1. The Supplier agrees to sell or provide and Hitachi Construction Machinery Australia Pty Ltd (HCMA) agrees to purchase the Goods or accept the services described in this document. Such terms and conditions constitute the whole of the agreement between HCMA and the Supplier.
2. The goods shall be held by the supplier without risk or expense to HCMA pending delivery to HCMA in accordance with the Purchase Order. Property and risk in the Goods shall pass to HCMA when the Goods have been accepted in accordance with the terms of the Purchase Order.
3a. Upon or after delivery, HCMA may inspect the Goods and/or services and if the Goods and/or services are not strictly in accordance with the Purchase Order or otherwise not in compliance with any term or condition (whether express or implied) of this Purchase Order HCMA may reject the Goods or services.
3b. Upon such rejection HCMA may:
(i) return the Goods to the Supplier or charge the Supplier for any costs or expenses incurred in such rejection and/or return or
(ii) request the Supplier to collect the Goods from HCMA and if within one (1) month the Supplier has failed to collect the Goods, HCMA may charge the Supplier all reasonable storage and/or warehouse charges.
In addition, HCMA shall be entitled to sue the Supplier for any loss or expense incurred or suffered by it as a result of such rejection including loss of profit.
4. The delivery time(s) specified in this Purchase Order are of the essence and if the Goods or services are not received by HCMA before delivery times specified or before the last day mentioned therein, HCMA shall be entitled to reject the Goods and services.
5. HCMA shall be under no duty to inspect the Goods prior to their use and/or resale and neither retention of the Goods, use nor resale shall constitute acceptance of the Goods or services if they are not in compliance with the provisions of the Purchase Order.
6. The Supplier warrants to HCMA that it has clear title to the Goods and that this purchase shall not infringe any right or entitlement including copyright, patent, trademark or design of any third party and the Goods or services are not illegal and the Supplier shall fully indemnify HCMA in the event of any breach of this warranty. The Supplier will upon demand defend and indemnify HCMA against all claims, actions, liability, damage, loss and expense occurring as a result of this Purchase Order and/or use and/or resale of the Goods arising from any breach of any copyright, patent, trademark or design failure of the Goods to comply with any express or implied warranties or alleged violation by the use and/or sale of the Goods of any law, ordinance or administrative order.
7. The Supplier will give HCMA the benefit of any price reductions occurring prior to specified delivery date or actual time of delivery, whichever is the later.
8a. It is a warranty and a condition of this Purchase Order in favour of HCMA that the Goods or services supplied hereunder including any repaired or replaced goods will be free from defects in material design, workmanship and title and will be of merchantable quality and fit for the particular use intended and (if applicable) will be as designated or described in this Purchase Order or any specification or description incorporated herein. Should this Purchase Order relate to the provisions of services then it is a warranty and condition hereunder that the services supplied and any material supplied in connection with those services will be reasonably fit for the purposes intended and will be rendered with due care and of such a nature and quality that they might reasonably be expected to achieve the purpose intended. If it appears to HCMA that the Goods or any services provided hereunder do not meet any of the aforesaid warranties or conditions then at the option of HCMA and upon written notice from HCMA the Supplier shall correct any defects (including non-conformity with specifications) either by repairing any defective goods at the then location of those goods or by making available according to HCMA’s instructions at HCMA’s plant or designated site a repaired or replacement product or merchandise or alternatively, at HCMA’s option this contract shall be rescinded and the Supplier shall be liable to HCMA for damages. If the Supplier fails within 30 days to make a correction requested by HCMA, HCMA shall have the right to correct the defect or arrange to have correction made either of which shall be at the Supplier’s expense. In any event HCMA shall have the option of returning defective goods to the Supplier at the Supplier’s risk and cost. The Supplier shall be liable for costs incurred by or for HCMA of installing any repaired or replacement goods. Any amounts paid by HCMA for returned goods shall be promptly repaid by the Supplier. The risk of loss or injury arising out of or relating wholly or partly to defective goods or services supplied hereunder shall at all times be on the Supplier including consequential loss.
8b. Nothing herein shall be construed to exclude any warranty and/or condition for the benefit of HCMA as purchaser incorporated herein or implied by force of any law or statute of NSW or Australia.
9. Except as otherwise specified herein, the price includes all taxes, duties, and other governmental charges upon the manufacture, importation, sale or transportation of the goods or services described herein. If any tax or duty whether measured by selling price or otherwise is included in or added to the price of the Goods or services hereunder then if all or any part of such tax or duty shall hereafter be refunded to the Supplier the Supplier shall promptly remit to HCMA the amount of such refund.
10. HCMA shall not be liable to the Supplier for any loss incurred by the Supplier due to strike, riot, storm, fire, explosion, Acts of God, war, governmental actions or any other cause suffered by HCMA and beyond its reasonable control and any failure or delay by HCMA in performance of any of its obligations hereunder due to any of the aforegoing clauses shall not be considered a breach of the Purchase Order.
11. This agreement shall be subject to the law of New South Wales, Australia.