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Eltek Terms and Conditions

Eltek terms and conditions are subject to change without notice. These are the current terms of some selected countries in the Eltek universe.

Eltek General Purchasing Conditions

Revision: 6 Date: 26 May 2016

1         DEFINITIONS

1.1    "The Agreement" means Buyer's purchase order, these General Conditions of Purchase, technical documentation and other documents made part of this Agreement by special reference. In case of any contradiction, the documents of the Agreement shall apply in the order of precedence as stated above. Any standard terms or conditions of the Seller are explicitly not a part of the Agreement.

1.2    "The Price" means the amount to be paid to Seller for the Goods in accordance with the purchase order and variation orders made in accordance with clause 10.

1.3    "The Goods" means services, documentation, equipment, material and other items to be delivered to Buyer by Seller in accordance with the Agreement.

1.4    "Buyer" means Eltek AS or any Eltek Group companies where the majority shareholding is ELTEK AS.

1.5    "Seller" means the company or the individual the purchase order is issued to.

2    PURCHASE ORDER - confirmation/agreement

2.1     Buyer's purchase order shall immediately, or at the latest within 48 hours, be confirmed by Seller by    returning it accepted and signed. If Seller fails to return the purchase order confirmation within 48 hours, Buyer's purchase order shall be deemed to have been accepted without comments. Buyer is entitled to cancel the purchase order if the purchase order confirmation is not in accordance with the purchase order or if not received within 48 hours.

2.2    The purchase order confirmation shall always state the Price, and the time and place of delivery. Qualifications made by Seller when confirming the purchase order are not part of the Agreement, unless accepted by Buyer in writing.

2.3        This Agreement contains the entire agreement between the parties on the subject matter of this Agreement, and supersedes all representations, undertakings and agreements previously made between the parties with respect to the subject matter of this Agreement. This General Purchasing Agreement supersedes any general conditions of purchase/sale and other standard conditions. The Appendices shall be an integral part of this General Purchasing Agreement.

2.4    Seller shall not have the right to refuse to supply the Products ordered by Buyer in accordance with the purchase volumes indicated in Buyer's estimates or other planning tools. In case no estimate is given Seller shall take its best efforts to accept all Purchase Orders. In case such estimate of needs of the Products by the Buyer is issued by the Buyer, it is not binding upon the Buyer and shall serve solely for the information purposes of the Seller

3    DELIVERY

3.1    The Goods shall be delivered, properly packed and marked, at the agreed place and time of delivery. Unless otherwise expressly stated in the Agreement, delivery shall take place in accordance with the provisions of INCOTERMS 2000. Unless otherwise agreed, delivery shall be deemed to have taken place when the Goods are handed (or services performed) over to Buyer at Buyer's premises. Unless otherwise agreed, risk of damage to the goods passes upon delivery. 

3.2     If Buyer is responsible for transportation, Seller shall in good time prior to dispatch, request dispatch instructions from Buyer. If Seller is responsible for transportation, he shall, in due time, send an advice note, advising of dispatch so that Buyer may make preparations for receipt of the Goods.

3.3    If Seller has reason to assume that any part of the delivery may be delayed, he shall notify Buyer promptly thereof. Seller shall, without undue delay, inform Buyer in writing about the cause of the delay, the estimated effect on the agreed time of delivery and proposed remedial actions to avoid or reduce the delay.

    If Seller's remedial action to avoid or reduce the delay is deemed to be inadequate, Buyer may demand Seller to take effect measures considered necessary. The costs of such measures shall be borne by Seller. If the delay is caused by circumstances for which Buyer is responsible, Buyer may only demand that such measures are put into effect in accordance with the provisions given in clause 10.

3.4    In no circumstances shall the Seller delay or suspend the delivery of goods for any reason whatsoever to the Buyer for which payment has not been received from Buyer. 

4    DOCUMENTATION, MARKING AND SERVICE

4.1    Packing lists, advice notes, invoices and other documentation shall only relate to one purchase order and shall be duly marked with purchase order number and part number(s) and other specifications stated in the purchase order. The documentation shall be completed so that each item corresponds to the purchase order with respect to item number, part number, Goods description and specifications.

4.2    Seller shall mark the Goods with Buyer part number and in accordance with packing lists and instructions stated in the purchase order. Seller shall also mark the Goods in conformity with the applicable EU directives and any national rules relating to marking. If CE marking is required, Seller shall attach a manufacturer's declaration of conformity or a certificate of conformity.

4.3    Seller shall print the invoice number of the shipment on the packing list.

4.4    If requested by Buyer, Buyer or any third party specified by Buyer shall be supplied with a certificate of origin and custom invoice. Costs incurred by the Buyer due to lack of certificate of origin or custom invoices shall be charged to Seller and deducted the Price. 

4.5    Any documentation which does not comply with the conditions of Article 4 may be returned by Buyer. Any certificates, drawings and other documents specified in the purchase order shall be delivered together with the Goods. Delivery of documentation is considered to be part of the Goods and invoices will not be paid until it has been received.

4.6    Documents submitted to Buyer for examination and approval will not relieve the Supplier from his obligation to execute the purchase order according to the Agreement.

4.7    Product availability and End of Life (EOL), if the Seller decides to phase out any of the products covered by this agreement the Seller commits to provide a list of such products minimum 18 months before the products EOL. This EOL list must contain product description; part no. and last time buy information.

4.8    SPARES, The Seller will provide the Buyer a Spares package and support for all products covered within this contract during the volume delivery period and for ten years (10) after the official EOL date described in the article 4.6.

5    QUALITY ASSURANCE AND ENVIRONMENTAL MANAGEMENT

5.1    A quality assurance system according to the ISO 9000 series or a corresponding system shall have been established and implemented by Seller.

5.2    Buyer has signed the ICC charter on sustainable development and has   an environmental management system according to ISO 14001. This also makes demands on Seller for a continuous improvement of the environment. Seller is expected, should he fail to have a corresponding system, to show a conscious attitude to environmental management by complying with requirements for the environment and arranging for continuous improvements in his operations. Seller shall, in the same way as Buyer, ensure compliance with recommendations from concerned parties.

5.3    Buyer reserves the right to approve and carry out audits of the quality assurance and environmental management system of Seller or any sub-contractors. Seller shall provide any necessary assistance in this respect.

5.4    The regulations for ESD Protection must be complied with when handling and delivering electronic components and equipment. If not complied with, Buyer has the right to claim compensations and/or cancel the order.

6    PROPRIETARY RIGHTS

6.1    Unless otherwise agreed, Seller shall mark and keep the Goods, as well as materials and equipment belonging to Buyer stored at the place of production, separate from items belonging to Seller or a third party.

6.2    Seller is not entitled to retain the whole or part of the Goods as security for claims on Buyer, notwithstanding any dispute in respect of Seller's compensation.

7    PRICE, PAYMENT AND AUDIT

7.1    The Price is fixed and firm and shall not be subject to escalation. The Price(s) are stated in the Appendices hereto unless otherwise agreed. Changes in Price(s) shall be mutually agreed and negotiated in good faith.

7.2    Unless otherwise agreed, payment shall be made not later than 120 days from receipt of a correct invoice. Unless otherwise agreed, invoice shall be issued upon delivery. Buyer is entitled to withhold disputed parts of the invoice. 

7.3    Buyer or his representative shall be entitled to audit all documentation concerning reimbursable work. This right lies with Buyer for the duration of the Agreement and for up to 2 years after the expiry of the year in which the Goods were delivered. 

8    INSPECTION

8.1    Before delivery, Seller shall search for errors or defects in the Goods and the documentation, and shall notify Buyer without undue delay if errors or defects are identified.

8.2    Buyer and any person authorized by him shall be entitled to perform inspections and tests at Seller's and any sub-contractor's premises as he deems necessary to ensure that the Goods are delivered in accordance with the Agreement. Seller shall provide any assistance necessary in this respect. Likewise Buyer may request the submission of test records, material certificates, calculations etc.

8.3    The inspections and tests mentioned above shall not relieve Seller from any of his obligations under the Agreement. This also applies if Seller sends technical documentation or other documents to Buyer for inspection and possible approval.

9    VARIATION ORDERS

9.1    Buyer is entitled to make any variations to the Goods, or part thereof. Such variations may include increase or reduction of scope of supply, character, quality, nature or design as well as change of delivery time, provided that such variations are within what the parties could reasonably expect when entering into the Agreement. The variation will be formalized by Buyer's issuance of a written variation order. Seller's obligation under this Agreement applies to all variations to the Goods. 

9.2    Prior to issuance of a variation order, Seller shall, upon Buyer's request and without delay, prepare and   send to Buyer an estimate describing the variation work, and inform about possible effects on Price and delivery time. If Seller does not prepare an estimate as prescribed, Seller has thereby confirmed that the variation does not increase the Price or the delivery time.

9.3    Unless otherwise stated in the Agreement, the effect of the variation order shall be agreed in writing   between the parties. The price shall reflect the price level of the original purchase order.

9.4    At the request of Buyer, the variation order shall be implemented without undue delay, irrespective of whether or not the parties have agreed regarding the effect of the variation on the Agreement.

10    RESCHEDULING AND CANCELLATIO

10.1    Rescheduling Window. The Purchase Order is binding for both Parties, unless agreed in writing between both parties before shipment. The Buyer may at any time, by written notice issued at least one (1)  working day before shipment of any Products, reschedule the Delivery Dates for such Products to a maximum of ninety (90) calendar days after the original Delivery Date. 

10.2     Cancellation Window. The Buyer may at any time, by written notice issued at least one (1) week before shipment of any Products cancel the Delivery Dates for such Products. 

11    WARRANTIES AND LIABILITIES

11.1 Warranty period. The Seller guarantees that each and every Product delivered to the Buyer is new, free of defects in the material and components used, and complies with specifications and workmanship, technical and other applicable standards as well as condition under this Agreement. This warranty shall apply for twelve (12) months from date of delivery from the Seller to the Buyer. Costs of returning Products to the Seller in order to replace and/or fixing defects of the defected Product in the warranty period of twelve (12) months are borne by the Seller.  

For replacement within the warranty period the Seller will replace or repair the Products at the expense of the Seller and the Seller shall cover all delivery costs, taxes and duties payable for said replacements or component parts delivered to the site / warehouse of the Buyer. The costs include all labor costs and other associated costs of third parties for the repair/replacement to be carried out. 

The Costs of returning Products with in the warranty period are borne by the Seller. The Seller will replace or repair the products as defined in this agreement within a reasonable time frame, how ever no event later than within one (1) month from notice of such defect or damage by the Buyer. 

For any repair work beyond the twelve (12) months warranty period, the Seller will repair the Products at negotiated price for the Buyer. The Costs of returning Products beyond the warranty period are borne by the Buyer. 

11.2 The Product shall be deemed to have defects if it does not meet the criteria set in this Agreement (especially but not limited to the warranties mentioned in previous section) and other applicable technical, product, quality and other applicable specifications which the Product shall have pursuant to or on the basis of this Agreement (e.g. notification of technical standards, etc.). 

11.3 If Buyer, due to defective Products, is made responsible by third parties, Seller's liability under this Article 11 is subject to the following limitations:

"    The amount of damages under this Article 11 is limited to a value of ten million € (10.000.000. - EURO) per claim.

This agreement does not exclude or limits liability for claims in respect to:

"    the Seller's liability under any applicable product liability legislation (including the General product Safety Directive 2001/95/EC)

"    Liability for death or personal injury:

o    Resulting from the supply or use of any delivered product or

o    Resulting from its negligence

"    Fraud or fraudulent misrepresentation

"    Liability which cannot be excluded by law

"    Liability for Data Protection and law Enforcement, Intellectual property rights indemnity and Confidentiality 

Seller shall not be liable for any non-performance under or related to this Agreement due to a Force Majeure Event; the right to terminate remains unaffected by this limitation.

11.4 The Buyer may inspect the delivered Products and examine whether they have any defects after the Products are delivered to the place of final destination specified in the Purchase Order. If the Buyer discovers defects in the delivered Products, the Buyer is obliged to notify the Seller of such fact without undue delay from their delivery. If any Product(s) has the defect(s), the Seller has to at Buyer's option: 

(i) to supply replacement Product(s) to fully satisfy the given warranties at Seller's sole risk and expense within a reasonable time period specified by the Buyer; or

(ii) to reimburse to Buyer the Price of all such defective Product(s); or 

(iii) to repair such defective Product(s) at Seller's sole risk and expense within a reasonable time period specified by the Buyer; or 

(iv) to repair the Product(s) or cause the Product(s) to be repaired by any third party at Seller's sole risk and expense. 

(v) at Sellers expense purchase product from a third party as a direct replacement of Sellers product.

11.5     Epidemic Failure Warranty - "Epidemic Failure" means that more than 3% of the total installed base of the same type of Products has experienced the same type of failure to conform to the applicable Specifications, and such failure materially affects Product functionality.  Seller warrants that the Products will not experience Epidemic Failure for a period equal to two (2) times the length of the applicable Product Warranty Period (Epidemic Failure Warranty).  Unless otherwise agreed in writing by the parties, if an Epidemic Failure occurs, upon notice from the Buyer who will instruct the Seller to -

(a) at Seller's expense, remove from the field and place in the buyers storage locations all units of the product under Epidemic Failure Warranty (Covered Products); 

(b) refund payments made by buyer for Covered Products; 

(c) cancel all invoices for the Product; and, 

(d) at Seller's expense, provide a rapid solution until a replacement Product is available.  

In addition, the buyer may cancel all outstanding P.O.s, Blanket Orders and Releases for the Products without further obligation.

(e) at Sellers expense purchase product from a third party as a direct replacement of Sellers product.

11.6     Seller shall ensure that it and its suppliers have sufficient insurance (e.g. business interruption and liability insurances) to meet the potential warranty and liability agreed in this contract. Seller shall actively work with its suppliers with risk management. Seller shall use commercially reasonable efforts to safeguard that production of so-called critical components is not located to a single location.

11.7 MTBF, The Seller shall ensure that the MTBF for the products within this contract meet the specifications and requirements in line with the expectations to the market and application and in line with the Buyers requirements.

12    DELAYS

12.1     Time shall be of the essence in relation to all delivery deadlines. If the Seller fails to meet a first confirmed DELIVERY DATE the Buyer may either claim actual damages or Buyer may claim liquidated damages in the amount of three (3) % of the price of the delayed delivery for each calendar day of delay computed from the DELIVERY DATE without grace period, up to an aggregated payment per individual purchase agreement of twenty-four (24) % of the price of the delayed delivery. Additionally, the Buyer may claim any costs of air transportation of the delayed delivery. Such air transportation shall be arranged by Seller and the cost shall be borne by Seller. After 10 days of delay the Buyer may cancel any PURCHASE ORDER without setting any new time limit or grace period. Such liquidated damages represent a genuine pre-estimate by the PARTIES of the expected loss or damage to ORDERING PARTY and are not intended in any way to operate as a penalty. This should extend to all LATE delivered products and parts.

13    TERMINATION

13.1     Buyer may terminate this Purchasing Agreement for convenience with at least (18) months' prior written notice.

13.2     Buyer may terminate this Purchasing Agreement forthwith in writing if the other Party:

(i)    becomes insolvent, is declared bankrupt, suffers other similar proceeding or discontinues its business; or

(ii)    is in breach of any of its obligations under this Purchasing Agreement and has failed to remedy such breach within thirty (30) days after having received written notice of such breach and the intention of the notifying Party to terminate this Supply Agreement if the breach is not timely remedied.

In addition to what is mentioned above Buyer has the right to terminate this Agreement in case Seller sells all or substantially all of its assets, merges or consolidates with a third party or suffers a material change of ownership.

13.3     The termination of this Agreement shall survive any termination with regard to Product(s) already delivered under this Agreement.

13.4    The Buyer is entitled to Claim actual damages from the Seller in case where this Seller has breached this Agreement or any provision thereof.

14    FORCE MAJEURE

14.1     Any failure of Buyer or Seller to comply with the terms of this Agreement if such failure is caused by circumstances not directly under the control of the party concerned, including but not limited to, failures resulting from Force Majeure, Acts of God, natural disasters, storm, flood, earthquake, explosion, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restrictions, riots, transportation embargoes, boycotts, failures or delays in transportation or the mails, acts of any government, whether national, state, local or otherwise, or any agency thereof, or judicial action, shall be excused for performance continues, provided that the non-performing Party makes a reasonable effort to anticipate the effect of the intervening condition, and promptly performs when said condition ceases to exist. 

14.2     To ensure continual supply from the Seller to the Buyer and in the event of Force Majeure the Seller shall provide the Buyer a full business continuity and disaster recovery plan (BR&DRP) which shall include, but not limited to the following:

BR&DRP Description

"    Pre-Planning Activities (Project Initiation) 

"    Vulnerability Assessment and General Definition 

"    Requirements 

"    Business Impact Analysis 

"    Detailed Definition of Requirements 

"    Plan Development 

"    Testing Program 

"    Maintenance Program 

"    Initial Plan Testing and Plan Implementation

"    Planning Scope and Plan Objectives 

"    Project Organization and Staffing 

"    Project Control 

"    Schedule of Deliverables 

"    Resource Requirements

"    Production schedule plan and priorities.

15    INSURANCE

15.1 Seller shall provide and maintain insurance policies covering the liability possibly incurred as a result of the Agreement. In addition, he shall keep the Goods insured until delivery has taken place according to the agreed term of delivery according to INCOTERMS 2000.

If requested, Seller shall submit insurance certificates. Buyer shall be covered by the insurance as   additional insured, and Seller's insurance company shall waive its right of subrogation against Buyer.

16    SECRECY

16.1  Each party shall keep secret all information received from the other party in connection with this Agreement. Buyer shall, nevertheless, be entitled to transfer such information to a third party to the extent necessary in connection with the production, maintenance, modification, use and inspection of the Goods.

16.2  Seller shall not publish information regarding the Agreement without the Buyer's written approval. Such  approval shall not be unreasonably withheld. On Buyer's request, Seller shall return all drawings, calculations and other documentation to Buyer.

17    OWNERSHIP OF DOCUMENTATION AND COMPUTER PROGRAMS, INDUSTRIAL PROPERTY RIGHTS

17.1    Any material (including documentation and computer programs) placed at Seller's disposal by Buyer or developed mainly on the basis of such information, is the property of Buyer and shall not be used for other purposes than the execution of the Agreement. On Buyer's request, Seller shall return such documentation and computer programs to Buyer.

17.2    Any inventions made by Seller during the execution of the Agreement shall be the property of Seller. Buyer shall, nevertheless, have the proprietary right to inventions which mainly are based on technical information received by Seller from Buyer. Seller shall notify Buyer of any such invention, and give Buyer the assistance necessary for Buyer to patent the invention. Buyer shall pay to Seller all reasonable expenses incurred by Seller in connection with such patenting.

17.3    Seller shall give Buyer an irrevocable, royalty free, non-exclusive right to use all inventions made by Seller during execution of the Agreement and all inventions in Seller's possession to the extent necessary for the production, operation, maintenance or repair of the Goods.

17.4    Intellectual/industrial property rights to all other results derived pursuant to the Agreement, shall be the sole property of Buyer.

17.5    It is Seller's duty to ensure that there is no conflict between the Goods or its application and the rights of any third party. Seller shall indemnify Buyer from any claims resulting from the infringement of any rights of a third party.

18    EXPORT CONTROLS

18.1    Seller shall comply with any export/re-export regulations in force in Seller's country or the country of origin.

18.2    Seller shall notify Buyer if the Goods are subject to export restrictions and, at the request of Buyer, give a written statement as to which export restrictions apply and whether a (re-)export license is required for the country of destination in question.

18.3     Seller shall indemnify and hold Buyer harmless from any breach of export controls regulations in Seller's country or the country of origin caused by Seller's circumstances or by insufficient information from Seller.

19    HEALTH, SAFETY AND ENVIRONMENT

19.1    Seller shall comply with all applicable rules, regulations and standards regarding health, safety and environment and comply with all requirements from local authorities through all the production phases until the Goods have been delivered. Seller shall comply with requirements from Buyer and Buyer's customer regarding health, safety and environment.

Seller shall hold all necessary permits and comply with all requirements from public authorities for the preservation of the environment at all stages of production up to delivery of the Goods.

20    MARKETING

20.1    Seller may not use any reference to Buyer in its marketing without the prior written consent of Buyer.

21    ASSIGNMENTS AND SUB-CONTRACTS

21.1    Seller may not assign the Agreement or any part thereof, or conclude any sub-contracts without the prior written consent of Buyer. Limited use of hired manpower, and minor purchases do not require Buyer's consent.

21.2     Buyer may assign, wholly or in part, its rights and obligations under this Agreement to a third party.

22    NORWEGIAN LAW DISPUTES

22.1    This Agreement shall be governed by and interpreted in accordance with Norwegian law.

22.2     Arbitration. Any disputes arising out of or in connection with this Agreement, including the disputes concerning its validity, interpretation or annulment, shall be settled through arbitration in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with the said rules. Arbitration shall take place in Oslo, Norway and shall be conducted in the English language.

All awards may if necessary be enforced by any court having jurisdiction in the same manner as a judgment in such court.

Both Parties agree that all arbitral proceedings conducted under this article shall be kept confidential, and all information, documentation, materials shall be used solely for the purpose of those proceedings.

Australia Terms and Conditions of Purchase

1.   DEFINITIONS

1.1    "The Agreement" means Buyer's purchase order, these General Conditions of Purchase, any special conditions, technical documentation and other documents made part of this Agreement by special reference. Any special conditions contained in this Purchase Order shall take precedence over these terms and conditions.  Any standard terms or conditions of the Seller are explicitly not a part of the Agreement.

1.2    "The Price" means the amount to be paid to Seller for the Goods in accordance with the purchase order and variation orders made in accordance with clause 9.  Unless otherwise stated, the total Purchase Order price as indicated in the Purchase Order is in Australian currency excluding GST and is fixed and firm, not subject to escalation for the duration of the Purchase Order; and includes all packing, testing and documentation costs.

1.3    "The Goods" means services, documentation, equipment, material and other items to be delivered to Buyer by Seller in accordance with the Agreement.

1.4    "Buyer" means Eltek Australia Pty Ltd

1.5    "Seller" means the company or the individual the purchase order is issued to.

2.  PURCHASE ORDER

A Purchase Order for Goods is issued by Buyer to Seller.

2.1     The Purchase Order shall be effective from the date of issue as stated in the Purchase Order.

2.2     Buyer's purchase order shall immediately, or at the latest within 48 hours, be confirmed by Seller by returning it accepted and signed. If Seller fails to return the purchase order confirmation within 48 hours, Buyer's purchase order shall be deemed to have been accepted without comments. Buyer is entitled to cancel the purchase order if the purchase order confirmation is not in accordance with the purchase order or if not received within 48 hours

2.3    The purchase order confirmation shall always state the Price, and the time and place of delivery. Qualifications made by Seller when confirming the purchase order are not part of the Agreement, unless accepted by Buyer in writing.

2.4   This Agreement contains the entire agreement between the parties on the subject matter of this Agreement, and supersedes all representations, undertakings and agreements previously made between the parties with respect to the subject matter of this Agreement. This General Purchasing Agreement supersedes any general conditions of purchase/sale and other standard conditions. The Appendices shall be an integral part of this General Purchasing Agreement.

2.5    Seller shall not have the right to refuse to supply the Products ordered by Buyer in accordance with the purchase volumes indicated in Buyer's estimates or other planning tools. In case no estimate is given Seller shall take its best efforts to accept all Purchase Orders. In case such estimate of needs of the Products by the Buyer is issued by the Buyer, it is not binding upon the Buyer and shall serve solely for the information purposes of the Seller

3. DELIVERY

3.1    The Goods shall be delivered, properly packed and marked, at the agreed place and time of delivery. Unless otherwise expressly stated in the Agreement, delivery shall take place in accordance with the provisions of INCOTERMS 2000. Unless stated otherwise in the Purchase Order, Seller at its cost shall unload the Goods at the specified location.

Seller shall be liable for all or any damage, loss or destruction to any Goods or property resulting from improper packaging or handling by Seller.

Unless otherwise agreed, delivery shall be deemed to have taken place when the Goods are handed (or services performed) over to Buyer at Buyer's premises. Unless otherwise agreed, risk of damage to the goods passes upon delivery. 

3.2     If Buyer is responsible for transportation, Seller shall in good time prior to dispatch, request dispatch instructions from Buyer. If Seller is responsible for transportation, he shall, in due time, send an advice note, advising of dispatch so that Buyer may make preparations for receipt of the Goods.

3.3    If Seller has reason to assume that any part of the delivery may be delayed, he shall notify Buyer promptly thereof. Seller shall, without undue delay, inform Buyer in writing about the cause of the delay, the estimated effect on the agreed time of delivery and proposed remedial actions to avoid or reduce the delay.

If Seller's remedial action to avoid or reduce the delay is deemed to be inadequate, Buyer may demand Seller to take effect measures considered necessary. The costs of such measures shall be borne by Seller. If the delay is caused by circumstances for which Buyer is responsible, Buyer may only demand that such measures are put into effect in accordance with the provisions given in clause 12.

3.4    In no circumstances shall the Seller delay or suspend the delivery of goods for any reason whatsoever to the Buyer for which payment has not been received from Buyer.

4.  REVISION

4.1     Buyer reserves the right at any time in relation to the Goods to make a Revision to the Purchase Order to correct any errors or omissions therein or to make any changes including in respect of specifications, quantity and delivery.

4.2     Seller must not make such corrections or changes until the resulting cost and time impacts have been agreed between the parties and the proper Purchase Order document with the appropriate ‘revision number’ has been authorised and issued by Buyer and acknowledged and accepted by Seller. Thereafter Seller agrees to take immediate and necessary action to comply with such Revision to the Purchase Order.

5.  TITLE AND RISK

5.1     Title to and property in the Goods shall pass to Buyer on the first to occur of payment of any part of the Purchase Order price or delivery to the place specified in the Purchase Order. Such Goods yet to be delivered by Seller shall be appropriately marked and identified as the property of Buyer.

5.2     Risk in the Goods shall remain with Seller until the time Buyer takes delivery of the Goods unless otherwise expressly stated in the Purchase Order. Any loss or damage to Goods howsoever caused when under Seller’s risk shall at its own cost be rectified by Seller and thereafter when the risk in the Goods has transferred to Buyer, Seller shall be liable for any loss or damage to such Goods to the extent caused by its negligence, wilful act, misconduct, fault, breach of duty (statutory or otherwise) or breach of the Purchase Order.

6.  DOCUMENTATION, MARKING AND SERVICE

6.1    Packing lists, advice notes, invoices and other documentation shall only relate to one purchase order and shall be duly marked with purchase order number and part number(s) and other specifications stated in the purchase order. The documentation shall be completed so that each item corresponds to the purchase order with respect to item number, part number, Goods description and specifications.

6.2    Seller shall mark the Goods with Buyer part number and in accordance with packing lists and instructions stated in the purchase order. Seller shall also mark the Goods in conformity with the applicable AU directives and any national rules relating to marking. If CE marking is required, Seller shall attach a manufacturer's declaration of conformity or a certificate of conformity.

6.3    Seller shall print the invoice number of the shipment on the packing list.

6.4    If requested by Buyer, Buyer or any third party specified by Buyer shall be supplied with a certificate of origin and custom invoice. Costs incurred by the Buyer due to lack of certificate of origin or custom invoices shall be charged to Seller and deducted the Price.

6.5    Any documentation which does not comply with the conditions of Clause 6 may be returned by Buyer. Any certificates, drawings and other documents specified in the purchase order shall be delivered together with the Goods. Delivery of documentation is considered to be part of the Goods and invoices will not be paid until it has been received.

6.6    Documents submitted to Buyer for examination and approval will not relieve the Seller from his obligation to execute the purchase order according to the Agreement.

6.7    Product availability and End of Life (EOL), if the Seller decides to phase out any of the products covered by this agreement the Seller commits to provide a list of such products minimum 18 months before the products EOL. This EOL list must contain product description; part no. and last time buy information.

6.8    SPARES, The Seller will provide the Buyer a Spares package and support for all products covered within this contract during the volume delivery period and for ten years (10) after the official EOL date described in the Clause 6.7.

7.  QUALITY ASSURANCE AND ENVIRONMENTAL MANAGEMENT

7.1    A quality assurance system according to the ISO 9000 series or a corresponding system shall have been established and implemented by Seller.

7.2    Buyer has signed the ICC charter on sustainable development and has   an environmental management system according to ISO 14001. This also makes demands on Seller for a continuous improvement of the environment. Seller is expected, should he fail to have a corresponding system, to show a conscious attitude to environmental management by complying with requirements for the environment and arranging for continuous improvements in his operations. Seller shall, in the same way as Buyer, ensure compliance with recommendations from concerned parties.

7.3    Buyer reserves the right to approve and carry out audits of the quality assurance and environmental management system of Seller or any sub-contractors. Seller shall provide any necessary assistance in this respect.

7.4    The regulations for ESD Protection must be complied with when handling and delivering electronic components and equipment. If not complied with, Buyer has the right to claim compensations and/or cancel the order.

8.  PROPRIETARY RIGHTS

8.1    Unless otherwise agreed, Seller shall mark and keep the Goods, as well as materials and equipment belonging to Buyer stored at the place of production, separate from items belonging to Seller or a third party.

8.2    Seller is not entitled to retain the whole or part of the Goods as security for claims on Buyer, notwithstanding any dispute in respect of Seller's compensation.

9.  PRICE, PAYMENT AND AUDIT

9.1    The Price is fixed and firm and shall not be subject to escalation. The Price(s) are stated in the Appendices hereto unless otherwise agreed. Changes in Price(s) shall be mutually agreed and negotiated in good faith.

9.2    Unless otherwise agreed, payment shall be made thirty (30) days End of Month from receipt of a correct invoice and required supporting documentation following delivery of Goods to the delivery point stated in the Purchase Order. Unless otherwise agreed, invoice shall be issued upon delivery. Buyer is entitled to withhold disputed parts of the invoice.

9.3    Buyer or his representative shall be entitled to audit all documentation concerning reimbursable work. This right lies with Buyer for the duration of the Agreement and for up to 2 years after the expiry of the year in which the Goods were delivered.

10.  INSPECTION

10.1    Before delivery, Seller shall search for errors or defects in the Goods and the documentation, and shall notify Buyer without undue delay if errors or defects are identified.

10.2    Buyer and any person authorized by him shall be entitled to perform inspections and tests at Seller's and any sub-contractor's premises as he deems necessary to ensure that the Goods are delivered in accordance with the Agreement. Seller shall provide any assistance necessary in this respect. Likewise Buyer may request the submission of test records, material certificates, calculations etc.

10.3    The inspections and tests mentioned above shall not relieve Seller from any of his obligations under the Agreement. This also applies if Seller sends technical documentation or other documents to Buyer for inspection and possible approval.

11.  VARIATION ORDERS

11.1    Buyer is entitled to make any variations to the Goods, or part thereof. Such variations may include increase or reduction of scope of supply, character, quality, nature or design as well as change of delivery time, provided that such variations are within what the parties could reasonably expect when entering into the Agreement. The variation will be formalized by Buyer's issuance of a written variation order. Seller's obligation under this Agreement applies to all variations to the Goods.

11.2    Prior to issuance of a variation order, Seller shall, upon Buyer's request and without delay, prepare and   send to Buyer an estimate describing the variation work, and inform about possible effects on Price and delivery time. If Seller does not prepare an estimate as prescribed, Seller has thereby confirmed that the variation does not increase the Price or the delivery time.

11.3    Unless otherwise stated in the Agreement, the effect of the variation order shall be agreed in writing   between the parties. The price shall reflect the price level of the original purchase order.

11.4    At the request of Buyer, the variation order shall be implemented without undue delay, irrespective of whether or not the parties have agreed regarding the effect of the variation on the Agreement.

12.  RESCHEDULING AND CANCELLATION

12.1    Rescheduling Window. The Purchase Order is binding for both Parties, unless agreed in writing between both parties before shipment. The Buyer may at any time, by written notice issued at least one (1)  working day before shipment of any Products, reschedule the Delivery Dates for such Products to a maximum of ninety (90) calendar days after the original Delivery Date.

12.2    Buyer may at its option cancel the Purchase Order or any part thereof at any time.  Buyer’s liability will be to pay for materials manufactured and supplied in accordance with the Purchase Order up to the date of cancellation and for costs of materials and other items ordered in connection with the Goods for which Seller is legally bound to pay.  Upon such payment, title to and property in all those materials and other items shall pass to Buyer.

13.  WARRANTIES AND LIABILITIES

13.1   Warranty period. The Seller guarantees that each and every Products delivered to the Buyer is new, free of defects in the material and components used, fit for the purpose intended and complies with specifications and workmanship, technical and other applicable standards as well as condition under this Agreement. This warranty shall apply for twelve (12) months from date of delivery from the Seller to the Buyer. Costs of returning Products to the Seller in order to replace and/or fixing defects of the defected Product in the warranty period of twelve (12) months are borne by the Seller.

For replacement within the warranty period, the Seller will replace or repair the Products at the expense of the Seller and the Seller shall cover all delivery costs, taxes and duties payable for said replacements or component parts delivered to the site / warehouse of the Buyer. The costs include all labor costs and other associated costs of third parties for the repair/replacement to be carried out. 

The Costs of returning Products within the warranty period are borne by the Seller. The Seller will replace or repair the products as defined in this agreement within a reasonable time frame, however no event later than within one (1) month from notice of such defect or damage by the Buyer. 

For any repair work beyond the twelve (12) months warranty period, the Seller will repair the Products at negotiated price for the Buyer. The Costs of returning Products beyond the warranty period are borne by the Buyer.

13.2    The Product shall be deemed to have defects if it does not meet the criteria set in this Agreement (especially but not limited to the warranties mentioned in previous section) and other applicable technical, product, quality and other applicable specifications which the Product shall have pursuant to or on the basis of this Agreement (e.g. notification of technical standards, etc.).

13.3    If Buyer, due to defective Products, is made responsible by third parties, Seller's liability under this clause 13 is subject to the following limitations: The amount of damages under this clause 13 is limited to a value of ten million Australian Dollar (AUD 10,000,000) per claim.

This agreement does not exclude or limits liability for claims in respect to:

(i) the Seller's liability under any applicable product liability legislation (including without limitation, the General product Safety Directive 2001/95/EC, Competition and Consumer Act 2010, CCA; Product Stewardship Act 2011; Sale of Goods Act 1923);

(ii) Liability for death or personal injury:

•Resulting from the supply or use of any delivered product or

•Resulting from its negligence

(iii) Fraud or fraudulent misrepresentation;

(iv) Liability which cannot be excluded by law;

(v) Liability for Data Protection and law Enforcement, including without limitation, Privacy and Personal Information Protection Act 1998 (NSW), Federal Privacy Act 1988 (Cth), SPAM Act 2003 (Cth);

(vi) Liability for Intellectual property rights indemnity, including without limitation, Copyright Act 1968 (Cth); Trade Marks Act 1995 (Cth); Patents Act 1990 (Cth); Design Act 2003 (Cth); Circuit Layouts Regulations 1990; Intellectual Property Laws Amendment Act 2015; Intellectual Property Legislation Amendment (TRIPS Protocol and Other Measure) Regulation 2015;

(vii) Liability on Confidentiality, including without limitation, Freedom of Information Act 1982; Privacy and Personal Information Protection Act 1998 (NSW), Federal Privacy Act 1988 (Cth),

Seller shall not be liable for any non-performance under or related to this Agreement due to a Force Majeure Event; the right to terminate remains unaffected by this limitation.

13.4    The Buyer may inspect the delivered Products and examine whether they have any defects after the Products are delivered to the place of final destination specified in the Purchase Order. Inspection by Buyer shall neither relieve Seller of its obligations under the Purchase Order or otherwise nor waive Buyer’s rights or remedies provided under the Purchase Order or otherwise. If the Buyer discovers defects in the delivered Products, the Buyer is obliged to notify the Seller of such fact without undue delay from their delivery. If any Product(s) has the defect(s), the Seller has to at Buyer's option:

(i) to supply replacement Product(s) to fully satisfy the given warranties at Seller's sole risk and expense within a reasonable time period specified by the Buyer; or

(ii) to reimburse to Buyer the Price of all such defective Product(s); or 

(iii) to repair such defective Product(s) at Seller's sole risk and expense within a reasonable time period specified by the Buyer; or 

(iv) to repair the Product(s) or cause the Product(s) to be repaired by any third party at Seller's sole risk and expense. 

(v) at Sellers expense purchase product from a third party as a direct replacement of Sellers product.

13.5    Epidemic Failure Warranty - "Epidemic Failure" means that more than 3% of the total installed base of the same type of Products has experienced the same type of failure to conform to the applicable Specifications, and such failure materially affects Product functionality.  Seller warrants that the Products will not experience Epidemic Failure for a period equal to two (2) times the length of the applicable Product Warranty Period (Epidemic Failure Warranty).  Unless otherwise agreed in writing by the parties, if an Epidemic Failure occurs, upon notice from the Buyer who will instruct the Seller to:

(i) at Seller's expense, remove from the field and place in the Buyers storage locations all units of the product under Epidemic Failure Warranty (Covered Products); 

(ii) refund payments made by Buyer for Covered Products; 

(iii) cancel all invoices for the Product; and, 

(iv) at Seller's expense, provide a rapid solution until a replacement Product is available. 

In addition, the buyer may cancel all outstanding P.O.s, Blanket Orders and Releases for the Products without further obligation.

(v) at Sellers expense purchase product from a third party as a direct replacement of Sellers product.

13.6    Seller shall ensure that it have sufficient insurance (e.g. business interruption and liability insurances) to meet the potential warranty and liability agreed in this contract. Seller shall actively work with its suppliers with risk management. Seller shall use commercially reasonable efforts to safeguard that production of so-called critical components is not located to a single location.

13.7 MTBF, the Seller shall ensure that the MTBF for the products within this Agreement meet the specifications and requirements in line with the expectations to the market and application and in line with the Buyers requirements.

14.  INDEMNIFICATION OF BUYER AGAINST CLAIMS BY SELLER’S EMPLOYEES

In the event of any claims whatsoever against the Buyer (including for this purpose every officer and department thereof) at any time, by any workman or employee by the Seller in and for the performance of the Agreement, the Seller shall indemnify the Buyer, its officers or department against such claim, and any costs, charged and expenses in respect thereof.

15.  BUYER LIMITATION OF LIABILITY

15.1    In no event will Buyer’s liability for claims and/or losses suffered or incurred by the Seller arising under or in connection with this Agreement (whether in contract, tort, misrepresentation, negligence, strict liability in tort or by statute or otherwise) or to any third party be greater than the Price.

15.2    Under no circumstances will buyer be liable under this agreement or otherwise for (i) any incidental, consequential, special, punitive, or other indirect damages or (ii) damages in excess of the price of the goods or services that are the subject of the claim. These limitations of liability apply notwithstanding that they cause any remedy to fail of its essential purpose and notwithstanding that buyer knew or should have known of the possibility of such damages.

16.  DELAYS

Time shall be of the essence in relation to all delivery deadlines. If the Seller fails to meet a first confirmed DELIVERY DATE the Buyer may either claim actual damages or Buyer may claim liquidated damages in the amount of three (3) % of the price of the delayed delivery for each calendar day of delay computed from the DELIVERY DATE without grace period, up to an aggregated payment per individual purchase agreement of twenty-four (24) % of the price of the delayed delivery. Additionally, the Buyer may claim any costs of air transportation of the delayed delivery. Such air transportation shall be arranged by Seller and the cost shall be borne by Seller. After 10 days of delay the Buyer may cancel any PURCHASE ORDER without setting any new time limit or grace period. Such liquidated damages represent a genuine pre-estimate by the PARTIES of the expected loss or damage to ORDERING PARTY and are not intended in any way to operate as a penalty. This should extend to all LATE delivered products and parts.

17.  TERMINATION

17.1    If Seller fails to make delivery; fails to perform within the time specified in the Purchase Order; delivers non-conforming Goods; fails to make progress so as to endanger performance of the Purchase Order; then the Buyer may cancel the Purchase Order or part thereof and Seller shall be liable for all costs incurred by Buyer in purchasing similar Goods elsewhere. 

17.2    Buyer may terminate this Purchasing Agreement forthwith in writing if the other Party:

(a)    becomes insolvent, is declared bankrupt, suffers other similar proceeding or discontinues its business; or

(b)    is in breach of any of its obligations under this Purchasing Agreement and has failed to remedy such breach within thirty (30) days after having received written notice of such breach and the intention of the notifying Party to terminate this Supply Agreement if the breach is not timely remedied.

In addition to what is mentioned above Buyer has the right to terminate this Agreement in case Seller sells all or substantially all of its assets, merges or consolidates with a third party or suffers a material change of ownership.

17.3    The termination of this Agreement shall survive any termination with regard to Product(s) already delivered under this Agreement.

17.4    The Buyer is entitled to Claim actual damages from the Seller in case where this Seller has breached this Agreement or any provision thereof.

18.  FORCE MAJEURE

18.1    Any failure of Buyer or Seller to comply with the terms of this Agreement if such failure is caused by circumstances not directly under the control of the party concerned, including but not limited to, failures resulting from Force Majeure, Acts of God, natural disasters, storm, flood, earthquake, explosion, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restrictions, riots, transportation embargoes, boycotts, failures or delays in transportation or the mails, acts of any government, whether national, state, local or otherwise, or any agency thereof, or judicial action, shall be excused for performance continues, provided that the non-performing Party makes a reasonable effort to anticipate the effect of the intervening condition, and promptly performs when said condition ceases to exist. 

18.2    To ensure continual supply from the Seller to the Buyer and in the event of Force Majeure the Seller shall provide the Buyer a full business continuity and disaster recovery plan (BR&DRP) which shall include, but not limited to the following:

BR&DRP Description

● Pre-Planning Activities (Project Initiation) 

● Vulnerability Assessment and General Definition 

● Requirements 

● Business Impact Analysis

● Detailed Definition of Requirements 

● Plan Development 

● Testing Program 

● Maintenance Program 

● Initial Plan Testing and Plan

 

Implementation

● Planning Scope and Plan Objectives 

● Project Organization and Staffing

● Project Control ● Schedule of Deliverables 

● Resource Requirements

● Production schedule plan and priorities. 

19.  INSURANCE

19.1    Seller shall, at its cost, effect and maintain until the risk in the Goods passes to Buyer adequate material loss or damage insurance at least to the full replacement value of the Goods including adequate transit insurance and also covering unloading if Seller is required to unload the Goods. Such insurance shall cover the parties’ respective rights and if required by Buyer shall be in the joint names of the parties.

19.2    Seller shall carry:

(a) Workers Compensation/Employer’s Liability required by law with where legally permitted an indemnity for Buyer (including its client as applicable) and ensure that its sub-Sellers have similarly insured its employees;

(b) Adequate public & product liability insurance and

(c) Professional Indemnity Insurance

(d) Any other insurance pursuant to Clause 19 (if applicable) or as required by law.

19.3 Seller shall provide and maintain insurance policies covering the liability possibly incurred as a result of the Agreement. In addition, he shall keep the Goods insured until delivery has taken place according to the agreed term of delivery according to INCOTERMS 2000. If requested, Seller shall submit insurance certificates. Buyer shall be covered by the insurance as   additional insured, and Seller's insurance company shall waive its right of subrogation against Buyer. 

20.  INSTALLATION WORK & SERVICES

When installation work and services on an external site (“Works”) away from Seller’s workshops or premises form part of the Purchase Order, the following provisions shall apply: (a) All invoices shall be accompanied by a schedule certified by Buyer of the Works completed.  (b) Progress payments shall not be made unless so stated in the Purchase Order.  (c) Seller shall obtain within ten (10) days of receipt of the Purchase Order and keep in effect during the currency of the Purchase Order such insurance as necessary to adequately protect Seller and Buyer in respect of liability under law and shall lodge certificates of currency with Buyer.

21.  SECRECY

21.1 Each party shall keep secret all information received from the other party in connection with this Agreement. Buyer shall, nevertheless, be entitled to transfer such information to a third party to the extent necessary in connection with the production, maintenance, modification, use and inspection of the Goods.

21.2    Seller shall not publish information regarding the Agreement without the Buyer's written approval. Such approval shall not be unreasonably withheld. On Buyer's request, Seller shall return all drawings, calculations and other documentation to Buyer. 

22. OWNERSHIP OF DOCUMENTATION AND COMPUTER ROGRAMS, INDUSTRIAL/INTELLECTUAL PROPERTY RIGHTS

22.1    Any material (including documentation and computer programs) placed at Seller's disposal by Buyer or developed mainly on the basis of such information, is the property of Buyer and shall not be used for other purposes than the execution of the Agreement. On Buyer's request, Seller shall return such documentation and computer programs to Buyer. 

22.2    Any inventions made by Seller during the execution of the Agreement shall be the property of Seller. Buyer shall, nevertheless, have the proprietary right to inventions which mainly are based on technical information received by Seller from Buyer. Seller shall notify Buyer of any such invention, and give Buyer the assistance necessary for Buyer to patent the invention. Buyer shall pay to Seller all reasonable expenses incurred by Seller in connection with such patenting. 

22.3    Seller shall give Buyer an irrevocable, royalty free, non-exclusive right to use all inventions made by Seller during execution of the Agreement and all inventions in Seller's possession to the extent necessary for the production, operation, maintenance or repair of the Goods. 

22.4    Intellectual/industrial property rights to all other results derived pursuant to the Agreement, shall be the sole property of Buyer. 

22.5    It is Seller's duty to ensure that there is no conflict between the Goods or its application and the rights of any third party. Seller shall indemnify Buyer from any claims resulting from the infringement of any rights of a third party. 

23.  EXPORT CONTROLS

23.1    Seller shall comply with any export/re-export regulations in force in Seller's country or the country of origin. 

23.2    Seller shall notify Buyer if the Goods are subject to export restrictions and, at the request of Buyer, give a written statement as to which export restrictions apply and whether a (re-)export license is required for the country of destination in question. 

23.3    Seller shall indemnify and hold Buyer harmless from any breach of export controls regulations in Seller's country or the country of origin caused by Seller's circumstances or by insufficient information from Seller. 

24.  HEALTH, SAFETY AND ENVIRONMENT

Seller shall comply with all applicable rules, regulations and standards regarding health, safety and environment and comply with all requirements from local authorities through all the production phases until the Goods have been delivered. Seller shall comply with requirements from Buyer and Buyer's customer regarding health, safety and environment.

Seller shall hold all necessary permits and comply with all requirements from public authorities for the preservation of the environment at all stages of production up to delivery of the goods. 

25.  HEALTH AND WORKPLACE SAFETY

25.1    Seller must make worker’s safety a priority and provide workers a clean, safe and healthy work environment in compliance with all legally mandated standards for workplace health and safety.

25.2    Seller shall, in the course of supplying any goods or services to the Buyer at any premises, comply at all times with the Buyer and its clientele’s policies and procedures governing access to such premises including any safety and delivery requirements that are applicable to the supply of the Good or Service.

25.3    The Seller shall meet all applicable workplace safety laws, regulations and codes with respect to the products or Services that it may supply from time to time to the Buyer and any of the Buyer’s clientele.

25.4    Negligence on the part of the Seller’s personnel or violations of any Buyer and its clientele policies and requirements as set out in the relevant contractual documents may give rise to termination.

25.5    The cost of complying with this clause shall be deemed to be included in the Price.

25.6    Seller shall notify Buyer promptly, and in any event within 30 days, after any accident or failure involving Seller’s products or Goods that results in personal injury or damage to property and shall cooperate fully with Buyer in investigating and determining causes of such accident or failure.

26.  MARKETING

Seller may not use any reference to Buyer in its marketing without the prior written consent of Buyer. 

27.  ASSIGNMENTS AND SUB-CONTRACTS

27.1    Seller may not assign the Agreement or any part thereof, or conclude any sub-contracts without the prior written consent of Buyer. Limited use of hired manpower, and minor purchases do not require Buyer's consent. 

27.2    Buyer may assign, wholly or in part, its rights and obligations under this Agreement to a third party. 

28.  DRAWINGS

Seller shall ensure that all drawings and data used have been certified for construction and that Goods are manufactured according to such drawings and data or any subsequent revisions thereof

29.  WAIVER AND AMENDMENT

Neither a waiver of any provision of the Purchase Order nor consent to any departure therefrom shall be effective unless given in writing by Buyer.

Except as provided by law or equity or elsewhere in the Purchase Order, none of the provisions of the Purchase Order shall be varied or amended without the prior written consent of the parties.

30.  TIME

If at any time Seller discovers that the time of delivery will not be met, it shall notify Buyer within two (2) working days of discovery stating cause of delay and earliest possible delivery date.  Buyer may thereupon (without prejudice to any other rights) terminate all or part of the Purchase Order.

If Seller is delayed in delivery of the Goods by unforeseeable occurrences or causes such as acts of God, state or nationwide strikes, fire or other causes of a similar nature beyond Seller’s reasonable control, Seller shall notify Buyer within two (2) days of the commencement of each such occurrence or cause and request an extension of time.  If approved by Buyer, any extension of time shall be granted in writing.

Seller shall not be entitled to and hereby waives any and all claims to increased compensation for/or damages which it may suffer from any such unforeseeable causes.

31.  EXPEDITING

Buyer shall be granted access to any and all parts of Seller’s work premises and those of its sub-Sellers.  Seller shall expedite all Goods ordered through sub-purchase orders on a regular basis and visit sub-Seller’s facilities or premises when necessary.

32.  RELATIONSHIP OF THE PARTIES

The relationship between Buyer and Seller is that of purchaser and vendor; the Seller shall under no circumstances be deemed to be agents or representatives of Buyer and Seller shall not enter into any contracts or commitments in the name of or on behalf of Buyer, nor shall Seller bind Buyer in any respect whatsoever.

33.  SELLER’s RESPONSIBILITY FOR ITS EMPLOYEES, AGENTS AND SUBCONTRACTORS

The Seller, in performing its obligations under this Agreement, is acting as an independent contractor. All persons performing any obligations hereunder will be under the Seller’s control and supervision. Personnel supplied by Seller hereunder are not Buyer’s employees, personnel, or agents, and Seller shall assume full responsibility for their acts. Seller shall be solely responsible for payment of compensation to its employees, agents and sub-contractors assigned to perform any obligations hereunder and shall inform them that they are not entitled to any compensation from Buyer (including employee benefits).

34.  RELIANCE CLAUSE

34.1    The Seller accepts that the Buyer, inter-alia, relies on the skill and judgement of the Seller in the description, quality, reliability, function and performance of the Goods/products to be provided, and on the judgement and skill of the Seller for any and all of the Services to be performed.

34.2    The supply of samples of products by the Seller to the Buyer shall not in any way prejudice or affect the reliance placed by the Buyer on the Seller as provided in this clause.

35.  AUSTRALIAN LAW DISPUTES

35.1    This Agreement shall be governed by and interpreted in accordance with the laws of the State of New South Wales, Australia, excluding its conflict of laws principles. The United Nations Convention on Contracts for the international Sale of Goods of 1980 shall not be applicable.

35.2    Arbitration. Any disputes arising out of or in connection with this Agreement, including the disputes concerning its validity, interpretation or annulment, shall be settled through arbitration in accordance with the Australia Centre for International Commercial Arbitration (“ACICA”) Arbitration Rules by one (1) arbitrator appointed by ACICA. The seat of arbitration shall be Sydney, Australia and shall be conducted in the English language.

All awards may if necessary be enforced by any court having jurisdiction in the same manner as a judgment in such court.

Both Parties agree that all arbitral proceedings conducted under this clause shall be kept confidential, and all information, documentation, materials shall be used solely for the purpose of those proceedings.

35.3    If Clause 35.2 requiring arbitration is consider invalid and a court has valid jurisdiction over the parties, then the parties agree that the District Court of New South Wales will have exclusive jurisdiction to determine all disputes and claims arising from, or in connection with this Agreement. Seller consents to the enforcement of a judgment rendered in such court in any action between the parties.

Australia Terms and Conditions of Sale

1. GENERAL AND INTERPRETATION

These standard terms and conditions of sale (“Terms and Conditions”) apply to any and all quotations, offers and acceptances made or given by Eltek Australia Pty Ltd (hereafter referred to as the “Company”) in relation to sale of goods (such term, if applicable, to include any related services) to the purchaser (the “Purchaser”) under one or more contract(s). 

A contract (“Contract”) is entered into when the Company and the Purchaser are in agreement on one or more sales of goods, normally based on an order and order confirmation, and is automatically governed by these Terms and Conditions when the Company submits them to the Purchaser, provides a reference to the relevant web-link or at the occurrence of a contract in the case the Terms and Conditions earlier have been submitted to or a relevant web-link referred to the Purchaser. 

Any deviations from these Terms and Conditions shall be valid only if confirmed in writing by the Company, irrespective of any conditions specified in the Purchaser’s order form, and shall prevail before any general terms or similar of the Purchaser. In the event the parties expressly and in writing have agreed different from these Terms and Conditions, hereunder in the contract, such deviation shall prevail.

Any typographical or other error or omission in quotation, price list, order confirmations, acceptances, invoice or other documents or information issued by the Company will be subject to correction without any liability on the part of the Company.

The Purchaser must not assign or otherwise transfer any contract or any of its rights and obligations under these Terms and Conditions or the relevant contract whether in whole or in part without the prior written consent of the Company. 

If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and Conditions and the remainder of the provisions will not be affected.

Where these Terms and Conditions require writing, e-mail or facsimile, in both cases with a confirming reply from the recipient, shall also be sufficient.

Each party agrees that use of pre-printed forms, such as purchases orders or acknowledgements, is for convenience only and all terms and conditions stated thereon, except as specifically set forth in this Contract, are void and of no effect.

2. VALIDITY OF QUOTATIONS 

Unless otherwise stated quotations from the Company are valid for acceptance within 30 days from quoting date, and are subject to confirmation by the Company at the time of such acceptance.

3. SCOPE AND EXECUTION OF THE CONTRACT

The scope and execution of the contract shall be as specified in the Company’s order confirmation. Material or work not referred to therein shall be charged additionally. 

The Purchaser warrants that it is buying the goods for its own business or commercial use only and not for re-sale or other purposes, unless otherwise expressly permitted in writing by the Company.

4. TECHNICAL DOCUMENTATION AND IPR

Technical documentation and other sales material, such as brochures, descriptions, illustrations, drawings and the like, and all weight data, shall be considered as approximate indications only, provided they have not expressly been confirmed to be binding. 

The Company reserves the right to make any necessary alterations without prior notice. The said documentation may not be used for the construction of the goods or parts thereof unless expressly accepted by the Company. The documentation referred to is the Company’s exclusive property and shall not be made available for a third party in any way.

Copyright and all other intellectual property rights and know how in all literature, manuals and other information supplied by the Company as part of the products or in connection therewith shall remain the sole property of the Company at all times. Nothing in these Terms and Conditions or the contract shall be construed as a licence, transfer or grant from either party to the other. 

The Purchaser may not disassemble or decompile the goods, or on the basis of the received goods or information make any effort to enable itself or any other party or its affiliates to design and/or manufacture identical or similar products. The Purchaser will not share any information of the goods with parties not about to use, purchase or maintain the goods.  

5. RISK

Risk of loss or damage to any part of the goods passes to the Purchaser upon pick up, in the case where the Purchaser is responsible for freight from our warehouse, or upon delivery of the goods where the Goods are transported to the Purchaser by the Company or its carrier.

6. DELIVERY TIME

Delivery time is as specified in the relevant order confirmation. Time is not of the essence and the Purchaser is not entitled to reject an otherwise conforming tender made within a reasonable time. Delivery time is to be considered extended by a time corresponding to the delay, if;

a) the Purchaser has failed to provide any security claimed,

b) the Purchaser has not in due time given the necessary technical specifications or other necessary information for the manufacture or delivery of the goods,

c) the Purchaser or his customer demand alterations to the goods which could cause delays, or

d) the Company is unable to supply the goods for causes beyond the Company’s control (Force Majeure – see section 17).

Sales personnel shall notify the Purchaser of the delay and its duration as soon as possible.                             

In the event of late delivery the Purchaser has neither right to claim indemnity, nor to cancel the contract. 

7. PRICES                                               

Unless otherwise stated prices are in Australian dollars (AUD) (Incoterms 2010). All prices are based on the current import, tax and duty regulations, and exchange rates, on the date of the contract. If these are changed for the goods covered in the contract in the time between the date of the contract and the date of delivery, the Company can invoice any extra cost.

Package, carriage, insurance and other cost (if any) will be charged extra. Goods and Services Tax (GST) will be added at appropriate rate where applicable.

The Company reserves the right to increase the quoted price: 

a) by the amount of increase in the cost due to alterations by Purchaser from the specification on which the quotation or contract was based.

b) if during installation (if installation is agreed), the Company should incur any extra cost due to interruptions, delays, errors or mistakes affecting the installation for which the Company is not responsible, or any other such cost which has not been a part of the quotation or contract.

8. PAYMENT                                      

The Company will issue invoice at delivery. Unless otherwise stated, the default payment terms are net 30 days from date of shipment. Payment is deemed effective when full payment in AUD or another currency offered has been made freely available to the Company. If partial consignments are invoiced, payment shall be made for each individual consignment in accordance with the agreed terms of payment. 

The Purchaser shall not withhold or reduce payments on account of complaints, claims or counterclaims not accepted by the Company, or whilst any claim is being investigated by the Company. Payment shall also be made if unimportant parts are missing, which do not prevent the goods from being used (short shipments etc.)

All trading accounts are subject to prior approval of the Company’s credit department in accordance to Company’s credit policies and practices in effect from time to time. The Company may revise the amount of credit or terms of payment at any time for any reason.

If the Purchaser does not observe the agreed due dates of payment he shall without formal notice be liable to pay interest on overdue amounts from the due date at the rate in accordance to the HSBC Australia indicator lending rate, as quoted from time to time, compounded monthly. Payment of such interest does not release the Purchaser from his obligation to make payments on the agreed dates.

The Company reserves the right to repossess any of the goods in respect of which payment is overdue and thereafter to resell the same and for this purpose the Purchaser hereby grants an irrevocable right and license to the Company’s servants and agents to enter upon all or any of its premises with or without vehicles during normal business hours. This right shall continue to subsist notwithstanding the termination of the Contract.

9. PROPERTY RIGHTS                            

The goods supplied remain the Company’s property until full payment is effected, including any discount rate or accrued interest. The Purchaser is obliged to safeguard and insure the goods and shall not resell the goods before payment is settled. 

The Company reserves the right to reclaim possession (either itself or through a representative) of  the goods in accordance with the law governing these Terms and Conditions if the Purchaser fails to pay the Company in full or exposes the goods to value depreciation during the credit period, and the Purchaser agrees to facilitate such reclaim. 

10. CANCELLATION                  

No cancellation of an order shall be effective unless in writing and accepted by the Company. The Company reserves the right to refuse to accept any cancellation of an order. 

Such refusal has particular relevance to orders to special requirements where processing of goods has been commenced or completed. The Company reserves the right to levy a cancellation charge for cancellations accepted.

11. TESTING AND ACCEPTANCE OF GOODS

Testing of the goods before shipment is, if applicable, carried out as part of the Company’s test procedure. Additional tests shall be agreed specifically, and cost of such to be borne by Purchaser. 

The Purchaser shall examine the goods within 30 days of receiving the shipment, and inform the Company immediately in writing of all defects and deficiencies for which the Company is responsible. If the Purchaser omits to act or file a claim within said time period, then the goods shall be deemed to have been accepted.

12. USE OF GOODS

The Purchaser’s use, storage and transportation of the goods other than in accordance with any manual, instruction or any other information provided by the Company, or as set out on the Company’s website and referred to by the Company to the Purchaser, may damage or reduce the life expectancy of the goods, and the Purchaser therefore agrees to use and handle the goods in compliance with said manuals etc. and general good practise. Any non-compliance may adversely affect the Purchaser’s rights. In the event the Purchaser is permitted to resell or lease/rent out the goods, the Purchaser shall ensure that any user and/or purchaser is informed of and undertakes to comply with said manuals etc.

13. RETURN OF GOODS                             

Goods supplied in agreed quantity and quality may only be accepted returned to the Company if agreed in writing with the Company. Unless stated in such agreement, goods will be credited with invoiced price less 20% to cover administrative expenses (return and general inspection). The Company reserves the right to further deduct cost for special technical inspection and/or to repair the goods when deemed necessary, and will perform reimbursement only after having performed such reasonable inspection.

14. DELIVERY TERMS

Unless otherwise agreed, the Company’s delivery terms are EX Works Belrose NSW (Incoterms 2010). If delays occur in dispatch due to force majeure, the goods will be stored at the Purchasers expense and risk. Complaints regarding transport shall be submitted to the last carrier by the Purchaser immediately upon receipt of the goods or shipping documents. 

15. WARRANTY                                         

See Eltek’s Global Warranty Statement as available at the Company’s web-pages or submitted by the Company to the Purchaser.

16. LIMITATION OF LIABILITY                

The Company is under no liability to the Purchaser or any third party for any injury, damage or loss howsoever caused by the goods or the installation thereof; or liability of any kind whatsoever, suffered by the Purchaser or any third party that arises under, by reason of or in connection with the Contract and/or purchase order hereunder or any related documents of the same subject matter, whether or not the Company was advised of the possibility of such losses or damage; other than for direct physical loss or direct physical damage arising from the sole gross negligence or intentional misconduct of the Company or the Company’s employees up to a maximum of two times the value of the relevant goods, however not exceeding AUD 300,000. 

17. FORCE MAJEURE                              

The Company is entitled to cancel, rescind or vary any contract without liability for any loss or damage if the Company is unable to supply the goods or, in the case of goods to be installed, the Company is unable to complete the installation thereof, as a result of Act of God, fire, flood, severe adverse weather conditions, invasion, war, act of any foreign enemy, martial law, riot, civil commotion, rebellion, act or restraint of governmental authority, lock-out, strike, trade dispute, or any other cause beyond the Company’s reasonable control.

18. IMPORT RESTRICTIONS

The Purchaser acknowledges that the goods may be subject to import control laws and regulations of the country in which the goods are received. The Purchaser agrees to abide by all applicable import laws and regulations

19. TERMINATION

The Company shall be entitled, without prejudice to its other rights and remedies either to terminate wholly or in part any or every contract between itself and the Purchaser or to suspend any further deliveries under any or every such Contract in any of the following events: 

(a) If the Purchaser is in breach of any of its obligations hereunder and in the case of a breach that is capable of remedy fails to remedy the said breach within fourteen (14) days of being given notice by the Company.

(b) If the Purchaser has failed to provide any letter of credit, bill of exchange or any other security required by the Contract.

(c) The Purchaser enters into a deed of arrangement or commits an act of bankruptcy with his creditors or if a receiving order is made up against him or (being a company) it shall pass a resolution or the court shall make an order that the Purchaser shall be wound up (otherwise for the purpose of amalgamation or reconstruction of a solvent company) or if a receiver shall be appointed over any of the assets or undertaking of the Purchaser or if circumstances shall arise which entitle a court or creditor to appoint a receiver or manager or which entitles the Court to make a winding up order or if the Purchaser takes or suffers any similar action in consequence of debt.

(d) Termination of the Contract pursuant to this section shall be without prejudice to the provisions of this agreement and to the rights of the parties accrued or accruing to the date of termination.

UK Terms and Conditions of Purchase

1    DEFINITIONS

1.1    The "BUYER" means Eltek Power (UK) Ltd

1.2    "CONDITIONS" means the Standard Terms and Conditions of Purchase set out in this document and (unless the context otherwise requires) includes any Special Terms and Conditions agreed in writing between the Buyer and the Seller.

1.3     "CONTRACT" means Contract for the Sale and Purchase of the goods and the supply and acquisition of the services.

1.4    "DELIVERY ADDRESS" means that the address stated on the Order.

1.5    "GOODS" means the Goods (including any instalment of the goods or any part of them) described in the Order.

1.6    "ORDER" means the Buyer's Purchase order to which these conditions are annexed.

1.7    "PRICE" means the price of the goods and/or charge for the services.

1.8    "SELLER" means the person so described in the Order.

1.9    "SERVICES" means the services (if any) described in the Order.

1.10    "SPECIFICATION" includes any plans, drawings, data or other information relating to the goods or services.

1.11    "WRITING" includes telex, cable, facsimile transmission and comparable means of communication.

1.12    ANY reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended re-enacted or extended at the relevant time.

1.13    The headings in these Conditions are for convenience only and shall not affect their interpretation.

2    BASIS OF AGREEMENT

2.1    The Order constitutes offer by the Buyer to purchase the goods and/or acquire the services subject to these conditions.

2.2    These conditions shall apply to the Contract to the exclusion of any other Terms and Conditions on which any Quotation has been given to the Buyer or subject to which the Order is accepted or purported to be accepted by the Seller.

2.3    The Order will lapse unless unconditionally accepted by the Seller in writing within seven days of its' date.

2.4    No variation to the Order or these Conditions shall be binding unless agreed in writing between the authorised Representatives of the Buyer and Seller.

3    SPECIFICATIONS

3.1    The quantity, quality and description of the goods and the services shall, subject as provided in these Conditions, be specified in the Order and/or in any applicable specification supplied by the Buyer to the Seller or agreed in writing by the Buyer.

3.2    Any Specification supplied by the Buyer to the Seller or specifically produced by the Seller for the Buyer in connection with the Contract together with the copyright, design rights or any other intellectual property rights in the Specification shall be exclusive property of the Buyer.  The Seller shall not disclose to any third party or use any such specification except to the extent that it is or becomes public knowledge through no fault of the Seller or as required for the purpose of the Contract.

3.3    The Seller shall comply with all applicable regulations or other legal requirements concerning the manufacture, packaging, packing and delivery of the goods and the performance of the services.

3.4    The Seller shall not unreasonably refuse any request by the Buyer to inspect and test the goods during manufacture, processing or storage at the premises of the Seller or any third party prior to despatch and the Seller shall provide the Buyer with all facilities reasonably required for inspection and testing.

3.5    If as a result of inspection or testing the Buyer is not satisfied that the goods will comply in all respects with the Contract and the Buyer so informs the Seller within seven days of inspecting or testing, the Seller shall take such steps as are necessary to ensure compliance.

3.6    The goods shall be marked in accordance with the Buyers' Instruction any applicable regulations or requirements of the carrier and properly packed and secured so as to reach their destination in an undamaged condition in the ordinary course.

4    PRICE OF THE GOODS AND SERVICES

4.1    The price of the goods and services shall be as stated in the Order and unless otherwise so stated shall be:

4.2    Exclusive of any applicable Value Added Tax (which shall be payable by the Buyer subject to receipt of a VAT Invoice) and;

4.3    Inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the goods to the delivery address and any duties impost or levies other than Value Added Tax.

4.4    No increase in the price shall be made (whether on account of increased material labour or transport costs, fluctuation in rates of exchange or otherwise) without the prior consent of the Buyer in writing.

4.5    The Buyer shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Seller whether or not shown on its own Terms and Conditions of Sale.

5    TERMS OF PAYMENT

5.1    The Seller shall be entitled to Invoice the Buyer on or at any time after delivery of the goods or performance of the services as the case may be and each invoice shall quote the number of the Order.

5.2    Unless otherwise stated on the Order the Buyer shall pay the price of the goods and services within thirty days after the end of the month of receipt by the Buyer of a proper Invoice or, if later, after acceptance of the goods or services in question by the Buyer.

5.3    The Buyer shall be entitled to set off against the price any sums owed to the Buyer by the Seller.

6    DELIVERY

6.1    The goods shall be delivered to and the service shall be performed at the delivery address on the date or within the period stated in the Order in either case during the Buyer's usual business hours.

6.2    Where the date of delivery of the goods or of performance of the services is to be specified after the placing of Order, the Seller shall give the Buyer reasonable notice of the specified date.

6.3    The time of delivery of the goods and the performance of the services is of the essence of the Contract.

6.4    A packing note quoting the number of the Order must accompany each delivery or consignment of the goods and must be displayed promptly.

6.5    If the goods are to be delivered or the services are to be performed by instalments the Contract will be treated as a single Contract not severable.

6.6    The Buyer shall be entitled to reject any goods delivered which are not in accordance with the Contract and shall not be deemed to have accepted any goods until the Buyer has had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any latent defect in the goods has become apparent.

6.7    The Seller shall supply the Buyer in good time with any instructions or other information required to enable the Buyer to accept delivery of the goods and performance of the services.

6.8    The Buyer shall not be obliged to return to the Seller any packaging or packing materials for the goods whether or not any goods are accepted by the Buyer.

6.9    If the goods are not delivered or the services are not performed on the due date then without prejudice to any other remedy, the Buyer shall be entitled to deduct from the price or if the Buyer has paid the price, to claim from the Seller by way of liquidated damages for delay 5% of the price for every week's delay up to a maximum of 50%.

7    RISK AND PROPERTY

7.1    Risk of damage to or loss of the goods shall pass to the Buyer upon delivery to the Buyer in accordance with the Contract.

7.2    The property in the goods shall pass to the Buyer upon delivery unless payment of the goods is made prior to delivery when it shall pass to the Buyer once payment has been made and the goods have been appropriated to the contract.

7.3    WARRANTIES AND LIABILITIES

7.4    The Seller warrants with the Buyer that the goods:

7.5    Will be of merchantable quality and fit for any purpose held out by the Seller or made known to the Seller in writing at the time the Order is placed.

7.6    Will be free from defects in design material and workmanship.

7.7    Will correspond with all statutory requirements and regulations relating to the sale of the goods.

7.8    The Seller warrants to the Buyer that the service will be performed by appropriately qualified and trained personnel with due care and diligence and to such high standards of quality as is reasonable for the Buyer to expect in all circumstances.

7.9    Without prejudice to any other remedy, if any goods or services are not supplied or performed in accordance with the Contract the Buyer shall be entitled:

7.10    To require the Seller to repair the goods or to supply replacement goods or services in accordance with the Contract within seven days; or 

7.11    At the Buyers sole option, and whether or not the Buyer has previously required the Seller to repair the goods or to supply any replacement goods or services, to treat the Contract as discharged by the Seller's breach and require the repayment of any part of the price which has been paid.

7.12    The Seller shall indemnify the Buyer in full against any liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by the Buyer as a result or in connection with;

7.13    Breach of any warranty given by the Seller in relation to the goods or the services:

7.14    Any claim that the goods infringe, or their importation, use or resale, infringes the patent, copyright design right, trade mark or other intellectual property rights or any other person, except to the extent that the claim arises from compliance of any other person, except to the extent that the claim arises from compliance of any specification supplied by the Buyer.

7.15    Any liability under the Consumer Protection Act 1987 in respect of the goods.

7.16    Any act or omission of the Seller or its employees agents or subcontractors in supplying delivery and installing, the goods; and

7.17    Any act or omission of any of the Seller's personnel in connection with the performance of the services.

7.18    Neither the Seller nor the Buyer shall be liable to the other or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the goods or services, if the delay or failure was beyond the party's reasonable control.  Without prejudice to the generality of the forgoing the following shall be regarded as cause beyond either party's reasonable control:

7.19    Act of God, explosion, flood, tempest, fire or accident.

7.20    War or threat of War, sabotage, insurrection, civil disturbance or requisition:

7.21    Acts, restrictions regulations, bylaws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority.

7.22    Import or export regulations or embargoes:

7.23    Strikes, lockouts or other industrial actions or trade disputes (whether involving employees of either the Seller or the Buyer or of a third party):

7.24    Difficulties in obtaining raw materials, labour, fuel, parts or machinery:

7.25    Power failure or breakdown in machinery.

8    TERMINATION

8.1    The Buyer shall be entitled to cancel the Order in respect of all or part only of the goods and/or services by giving notice to the Seller at any time prior to delivery or performance in which event the Buyer's sole liability shall be to pay the Seller the price of the goods or services in respect of which the Buyer has exercised its right of cancellation, less the Seller's net saving of costs arising from cancellation.

8.2    The Buyer shall be entitled to terminate the Contract without liability to the Seller by giving notice to the Seller at any time if:

8.3    The Seller makes any voluntary arrangement with its' creditors (within the meaning of the Insolvency Act 1986) or (being a company) becomes subject to Administration Order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction): or

8.4    An Encumbrancer takes possession or a receiver is appointed with any of the property or assets of the Seller; or

8.5    The Seller ceases or threatens to cease to carry on business; or

8.6    The Buyer reasonably apprehends that any of the events mentioned above is about to occur in relation to the Seller and notifies the Seller accordingly.

9    GENERAL

9.1    The Order is personal to the Seller and the Seller shall not assign or transfer or purport to assign or transfer to any other person any of its rights or subcontract any of its obligations under the Contract.

9.2    The failure of either party to the Contract to exercise or enforce any rights conferred by the Contract shall not be deemed to be a waiver of any such right or operate so as to bar the exercise or enforcement thereof at any time or times thereafter.

9.3    Any Notice hereunder shall be in permanent readable form and addressed to the party concerned at his address shown overleaf (or such other address which may have been notified in writing to the other party.)  Every notice shall if properly addressed, be deemed to have been duly served twenty-four hours after being posted.

9.4    Save as is expressly mentioned or referred to herein the Contract supersedes and cancels all previous Agreements and working arrangements whether oral or written express or implied between the parties in respect or in connection with the subject matter thereof.

9.5    If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.

9.6    The Contract shall be in all respects governed by and construed and interpreted in accordance with the Laws of England and the parties hereto submit themselves to the exclusive jurisdiction of the English Court.

UK Terms and Conditions of Supply

1.    GENERAL

    (a)    "The Company" shall mean Eltek Power (UK) Ltd. or its proprietor, subsidiary or any associated Company

    (b)    "Products" shall mean the equipment plant or services which are the subject of this Contract

    (c)    "The Customer" shall mean the person firm or Company who contracts to purchase in full or in part the Products from the Company

    (d)    Any contract entered into by the Company for the supply of Products is subject to these conditions.  Any writing on or attached to any purchase order form document or correspondence shall not be included or implied unless previously agreed upon in writing and signed by an authorised officer of the Company

    (e)    No order for supply arising from a quotation or otherwise shall be deemed to be accepted or constitute a legally enforceable contract with the Company until the Customer's purchase order is accepted by means of a written order confirmation by the Company or until delivery of the Products which ever shall be the earlier

    (f)    No responsibility is accepted by the Company for any inaccuracy or error in orders given by telephone

2.    DESCRIPTIONS AND SPECIFICATIONS

    The descriptions, specifications and illustrations contained on its web-site, catalogues price lists and other leaflets or advertising or descriptive matter produced by the Company shall not form part of the contract. No report representation or statement made by any employee or agent of the Company shall be binding on the Company. Any description or sample given of the Products is by way of identification only and does not constitute a sale by description or sample.

3.    TIME

    Any date or period quoted by the Company for delivery is given in good faith by way of estimate only.  While the Company will endeavour to deliver within the period stated, such date or period is not to be of the essence of the contract and the Customer shall be bound to accept the Products when they become available.  The Company shall not be liable for any delays in transit resulting in any way in respect of late delivery even when the Company has expressly agreed in writing a delivery date, nor shall such failure to deliver on the date or within the period named by the Company be deemed to be a breach of contract

4.    PRICE

    (a)    All prices and terms quoted by the Company or shown on the Company's web-site or any price lists catalogues etc. may be altered without notice and without liability to the Company.

    (b)    Prices of Products, both quoted and printed, are exclusive of VAT.

    (c)    The Company reserves the right at any time prior to delivery of the Products to adjust the price to take account of any increase in the cost of raw materials, labour or services or any currency fluctuations, increases of taxes or duties or any other matters affecting the cost to the Company in complying with the contract

    (d)    The Company reserves the right to impose a handling charge of not less than 15% on returned Products save in circumstances where the Products are returned by reason of defects or shortages which it is the Company's duty under the terms of this Agreement to rectify. 

    (e)    The Company reserves the right to impose a minimum order charge

    (f)    Installation and commissioning will be quoted only against the specific request of the Customer.  In all cases containers, packages and packing materials are chargeable to the Customer and not returnable.

    (g)    The Company reserves the right to amend any accidental errors and omissions in quotations and invoices

5.    PAYMENT

    (a)    Time for payment shall be of the essence

    (b)    The Company reserves the right at any time at its discretion to demand security for payment before continuing with or delivering any order

    (c)    All accounts are payable in full on delivery of the Products unless expressly agreed in writing by the Company.

        (i)    For all credit accounts approved by the Company in writing for Customers in the UK invoices are to be paid in full within 30 days following date of invoice

        (ii)    For all Customers outside the UK payment must be made by confirmed irrevocable letter of credit, payable at site, unless other terms have been agreed in writing by the Company

    (e)    Where the Products are delivered in instalments or in the course of two or more separate deliveries any failure to make such payments due on or before the due date will entitle the Company at its option to treat the contract of sale as voided by the Customer and in such event the Company reserves all rights therein which may have accrued to the Customer prior to such termination

    (f)    In the event of non-payment, late payment or other default by the Customer the Company shall be entitled to recover all costs, including legal costs, thereby incurred together also with interest on the monies outstanding, calculated at 4% above Barclays Base Rate compounded monthly

6.    RISK AND THE PASSING OF PROPERTY

    (a)    Risk in the Products shall pass to the Customer when the Products are delivered to or collected by the Customer or its agents

    (b)    Title in the Products remains vested in the Company and shall only pass from the Company to the Customer upon full payment being made by the Customer of all sums (due on whatsoever account or grounds) to the Company.

    (c)    Notwithstanding the above, the Customer shall, until such time as title shall have passed to him, insure the Products to their replacement value noting the Company's interest on the relevant insurance policy and the Customer shall forthwith, upon request, provide the Company with a certificate or other evidence of such insurance.

    (d)    If before title to the Products passes to the Customer the Customer becomes subject to any of the events listed in clause 24.2 or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Company may have, the Company may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them. 

7.    INSPECTION

    (a)    The Customer is under a duty to inspect the Products on delivery or on collection as the case may be

    (b)    In circumstances where the Company undertakes delivery of the Products, claims for damage in transit or shortage in delivery of the Products will only be considered if the carriers and the Company receive written notification of such damage within three working days of delivery or in the event of loss of Products in transit within fourteen working days of the date of consignment.  When Products are accepted from carriers without being checked the delivery book must be signed "Not Examined"

        If access is not available to the location stated in the contract the Company or their carriers reserve the right to deliver to the nearest convenient location and to notify the Customer of their action

    (c)    In all cases where defects or shortages are complained of, the Company shall be under no liability in respect thereof unless an opportunity to inspect the Products is afforded to the Company before any use is made thereof or any alteration or modification is made thereto by the Customer

    (d)    Subject to clauses 7(b) and 7(c), the Company shall make good any shortage in the Products and where appropriate will replace any Products damaged in transit as soon as it is reasonably able to do so, but otherwise shall be under no liability whatsoever or howsoever arising from such shortage or damage. 

8.    WARRANTY

    (a)    The Company warrants that it has title to and the unencumbered right to sell the Products.  Such warranty specifically includes the Company's ownership of the necessary patent rights and copyright sufficient to enable the Customer to use the Products for any purpose stated.  However nothing in these terms or otherwise shall be deemed to grant to the Customer the right to manufacture or in any way reproduce the Products or reproduce or use any intellectual property rights of the Company or its agents

    (b)    No representation or warranty is given as to the suitability of the Products for any particular purpose and the Customer shall satisfy himself in this respect and shall be totally responsible therefor

    (c)    Where the Company have produced or manufactured Products to the Customer's design the Company shall not accept any liability for design errors

    (d)    All Products supplied shall have such warranty as shall be notified to the Customer on the making of the contract.  Details of such warranty may be obtained from the Company at any time and will be stated in the Company's web-site or on the invoice.  In the event of any discrepancy between the details of such warranty the details set out in the invoice shall prevail.

    (e)    In the case of any Products not manufactured by the Company but supplied by them or incorporated within the Company's Products the Company is unable to provide any warranty but will where possible assign to or pass on to the Customer the benefit of any such warranty that the Company shall itself have received from its own Company

    (f)    In the case of services carried out by the Company it shall rectify any error or omission therein which shall have been notified in writing to the Company within the period specified and which shall have been proved to have been due to the neglect or default of the Company or its agents.

9.    INSURANCE

    Where Products are insured by the Company the Company's liability shall be limited to the amount received by them or the value of the Products, whichever is the less, and the Company shall be under no liability to take proceedings for the recovery of loss or damage.

10.    CUSTOMER'S TESTS

    If the Customer requires tests or inspections to be made that are additional to the Company's standard procedures, the Customer shall be responsible for the costs incurred.  The results of such tests will be certified to the Customer as required.

11.    STORAGE

    (a)    In the event of the Company not receiving forwarding instructions within seven days of notification to the Customer that the Products are ready for despatch, such Products will be stored by the Company at the Customer's risk and expense

    (b)    The Company does not give warranty as to the fitness of any packing for storage purposes or any other purpose other than the transport of the Products to the named contract destination

12.    INSTALLATION OF EQUIPMENT

    (a)    Where the Contract provides both for the supply and installation of Products the Company shall be responsible only for the provision of those items and services specified in the invoice (order acknowledgement). All other ancillary equipment and services required together with all reasonable labour costs shall be the responsibility of the Customer

    (b)    In the event that the Customer shall fail to provide all necessary power sources and other facilities required for the installation of the equipment the Customer shall be solely responsible for any additional costs or expenses incurred

13.    SAFETY

    The Company will supply the Customer's nominated representative with instructions for the proper and normal use of the Products. The production, supply and communication of instructions and warnings to, and the proper training of, the employees of the Customer and all other users of the Products will be the responsibility of the Customer 

14.    LIABILITY

    (a)    Nothing herein shall be deemed to exclude or restrict the Company's liability for death or personal injury resulting wholly from the negligence of the Company

    (b)    The Company shall not be liable for any consequential or indirect loss suffered by the Customer whether this loss arises from a breach of duty in contract or tort or in any other way, including loss arising from the Company's negligence.  Non-exhaustive illustrations of consequential or indirect loss include

(i)    loss of profits

(ii)    loss of contracts

(iii)    damage to property of the Customer or anybody else

(iv)    personal injury to the Customer or anybody else (except so far as such injury is wholly attributable to the Company's negligence)

    (c)    The Customer hereby agrees to indemnify the Company against all claims made against the Company by any of the Customer's employees, Customer's customers or any other person for which liability would have been excluded by this clause if the claim had been made against the Company by the Customer

    (d)    The Company shall not be liable in any way for any damages direct or consequential as a result of use of the Products for any purpose other than that notified in writing to the Company prior to sale, nor for any use not stated in the Company's specifications, nor for any fault or defect arising from the Customer's failure to disclose relevant and pertinent information to the Company.  Where the Customer's requirement for the Products is misrepresented or omitted the Company shall be under no obligation in any manner and responsibility and liability shall pass to the Customer

15.    ON-SITE FACILITIES

    (a)    Where work or services on the Customer's site is to be performed the Customer is to make all necessary provision for the safety comfort and convenience of the Company personnel.  This provision is to include:

(i)    Toilet and washroom facilities

(ii)    Protective clothing that may be necessary by virtue of the Customer's or his agent's activities on site

(iii)    Electrical power for hand tools

(iv)    Telephone facilities

(v)    A competent representative to liaise with the Company personnel

(vi)    Information on site conditions and special regulations

(vii)   Adequate parking facilities on-site

(viii)   A secure area for the storage of tools and other equipment

(ix)     Use of lifts (where available)

    (b)    The Customer must take all due care that is required by the Health and Safety at Work Act or any subsequent legislation

    (c)    Where the Customer or his agent has undertaken part or all of the necessary installation work and such work is not in the opinion of the Company's personnel to the required standard the Company shall not be liable to complete the contract and all expenses incurred by the Company will be payable by the Customer.

    (d)    All additional costs and expenses incurred as a result of the failure of the Customer to comply with the terms of this clause shall be payable by the Customer.

16.    REPAIRS

    If the Customer wishes to return defective Products for repair, the Customer is required to follow the Repairs Procedure (RMA process) set out in the Company's web-site. Products returned for repair should be sent, carriage paid and be clearly labelled with the senders name and address and the RMA number issued by the Company. 

17.    DRAWINGS AND SKETCHES

    The Company reserves the right to charge for the preparation of drawings or sketches prepared either for the submission or any execution of orders.  All such drawings remain the property of the Company

18.    WEEE DIRECTIVE

         The Customer shall exclusively finance the collection and delivery of waste electrical and electronic equipment (WEEE) to the recycler's address specified by the Company, as required by Directive 2009/96/EC and applicable national law.

         This clause applies to all new electrical and electronic equipment (EEE) put on the market by the Company after 13 August 2005 (known as new WEEE) as well as all EEE put on the market before 13 August 2005 (known as historic WEEE) which becomes waste as a result of a purchase of new EEE from the Company after August 2005.

         If the Customer resells the EEE to a third party, the Customer will ensure that this clause in its entirety in included in the contractual arrangements governing the sale to the third party. The Customer agrees to indemnify and keep indemnified and hold harmless the Company and ENVIRON (as the operator of B2BWEEEE-Scheme) from and against all costs and expenses which ENVIRON or the Company incurs or suffers, as a result of direct or indirect breach or negligent performance or failure in performance by the Customer of its obligations in this clause.

19.   FORCE MAJEURE

    (a)    The Company shall not be liable for any failure to deliver the Products arising from circumstances outside the Company's control

    (b)    Non-exhaustive illustrations of such circumstances would be Acts of God, war, riot, explosion, abnormal weather conditions, fire, flood, strikes, lockouts, Government action or regulations, delay by suppliers, accidents, shortage of materials, labour or manufacturing facilities

    (c)    Should the Company be prevented from delivering in the above circumstances it shall give the Customer written notice of this fact as soon as reasonably practicable after discovering it

    (d)    If the circumstances preventing delivery are still continuing six months after the Customer receives the Company's notice then either party may give written notice to the other cancelling the contract

    (e)    If the contract is cancelled in this way, the Company will refund any payment which the Customer has already made on account of the price (subject to deduction of any amount the Company is entitled to claim from the Customer) but the Company will not be liable to compensate the Customer for any further loss or damage caused by the failure to deliver.

20.    EMPLOYMENT

    The Company has an Equal Opportunities Policy but nevertheless reserves the right to employ persons of their choice on all contracts including on-site work.  Subject to this, the Company will use its best endeavours to co operate with site agreements provided this does not conflict with their normal course of work. 

21.    EXPORT

    (a)    The Customer shall be solely responsible for ensuring that any import or other regulations of any country or district to which the Products are to be exported are complied with and the Company shall be under no liability whatsoever should the Products subsequently fail to fulfil the requirements of such regulations

    (b)    The Customer shall inform the Company of any intended further transhipment of the Products to third parties and their proposed use so that the Company may ensure that the contract is in compliance with any export restrictions or embargoes laid down from time to time by the government of the United Kingdom.  In the event that such restrictions prevent the Company from complying with its contractual obligations the contract will be treated as being subject to Force Majeure and dealt with in accordance with clause 19.  If a Customer, knowingly or not, provides misleading information to the Company the Customer shall indemnify the Company against any penalties, fines or other expenses incurred as a result

22.    CANCELLATION

    (a)    If the Customer shall fail to pay the contract price to the Company on the due date or, if an actual person, die or be the subject of an order under the Mental Health Act 1959, or if any distress or execution is levied upon the Customer's property or assets or if the Customer shall offer to make any  scheme or arrangement with creditors or commit any act of bankruptcy or, being a Company, has a receiver appointed for any part of its undertaking or assets or if a resolution for winding up shall be passed, then the Company may treat all sums due or to become due on  any delivery as immediately payable or suspend or cancel further deliveries or require payment in advance therefor or recover any Products which are unsold wheresoever they are stored or treat the contract as repudiated by the Customer but without prejudice to any other rights of the Company

    (b)    Cancellation of the order by the Customer for whatever reason shall entitle the Company to payment of all costs expenses and losses of the Company arising therefrom.  Such notification of cancellation by the Purchaser shall not be deemed to have been accepted by the Company in the absence of specific agreement by the Company in writing to that effect.  In all cases the Company reserves to itself any rights that it may have in law

23.     CUSTOMER'S INSOLVENCY OR INCAPACITY

          (a)    If the Customer becomes subject to any of the events listed in clause 23(b), or the Company reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Company, the Company may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Company without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.

          (b)    For the purposes of clause 23(a), the relevant events are:

                  (i) the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply; or

                  (ii) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer; or

                  (iii) (being an individual) the Customer is the subject of a bankruptcy petition or order; or

                  (iv) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within14 days; or

                  (v) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer; or 

                  (vi) (being a company) a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver; or

                  (vii) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer; or

                  (viii) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 23 (b)(i) to 23(b)(vii) (inclusive); or

                  (ix) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; or

                  (x) the financial position of the Customer deteriorates to such an extent that in the opinion of the Company the capability of the Customer adequately to fulfil its obligations has been placed in jeopardy.

                  (xi) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

24.    NOTICES

    Any notice to be given hereunder shall be in writing and shall be deemed to have been duly given if sent or delivered to the Customer at its address specified in the order or such other address as that it may from time to time notify in writing and shall be deemed to have been served, if sent by first class post, forty eight hours after posting.

25.    ASSIGNMENT

    Neither the Company nor the Customer shall assign or  transfer or purport to assign or transfer the contract or the benefits thereof to any other person without the prior consent of each other

26.    PROPER LAW AND JURISDICTION

    The contract shall be governed by and construed in accordance with English Law and all disputes arising in connection with the contract shall be submitted to the jurisdiction of the English Courts

 

Global Warranty Statement

Eltek warrants to the customer that Eltek’s products will be free from defects in materials and workmanship at the time of shipment and will be in accordance with specifications, which are made part of the sales contract. Eltek’s warranty applies under the following terms and conditions:

  1. The warranty extends for a period of twelve (12) months from date of shipment of the products (unless otherwise mutually agreed between the parties in a separate contract).
  2. Eltek’s sole obligation and liability under this warranty is limited to either repairing or replacing defective products or refunding the purchase price for the defective products (prorated for the period of use), at Eltek’s sole option. When repairing or replacing the products, Eltek may use products or parts that are new, equivalent to new or re-conditioned. All duties, tariffs and customs are the sole responsibility of the customer.
  3. This warranty extends only to, and is only intended for the benefit of the customer (original purchaser), and does not obligate Eltek and shall not be construed to constitute a warranty by Eltek to any natural or legal person other than the customer.
  4. The customer shall at its own risk and cost return defective products or parts of products to Eltek’s repair centre, promptly upon customer’s discovery of the defect in question. Return of the products after repair shall be prepaid by the customer unless otherwise mutually agreed between the parties. If the purchaser requires the repair to be performed outside Eltek's repair center, the customer shall pay the applicable additional cost.
  5. Parts repaired or replaced during the warranty period will be under warranty for the remainder of the warranty period.
  6. Eltek shall not be liable and the customer shall have no rights or benefits under this warranty if any of the following conditions apply:
    1. The product has not been installed, maintained or operated in accordance with the documentation provided by Eltek for that purpose.
    2. The product has not been installed or maintained according to the Requirements for Surge Protection, ref. Eltek document no. 2024623.
    3. The product has not been installed or maintained according to the Requirements for Environmental Protection, ref. Eltek document no. 2038879.
    4. The product has been subjected to misuse, neglect, accident, exposure to environmental conditions not conforming to the product’s specified limits of operation, improper handling or transportation (claims to be handled by consignee), improper installation or maintenance (e.g. use of components), or has been altered, modified or repaired by anyone other than Eltek or its authorized representative.
    5. The product has been damaged as a result of a) normal wear and tear, b) rough handling (including without limitation, defects caused by sharp items, by impact pressure, by collision with an object etc.), c) battery leakage, d) improper use of an electrical source, e) a force majeure event or f) other acts beyond the reasonable control of Eltek.
    6. The product serial number plate has been removed, defaced or altered, or the warranty seal has been broken (where applicable).
    7. The product has been subjected to theft or vandalism.
    8. The software included in the product has been damaged by computer or internet viruses, including but not limited to: bugs, worms, Trojan Horses, cancel bots or damage caused by the connection to other products not recommended for interconnection by Eltek.
    9. The product has been operated beyond rated capacity, operated outside of the product specifications, or used with parts which are not made or recommended by Eltek.
  7. Third party products and services are sold “as-is” without a warranty from Eltek, but may be covered under the manufacturer’s pass-through warranty.
  8. In no event shall Eltek in contract, tort or according to law be liable for any special, indirect or consequential damages such as, but not limited to, loss or corruption of data, loss of use, loss of business or goodwill, loss of revenue, loss of profits, which may result, either directly or indirectly, from defects in products provided by Eltek.
  9. Eltek grants an extended corrosion warranty against rust-through perforation of cabinets which is valid for 3 years from date of shipment. As used herein, “Rust-through perforation” means that the primary functions of the cabinets, being protection of the installed cabinet and mechanical strength and capacity, have significantly deteriorated.
  10. Eltek makes no other warranties to the customer, either express or implied with respect to the products and services.
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