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1.
DEFINITIONS: In these Terms and Conditions "CONTRACT" means the
Purchase Order, these Terms and Conditions, any Annexes expressly referred
to in the Purchase Order or Terms and Conditions and any other documents
expressly incorporated by reference in the Purchase Order or Terms and
Conditions, but excludes the Request for Quotation, if any.
"PURCHASER" means the Commonwealth of Australia
"VENDOR" means the Offeror named on the face of the Purchase
Order. "SUPPLIES" means any goods being purchased under the
Contract. "ACCEPTANCE" takes place when Purchaser or his
representative has performed a final inspection of Supplies or Services and
has executed an appropriate 'Acceptance' form. "DELIVERY" unless
otherwise sanctioned in the Purchase Order, takes place when Supplies are
handed over to a carrier at the Vendor's facility or when services are
performed.
2.
PRICES, INVOICES AND DOCUMENTS: 2.1 Prices. All prices under the Contract
shall be F.O.B. point of delivery. 2.2 Payment. Vendor shall submit all of
the following documents to: The Defence Finance Manager, 5th floor, Embassy
of Australia, 1601 Massachusetts Avenue, N.W. Washington D.C. 20036 - Two
(2) regular invoices - one (1) Certificate of inspection, conformance or
compliance, if indicated in the "Inspection Quality Control" Box
on the face of this order - one (1) Carrier(s) or postal receipt as
evidence of delivery. Invoices shall show Purchase Order number, shipping
marks, and gross weights. Certificates of inspection, conformance or
compliance may be endorsed on invoices. Unless otherwise specified in the
Purchase Order payment shall be made after delivery of the Supplies named
in the Contract upon receipt of the complete documents specified above and
subject to the terms of the Contract. Payment may be made on partial
deliveries accepted by Purchaser, when in Purchaser's judgement, the amount
due on such delivery so warrants. In no event shall payment in part or in
whole prejudice any rights of Purchaser, including its rights to inspect
and reject Supplies and Services or to invoke warranties.
3.DISCOUNTS:
In connection with any discount offered, time for payment by Purchaser
shall be computed from the later of these dates (1) the date of delivery,
or (2) the date on which documents referred to in Clause 2.2 meeting all
requirements of the contract are received at the office named in the
Purchase Order. For the purpose of earning the discount, Purchaser is
deemed to have made payment on the day its check is mailed to the Vendor.
4.
NEW GOODS: PACKING AND SHIPMENT: Unless otherwise stated in the Contract,
all Supplies shall be new goods. Unless otherwise stated in the Purchase
Order, the preservation, packaging, packing and marking and the preparation
of any method of shipment of Supplies shall conform with the requirements
of Annex B to this Contract.
5.
INSPECTION: Unless otherwise stated in the Contract, Supplies to be
provided by Vendor shall be subject to inspection both before delivery and
upon arrival in their place of use or storage in Australia, by Purchaser or its
representative at Purchaser's option. Unless otherwise stated in the
Contract only inspection in Australia
shall constitute final inspection, which must precede Acceptance. Except as
otherwise stated in the Contract, Vendor shall meet the standards and
requirements and be bound by the provisions of the non-Alternate clause set
out in Federal Acquisition Regulation 52-246-2 in effect on the date of
this Contract ("INSPECTION OF SUPPLIES-FIXED PRICE (AUG 1996)"),
and Purchaser shall have such rights as the U.S. Government has under that
clause.
6.
DEFAULT: 6.1 If Vendor (1) fails to deliver the supplies or perform the
service within the time specified herein or any approved extension thereof;
(2) fails to comply with any other provision of the Contract: (3) so fails
to make satisfactory progress as to endanger performance of the Contract in
accordance with its terms: or (4) becomes bankrupt, makes an assignment for
the benefit of creditors, goes into liquidation whether compulsory or
voluntary or has appointed a receiver or manager of its property or any
part thereof. Purchaser may, by written notice or default to vendor
terminate the whole or any part of this contract. Purchaser's right to
terminate this Contract under (2), (3) or (4) above may be exercised if
Vendor does not cure such failure within 10 days (or more if authorized in
writing by Purchaser) after receipt of the notice from Purchaser specifying
the failure. Vendor shall notify Purchaser as soon as Vendor has reason to
believe that an event (including an event relating to a subcontractor)
constituting a default has taken place or is about to take place. 6.2 In
the event of such termination, Purchaser may without prejudice to any other
rights arising herein or arising otherwise under law procure supplies and
services similar to those so terminated, and Vendor shall be liable to
Purchaser for any excess costs of such similar supplies and services. In
the event of such termination Purchaser shall have no obligation to pay for
the work done by Vendor, except to the extent payment is expressly required
under this Contract for Supplies and services delivered to and accepted by
Purchaser. If Purchaser terminates part of this Contract pursuant to this
clause, Vendor shall continue the performance of this Contract to the
extent not terminated by the Purchaser 6.3. If this Contract is terminated
as provided in Clause 6.1, Purchaser, in addition to its other rights, may
require Vendor to deliver, as and to the extent directed by Purchaser (1)
any completed Supplies and (2) such partially completed Supplies and
materials, parts, tools, dies, jigs, fixtures, plans, drawings, information
and rights (hereinafter called 'manufacturing materials') as has produced
or acquired for the performance of such part of this Contract as has been
terminated. Payment for completed Supplies shall be at the contract price.
Payment for manufacturing materials shall be a reasonable price based on
the value of such materials in relation to the price of finished Supplies.
6.4. If after notice of termination of this Contract under the provision of
this clause, it is determined for any reason that was not in default, the
rights and obligations of the parties shall be the same as if the notice of
termination had been issued pursuant to the 'Termination for Convenience' clause
of the Contract.
7.
TERMINATION FOR CONVENIENCE: Purchaser shall have such rights to terminate
for its convenience all or any part of this Contract as the U.S. Government
has under the non-Alternate clause set out in Federal Acquisition
Regulation 52.249-2 ("TERMINATION FOR CONVENIENCE OF THE GOVERNMENT
(FIXED PRICE) (SEP 1996)"). In the event of such termination, the
rights and obligations of Purchaser and Vendor shall be as set forth in
that clause.
8.
WARRANTY AS TO SUPPLIES AND SERVICES: Vendor warrants that all supplies and
services shall be free from defects in materials and workmanship and shall
conform to the specification, drawings and samples, if any, and to all
other requirements of this Contract. In addition, without derogation from
the foregoing, standard commercial supplies and services shall be covered
by the most favourable warranties that Vendor gives to any customer for
such supplies or services. Purchaser shall give written notice to Vendor of
any breach of the warranties in this Clause 8 within 12 months (24 months
in the case of latent defects) of delivery of the non-conforming supplies
or services. Within a reasonable time after such notice, Purchaser may
either (1) by written notice require Vendor promptly and at Vendor's
expense, to correct or replace any supplies, services, or parts thereof
(including preservation, packaging, packing and marking) that do not
conform to the requirements of this Contract and pay all shipping costs incident
thereto, or (2) retain such supplies or services or parts, whereupon the
Contract price thereon shall be reduced be an amount equitable under the
circumstances.
9.
CORRECTED OR REPLACEMENT SUPPLIES: Any supplies, services or parts thereof
corrected or furnished in replacement pursuant to Clause 8 shall also be
subject to the provisions of Clause 8 to the same extent as supplies or
services initially delivered. The warranties with respect to such supplies,
services or parts shall run from the date of delivery of such corrected or
replacement supplies or services, and Purchaser shall give written notice
of any breach of warranties within 2 months (4 months in case of latent
defects) of delivery of the non-conforming supplies or services.
10.
PATENT AND OTHER RIGHTS: With respect to supplies manufactured by Vendor.
Vendor shall indemnify and hold harmless Purchaser and its officers, agents
and employees against any damage or liability including costs and
attorney's fees, for infringement or alleged infringement or any patent
copyright, trademark, trade secret or intellectual property right and, if
so requested by Purchaser shall defend at Vendor's expense any suit or
action based in whole or in part on such infringement or alleged
infringement. This indemnity shall not apply unless Purchaser informs
Vendor as soon as practicable, of the suit or action alleging such
infringement and Vendor shall have been given such opportunity as is
afforded by applicable laws, rules or regulations to participate in its
defense. This indemnity shall not apply to (1) an infringement resulting
from compliance with specific written instructions of Purchaser directing a
change in the materials or equipment to be used, or directing a manner of
performance of the Contract not normally used by Vendor; (2) an
infringement resulting from addition to or change in supplies or components
furnished that was made subsequent to delivery or performance or (3) a
claimed infringement that is unreasonably settled without the consent of
Vendor, unless required by final decree of a court of competent
jurisdiction.
11.
CONTINGENT FEES: Except as expressly disclosed by Vendor in its offer no
person or selling agency has been employed or retained to solicit to secure
this Contract upon an agreement or understanding for a commission,
percentage, brokerage or contingent fee, other than authorized bona fide
employees of the Vendor. For breach of this warranty Purchaser shall have
the right to annul the Contract without any liability on the part of the
Purchaser to Vendor, or in its discretion to deduct from the Contract
price, or otherwise recover the full amount of such commission, percentage,
brokerage or contingent fee.
12.
SURVIVAL OF WARRANTIES AND RIGHTS: All the warranties in Clauses 8 through
12 as well as any other express warranties by Vendor shall survive delivery
and acceptance of the supplies or services whether any defect be latent or
patent. The above warranties shall not be in derogation of any other
warranties or rights arising under law.
13.
TAXES: Vendor shall bear the cost of all taxes whether local, state,
federal or other (except Australian Federal Sales Tax, Australian Excise
Tax and Australian Customs Duty) that may be imposed in connection with
performance of this Contract.
14.
RISK OF LOSS OR DAMAGE: INSURANCE: Unless otherwise specified, Vendor shall
bear and be liable for all risk of loss or damage whatsoever (including but
not limited to risk of loss of, or damage to supplies or parts thereof)
until Vendor delivers the supplies as specified in the Contract. Vendor
shall buy no insurance for Purchaser's account.
15.
EXPORT LICENSES: Unless otherwise determined at the time of order,
Purchaser shall seek to obtain all necessary export licenses and Purchaser
shall lodge all licenses with US Customs at the appropriate port of exit.
If Purchaser is denied any such license, or licensing laws or regulations
change, so as to be unacceptable to Purchaser, Purchaser may terminate this
Contract and such action shall be deemed a termination pursuant to the
"Termination of Convenience" Clause of this Contract.
16.
GOVERNING LAW: This Purchase Order shall be governed by the Uniform
Commercial Code as adopted in the State of New York as effective and in force on
the date of this Purchase Order.
17.
Reserved:
18.
DISPUTES: Any dispute, controversy or claim arising out of or relating to
the Contract, or the breach, termination or invalidity thereof, shall be
resolved through arbitration before on arbitrator in the District of
Columbia or other location chosen by the arbitrators, under the rules of
the United Nations Commission on International Trade Law (UNCITRAL) as at
present in force. If the parties cannot agree upon the choice of
arbitrator, the arbitrator shall be appointed by the Executive Secretary of
the International
Center for Settlement
of Investment Disputes, or, if he or she declines or fails within
reasonable time to act, by an "appointing authority" designated
pursuant to the UNCITRAL rules.
19.
VARIATIONS OF QUANTITY: No variations in quantity of any item called for by
this Contract will be accepted unless such variation has been caused by
conditions of loading, shipping, or packing, or allowance in manufacturing
processes, and then only to the extent, if any, specifically authorized by
Purchaser.
20.
CHANGES: Purchaser may at any time, by a written order, make changes within
the general scope of the Contract, in any one or more of the following (1)
drawings, designs or specifications of Supplies (2) method of shipment or
packing of Supplies (3) description of services or time of their
performance and (4) place of delivery of Supplies or performance of
services, and (5) variation in quantity, if any of the changes cause an
increase or decrease in the cost of or the time required for the performance
of any part of the work under Contract, whether changed or not changed by
any such order, an equitable adjustment shall be made in the Contract price
or delivery schedule, or both, and the Contract shall be modified in
writing accordingly. Any claim by the Vendor for adjustment under this
clause must be asserted within 30 days from the date of receipt by Vendor
of the notification of change; provided, however, that Purchaser if he
decides that the facts justify such action may receive and act upon any
such claim asserted at any time prior to final payment under the Contract.
Where the cost of property made obsolete or excess as a result of a change
is included in Vendor's claim for adjustment. Purchaser shall have the
right to prescribe the manner of disposition of such property. Failing to
agree to any adjustment shall be a dispute within the meaning of a clause
of this Contract entitled 'Disputes'. However nothing in this clause shall
excuse Vendor from proceeding with the Contract as changed.
21.
PROPRIETARY INFORMATION: All technical data or information communicated by
Purchaser to Vendor in connection with this Contract is considered
commercial-in-confidence and proprietary to Purchaser and the data and
information shall be used only in performance of the Contract and shall not
be disclosed to third parties.
22.
PRECEDENCE: In the event of any inconsistency, the following documents
shall take precedence in the following order (1) the Purchase Order (2)
these Terms and Conditions (3) Annex B to the Contract; and (4) other
documents incorporated in the Contract by reference.
23.
ASBESTOS: Products containing asbestos shall be completely and individually
enclosed in packaging (EG) plastic and/or cardboard of adequate strength to
ensure that no escape of fibres can occur during handling and stowage of
items. Each package shall have a highly visible permanent warning label
affixed stating ""WARNING - CONTAINS ASBESTOS" or similar.
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