General Sales Terms
Below you will find the General Terms & Conditions for sales and deliveries from Pixeltec Dynamics Pty Ltd.
1. Sales Agreement
The sale of products by Pixeltec Dynamics Pty Ltd (“Pixeltec Dynamics”) is governed by these terms and conditions (“Terms & Conditions”). Pixeltec Dynamics’ offer to sell products to the buyer (“Buyer”) is expressly limited by Buyer’s acceptance of these Terms & Conditions, as evidenced by Buyer’s issuance of a purchase order for product(s), or Buyer’s acceptance of any product under the purchase order, or Buyer’s payment for any product under the purchase order. Terms, if any, included on any Buyer’s purchase orders, acknowledgment forms or other documents shall not apply and are hereby voided, except any such terms that are expressly agreed to in writing by Pixeltec Dynamics.
Any offers to sell products by Pixeltec Dynamics must be in writing to be valid, and all such offers shall be valid for thirty (30) days from issuance, unless otherwise set forth in such offer. Such offers shall be deemed accepted only upon Pixeltec Dynamics’ receipt of Buyer’s written acceptance, provided that Pixeltec Dynamics receives such acceptance within one (1) week of the expiration of such time limit (such accepted offer, an “Order”).
Pixeltec Dynamics shall not be liable for any errors or miscalculations in Buyer’s Orders.
Buyer may not cancel any Order without Pixeltec Dynamics’ prior written approval, such approval at Pixeltec Dynamics’ sole discretion. In the event Pixeltec Dynamics expressly agrees in writing to permit Buyer to cancel an Order, Buyer will compensate Pixeltec Dynamics for all costs and losses attributable to the cancellation. Subject to the warranty set forth in Section 9, products purchased under these Terms & Conditions are not returnable.
2. Prices
All prices include air freight packing, but exclude (and Buyer shall be solely responsible for) costs of loading, shipping, delivery, insurance, installation and commissioning. Prices do not include any fees, taxes or duties relating to the shipment and delivery of any of the products, including without limitations value-added tax (GST), duty, import and export tariffs and other forms of taxes and excise duties in Australia and New Zealand.
If the currency fixed in an Order is devaluated, such that the associated intenational exchange rate varies by more than two percent (2%), Pixeltec Dynamics may, at its sole discretion, suspend all performance under the Order and notify Buyer of any price adjustment resulting from the devaluation. Buyer must then notify Pixeltec Dynamics in writing within eight (8) days of the date of Pixeltec Dynamics’ notification whether Buyer wishes to purchase the products at the adjusted price. If Buyer fails to notify Pixeltec Dynamics during such 8-day period, then Buyer’s order will be automatically cancelled. Pixeltec Dynamics shall not be liable for any costs or losses of Buyer attributable to such cancellation.
3. Delivery Time
The estimated date of delivery shall be stated in Pixeltec Dynamics’ initial offer to sell products to Buyer and Pixeltec Dynamics will use commercially reasonable efforts to deliver the products within the estimated time to the extent possible. Delivery dates are estimates only and Pixeltec Dynamics does not guarantee delivery of products on or by any estimated delivery date. In no event shall Pixeltec Dynamics be liable to Buyer for any costs, fees, penalties or price reductions as a result of any failure to deliver products in accordance with any estimated delivery dates.
Partial deliveries by Pixeltec Dynamics are permitted unless otherwise upon agreed in writing by the parties.
4. Delivery
Delivery shall be made Ex Works (EXW) (Incoterms 2010), Pixeltec Dynamics’ shipping point. Unless otherwise agreed upon by the parties in writing, Buyer shall arrange for transportation and transport insurance. If Buyer fails to arrange for transportation, Pixeltec Dynamics will choose a method of transportation that it deems appropriate. In all cases Buyer is responsible for all expenses involved in the shipment and delivery of products (including without limitation loading, freight, shipping, insurance, forwarding and handling charges).
5. Title Transfer
Title to products shall pass to Buyer as soon as the products have been placed with a transport agent.
6. Drawings, Descriptive Documents, etc.
Pixeltec Dynamics reserves the right to alter measurements and dimensions as well as the design and description of any products. All data included in catalogues, prospects, circulars, advertisements, illustrated matter and price lists are approximate and shall not be binding unless otherwise agreed upon in writing by the parties. Drawings, descriptive documents, parts lists and other documentation (collectively, “Documentation”) provided or made available to Buyer by Pixeltec Dynamics are confidential information of Pixeltec Dynamics and may be used by Buyer only in connection with the use of the products. Buyer may not copy Documentation or disclose Documentation to any third party.
7. Use of Pixeltec Dynamics’ Products
Buyer acknowledges and agrees that the products must be used in accordance with all instructions provided by Pixeltec Dynamics and, where stated, products must be operated only by personnel who have received the appropriate training. Any Pixeltec Dynamics products that are to be connected to an electricity supply must be operated only by appropriately trained and qualified personnel, and must not be made available to any personnel without the proper training and qualifications.
8. Rights & Software
Buyer shall not copy software supplied by Pixeltec Dynamics or any related documentation, other than as is necessary for back-up copies. Buyer shall not assign any rights in the software. Pixeltec Dynamics grants to Buyer a limited, non-exclusive license to use the software provided with the products solely for the purpose of operating the products in accordance with Pixeltec Dynamics’ written documentation. Not withstanding that title to the products may pass to Buyer, Pixeltec Dynamics shall remain the exclusive owner of all intellectual property rights of whatever nature including, without limitation, copyrights, patents and patentable inventions, know-how, trade secrets, trademarks and design rights (whether registered, registrable or otherwise) embodied in or otherwise relating to the products (including any software contained therein). Unless otherwise expressly agreed in writing by Pixeltec Dynamics, all rights (including all intellectual property rights) in and to any customizations, modifications or enhancements made by Pixeltec Dynamics to the products or the software and any design or development work undertaken by Pixeltec Dynamics, whether for or on behalf of Buyer, shall be the exclusive property of Pixeltec Dynamics. Other than as permitted by applicable law, Buyer shall not reverse engineer the products or any part thereof. Buyer shall not remove any proprietary notices and/or branding contained in or otherwise affixed to the products.
9. Warranty, Remedying Defects & Shortcomings
For a period of one (1) year following the date of delivery, and subject to the other provisions of this Section 9, Pixeltec Dynamics warrants that all new products that are both (a) manufactured by Pixeltec Dynamics’ suppliers and (b) purchased directly from Pixeltec Dynamics shall be free of material defects in materials and workmanship. Buyer’s sole and exclusive remedy, and Pixeltec Dynamics’ sole and exclusive obligation, in the event of any failure of this warranty shall be for Pixeltec Dynamics to, at its option, repair or replace such products free of charge. In no event shall Pixeltec Dynamics be liable for ordinary wear and tear. For probes, fibers and similar accessories produced by Pixeltec Dynamics’ suppliers, the foregoing warranty shall apply only for a period of three (3) months following the date of delivery.
Pixeltec Dynamics does not provide any warranty for third party parts, components or products (including without limitation computers, lasers, traverses, and cameras) that are not manufactured by Pixeltec Dynamics’ suppliers. Such parts, components or products may be warranted by third parties on a “pass through” basis.
The foregoing remedies shall not apply to any product failure caused in whole or in part by (i) Buyer’s failure to operate, maintain or service the products in accordance with Pixeltec Dynamics’ Documentation, (ii) any alteration, modification or repair made to the products other than by Pixeltec Dynamics, or (iii) use of the products for a purpose other than that for which it is intended.
In order to get the benefit of the foregoing warranty, Buyer must immediately inspect the products upon receipt and notify Pixeltec Dynamics in writing immediately after discovering any defect or shortcoming. Buyer shall not ship products back to Pixeltec Dynamics for any reason without Pixeltec Dynamics’ prior written consent. Not withstanding such consent, Pixeltec Dynamics reserves the right to inspect the products at its facility and to refuse, at its sole discretion, to accept the return of any item if Pixeltec Dynamics determines that the products’ warranty is not applicable for the reasons set forth above. Any defective products or parts forwarded by Buyer to Pixeltec Dynamics for repairs or replacement, shall be carriage paid and at Buyer’s risk. Buyer must clearly indicate the nature of the defect or shortcoming.
The remedy obligations of this Section 9 shall apply to any replacement products or parts only for the same duration of time as for the replaced products or parts.
10. Limitation of Liability
Pixeltec Dynamics shall not be liable under any contract, tort, strict liability, negligence or other legal or equitable claim or theory for any special, incidental, consequential or indirect damages or for loss of goodwill or business profits, lost revenue, work stoppage, computer failure or malfunction, or for any and all other exemplary or punitive damages arising hereunder or from the use of products, including, without limitation, any such loss or damage relating to personal injury or property damage, even if Pixeltec Dynamics has been advised or was aware of the possibility of such loss or damages. In no event shall Pixeltec Dynamics’ total aggregate liability for any and all damages, losses or liabilities arising hereunder or from the products exceed the amounts actually received by Pixeltec Dynamics from Buyer with respect to the product giving rise to the liability. Buyer shall indemnify Pixeltec Dynamics for any liability arising from Buyer’s (including its employees’ and agents’) use of the products sold (directly or indirectly) by Pixeltec Dynamics.
11. Payment
Payment shall be due on the date indicated in Pixeltec Dynamics’ invoice.
For late payments, Pixeltec Dynamics may, at its sole discretion, charge interest at the market rate in force in Australia and New Zealand accruing from the date the payment was due until payment thereof in full together with such interest. The market rate of interest shall be defined as lesser of two percent (2%) above the prime rate as reported in The Wall Street Journal, Eastern Edition, and the maximum rate permitted by applicable law. Buyer may not withhold or set off any payment as a consequence of any counterclaims of Buyer.
12. Other Agreements
These Terms & Conditions shall apply to all sales by Pixeltec Dynamics and may only be modified or amended by a writing executed by an authorized officer of Pixeltec Dynamics.
