reasonable control or due to acts of god, acts of civil or military authorities, terrorist acts, fires, labor disturbances, floods, epidemics, governmental rules or regulations, war, riot, delays in transportation, shortages of raw materials, shortages of services, power outages, or hacker attacks (each, a “Force Majeure Event”). The United Nations Convention on the International Sale of Goods shall not apply to this Agreement. This Agreement shall be construed as though both parties jointly drafted it. In the event that any of the provisions contained in this Agreement are held to be unenforceable such provisions will be narrowed (or deleted if necessary) to the minimum extent necessary to make them enforceable.