Terms & Conditions

All purchases made are subject to Electric Motor Power Pty Ltd’s Terms and Conditions of Trade.

When an order is placed, this constitutes that you have read and agreed to Electric Motor Power’s Terms and Conditions of Trade as outlined below.

Terms and Conditions of Trade

1. DEFINITIONS

1.1 In this Agreement unless inconsistent with the context or subject matter:

(a) “ACL” means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth));
(b) “Agreement” means these Terms and Conditions of Trade;
(c) “Client” means the applicant identified in the Purchase Order or the Credit Application (as applicable);
(d) “Client’s Address for Service” means the email address of the Client set out in the Purchase Order or the Credit Application (as applicable);
(e) “Credit Application” means the application for credit in the form as approved by Electric Motor Power from time to time (if applicable);
(f) “Credit Terms” means the terms contained in the Credit Application;
(g) “Claim” means any claim, action, demand or proceeding however arising (including under contract, statute, common law or equity) in respect of any Loss or alleged Loss;
(h) “Commencement Date” means the date of commencement of this Agreement determined in accordance with clause 2.2;
(i) “Confidential Information” means information relating directly or indirectly to Electric Motor Power, its assets and the operation and affairs of Electric Motor Power, including without limitation, this Agreement and the Goods and technical data and drawings;
(j) “Electric Motor Power” means Electric Motor Power Pty Ltd ACN 065 126 605 of 1/10 Newcastle Road, Bayswater 3153, Victoria Australia.
(k) “Force Majeure” means an act, omission or circumstance over which Electric Motor Power could not reasonably have exercised control;
(l) “Goods” means any goods supplied by Electric Motor Power to the Client from time to time pursuant to a Purchase Order;
(m) “GST” has the meaning given to it in the GST Act;
(n) “GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(o) “Intellectual Property Rights” means all present and future rights conferred by law in or in relation to copyright, trademarks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable. These rights include without limitation:
i) all rights in all applications to register those rights;
ii) all renewals and extensions of those rights; and iii) all rights in the nature of those rights, such as moral rights;
(p) “Loss” includes (without limitation) the following, whether direct or indirect, special or consequential in nature:
i) loss, damage, costs (including legal costs on a solicitor and own client basis), action or expense of any kind; and
ii) to the extent not covered in the preceding sub-clause, loss of profits, opportunity, use, revenue, goodwill, bargain, production, sales turnover, income, reputation (or damage to it), employment, corruption or destruction of data, clients, loss relating to or in connection with any other contract, business or anticipated savings, reduction in value, any delay or financing costs or increase in operating costs, or any other financial or economic loss; and
iii) anything referred to in the preceding subclauses relating to or arising out of or in connection with: A. personal injury (including death or disease) to the Client; B. personal injury (including death or disease) to any third party; or C. loss of or damage to the property of Electric Motor Power, the Client or any third party; and D. a breach or non-compliance by Electric Motor Power or the Client with any law;
(q) “Price” means the price payable for the Goods calculated in accordance with clause 6;
(r) “Purchase Order” means a purchase order for Goods placed by the Client with Electric Motor Power and which is accepted by Electric Motor Power in accordance with this Agreement. A Purchase Order may consist of a verbal order, an email or a written order;
(s) “Tax” means any sales tax, customs duties, import tax, value added tax, duty, withholding tax, levy, impost or other charge or duty levied by any government in Australia or elsewhere, payable in respect of the supply and sale of the Goods;
(t) “Tax Invoice” has the same meaning as in the GST Act.

1.2 In this Agreement unless inconsistent with the context or subject matter:

(a) A reference to a person includes any other legal entity;
(b) A reference to a legal entity includes a person;
(c) Words importing the singular number include the plural number;
(d) Words importing the plural number include the singular number;
(e) A reference to a party includes the party’s heirs, executors, successors and permitted assigns;
(f) Clause headings are for reference purposes only and must not be used in interpretation;
(g) Where any word or phrase is given a defined meaning any other part of speech or other grammatical form concerning the word or phrase has a corresponding meaning;
(h) A reference to a statute includes all regulations and subordinate legislation and amendments;
(i) References to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail and fax;
(j) A reference to a monetary amount is a reference to an Australian currency amount;
(k) An obligation of two or more parties binds them jointly and each of them severally;
(l) An obligation incurred in favour of two or more parties is enforceable by them severally;
(m) Reference to time is to local time in Victoria, Australia;
(n) Where time is to be reckoned from a day or event, the day or event must be excluded, and reference to a month means a calendar month;
(o) A reference to a business day means any day on which trading banks are open for business in Victoria; and
(p) If any time period specified in this Agreement expires on a day which is not a business day, the period shall expire at the end of the next business day.

2. TERM

2.1 This Agreement commences on the Commencement Date and continue until terminated in accordance with its terms.

2.2 Unless otherwise agreed by the parties in writing, the Commencement Date shall be the date the earliest of:

(a) the Client providing its acceptance to this Agreement;
(b) the Client returning a signed copy of the Credit Application;
(c) the Client providing Electric Motor Power with instructions for a Purchase Order;
(d) the Client returning a signed copy of a Purchase Order to Electric Motor Power; or
(e) the Client making payment of any amount due under this Agreement

3. SUPPLY OF GOODS

3.1 During the Term, Electric Motor Power agrees to manufacture and supply and the Client agrees to purchase the quantities of Goods that the Client orders under clause 4 in accordance with this Agreement.

4. ORDERS

4.1 The Client may order Goods from Electric Motor Power from time to time by submitting a Purchase Order to Electric Motor Power in accordance with the terms of this Agreement.

4.2 Electric Motor Power may accept or reject a Purchase Order in its discretion. Any accepted Purchase Orders shall form part of and be governed by the terms of this Agreement. Electric Motor Power is not deemed to have accepted a Purchase Order until it has issued an order number or (if earlier) Electric Motor Power has notified the Client that its Purchase Order is ready for delivery.

4.3 Once a Purchase Order has been accepted by Electric Motor Power it is not able to be cancelled or amended by the Client except where otherwise agreed by Electric Motor Power in accordance with clause 5.

4.4 Each Purchase Order must:

(a) be given in writing or, if given orally, must be confirmed in writing within two business days;
(b) specify the type and quantity of Goods ordered; and
(c) specify the delivery date on which the Goods are to be ready for collection (which must be at least 14 days after the date of receipt of the Purchase Order by Electric Motor Power).

4.5 This Agreement applies to each Purchase Order made on or after the Commencement Date. Each Purchase Order is an independent contract that will continue in accordance with its terms until that contract has been terminated or fully discharged. Purchase Orders and this Agreement may run concurrently, and termination of a Purchase Order does not automatically terminate this Agreement.

4.6 In the event of any inconsistency between this Agreement and any Purchase Order, the terms of this Agreement will prevail to the extent of such inconsistency.

4.7 Any quotes provided by Electric Motor Power will be valid for 30 days and are merely an invitation to treat and not binding on Electric Motor Power until Electric Motor Power has accepted it (in the same manner as set out under clause 4.2).

4.8 The Client acknowledges that the supply of Goods under accepted Purchase Orders is subject to availability and if, for any reason, Electric Motor Power is unable to proceed with the supply, Electric Motor Power reserves the right to cancel the order (in which case Electric Motor Power will refund all amounts paid for such order). This is the Client’s only remedy in these circumstances and Electric Motor Power will not be liable to pay any other amount to the Client.

5. VARIATIONS

5.1 Should the Client wish to cancel or amend any Purchase Order, then the Client must notify Electric Motor Power within 3 days after placing a Purchase Order of any such request.

5.2 Electric Motor Power may accept or reject such request at its sole discretion. If Electric Motor Power accepts any such request, then Electric Motor Power will provide an additional quote (with additional fees required to be paid as advised by Electric Motor Power) and if accepted by the Client, an invoice will be issued to accommodate these scope changes.

5.3 If Electric Motor Power accepts the request and amends or cancels a Purchase Order, the Client must pay to Electric Motor Power all costs reasonably incurred by Electric Motor Power in fulfilling the Purchase Order up until the date of deemed receipt of the amendment or cancellation (this is in additional to the above quote).

6. PRICING

6.1 Subject to the other terms of this clause, the Price for the Goods will be the price as specified in the Purchase Order pursuant to Electric Motor Power’s current price list as at the date the Purchase Order is accepted by Electric Motor Power.

6.2 The Price quoted will remain firm for a period of 3 months. Following this period, the price may be adjusted to those in effect at the time of shipment.

6.3 Electric Motor Power reserves the right to change the price of the Goods from time to time on providing written notice. All quoted prices exclude GST and freight/ delivery costs.

7. PAYMENT

7.1 The Client agrees to pay the price for the Goods and the costs associated with delivery and insurance of the Goods in accordance with the payment terms as specified in the Purchase Order or as otherwise agreed between the parties in writing. If the Purchase Order includes a deposit payment, such payment must be made upon placing the Purchase Order.

7.2 Electric Motor Power may render an invoice for each Purchase Order to the Client on or before delivery and payment is due on the due date as specified on the invoice in accordance with the Purchase Order. Clients on approved Credit Terms must ensure compliance with the conditions of their Credit Application. If Electric Motor Power deems that, due to the financial position of the Client or otherwise, the continuance of production or shipment on the terms specified herein is not justified, Electric Motor Power may require full or partial payment in advance.

7.3 The Client will also pay to Electric Motor Power, on demand, on a full indemnity basis, all amounts that Electric Motor Power may, at its absolute discretion, expend or incur (including legal costs on a solicitor and own client basis) as a result of the Client defaulting on any of the terms of this Agreement. 7.4 If payment is not made in accordance with the terms of this Agreement, Electric Motor Power at its entire discretion may:

(a) require the Client to pay Electric Motor Power interest on all outstanding monies from the due date until the date of payment at the rate of 2.5% per month accruing daily;
(b) refuse to supply any further part of the Goods to the Client until all outstanding monies, including any accrued interest, is paid in full;
(c) exercise such other rights in accordance with clause 13.2; and/or
(d) terminate this Agreement whereupon the full price for the Goods then supplied, whether or not the time for payment under this Agreement has arrived, will be immediately due and payable.

7.5 Unless otherwise stated, the Price and any other amounts payable by the Client under this Agreement are to be increased by any Tax payable on the supply and such Tax must be paid by the Client at the same time as the Price.

7.6 The Client may not withhold payment or make any deduction from any amount owing without Electric Motor Power’s prior written consent, irrespective of any claim the Client may have against Electric Motor Power for anything or matter whether related to the provision of the Goods or not.

7.7 All amounts owed to Electric Motor Power by the Client under this Agreement become immediately due and payable on termination of this Agreement for any reason, or if the Client becomes subject to an insolvency event.

7.8 All amounts paid by the Client to Electric Motor Power are non-refundable to the extent permitted by law. This is because on a Purchase Order being accepted, Electric Motor Power will take steps to manufacture the Goods and will commence incurring costs and Electric Motor Power may also reject other orders placed by other customers on the basis that the Client has placed their Purchase Order.

8. GOODS SUPPLIED OUTSIDE OF AUSTRALIA

8.1 For Goods supplied outside of Australia, the following payment terms apply:

(a) a deposit of 50% of the total price of the Purchase Order is due within 7 working days of the Purchase Order being placed or the quotation having been accepted by email (whichever is earlier); and
(b) the balance of the total price of the Purchase Price is due within 7 working days after Electric Motor Power notifies the Client that the Goods are ready for delivery. Payment in full of the Purchase Order is due prior to the Goods being dispatched.

8.2 Payments made by the Client under this Agreement are to be made in Australian Dollars. The Client shall be responsible for currency conversion and bank fees applicable to international payments. If the Price is charged in a foreign currency the Client shall bear the risk of any changes in the rate of exchange of the foreign currency compared to the Australian Dollar from the date of conclusion of the contract onwards.

8.3 Electric Motor Power makes no charge for its standard packing for Australian shipment. The Client will be charged for export or other special packing required.

9. DELIVERY OF GOODS

9.1 Delivery of each Purchase Order is to take place in accordance with the delivery instructions as specified in the Purchase Order or as otherwise agreed between the parties.

9.2 The Client must pay all delivery costs associated with the delivery of the Goods to the Client’s nominated delivery address.

9.3 Electric Motor Power may arrange delivery through nominated carriers, however if required (by agreement) the Client may arrange its own carrier. Delivery provided by a nominated carrier of Electric Motor Power must be paid at the same times as other fees under this Agreement. Where the Client arranges its own carrier, then the Client must provide Electric Motor Power with all particulars required for the delivery.

9.4 Any times provided for delivery of the Goods by Electric Motor Power are an estimate only (that run from the date of confirmation) and are nonbinding on Electric Motor Power and subject to change without notice. Whilst Electric Motor Power attempts to deliver all Goods on time, delivery times are estimates only and Electric Motor Power cannot and does not guarantee delivery by such date. In the event of any kind of unforeseen obstacles occurring including, in particular, strikes, lock outs, work stoppages and delays in deliveries of raw materials or due to delay in receipt of supplies from sub-contractors, delivery periods shall be reasonably extended.

9.5 In the event of delay the Client may, once a reasonable extra period has expired as determined by Electric Motor Power (being a period not less than 3 months), cancel the Purchase Order to the extent that the Goods have not been announced ready or dispatched by the date the extra period expires.

9.6 Electric Motor Power will not be responsible for any Losses suffered by the Client in the event of late deliveries or loss or damage relating to such late deliveries. Subject to clause 9.5, late delivery of a Purchase Order does not entitle the Client to:

(a) refuse to take delivery of the Purchase Order;
(b) claim damages or dispute payment of any fees; or
(c) terminate this Agreement.

9.7 Delivery of the Goods is completed when Electric Motor Power makes the Goods available for collection by the nominated carrier (whether arranged by the Client or by Electric Motor Power).

9.8 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this Agreement.

9.9 If the Client fails to take delivery of a Purchase Order on the date for delivery Electric Motor Power will store the Purchase Order until delivery takes place again and may charge the Client for all related costs and expenses (including insurance).

9.10 Where the Client arranges for delivery of the Goods to be sent directly to their nominated delivery address from Electric Motor Power’s overseas factories, the Client will be responsible to pay any import taxes, customs duties, levies and any other amount payable on the delivery and import of the Goods.

9.11 Without limitation to any other clause of this Agreement, where delivery is to be made without signature on delivery, Electric Motor Power accepts no responsibility in the event the delivery site is left unattended at the time of delivery of the Goods.

10. WARRANTIES

10.1 The warranties contained in clause 10.2 are additional to warranties implied by law. Each of the warranties will be read and construed as a sepa warranty and will not be limited by reference to each other. All warranties will be valid at all times during the term of the Agreement and will be continuing warranties which will survive the termirate and independentnation or expiration of this Agreement.

10.2 The Client warrants to Electric Motor Power that as at the date of this Agreement and for the duration of this Agreement:

(a) the information contained in this Agreement is true and correct and it has disclosed all relevant information to Electric Motor Power;
(b) it has the legal right and power to enter into this Agreement;
(c) the execution, delivery and performance of this Agreement by the Client has been duly and validly authorised by all necessary corporate action on its part;
(d) this Agreement is a valid and binding Agreement on the Client, enforceable in accordance with its terms;
(e) the Client is not bankrupt or insolvent and no receiver, liquidator, administrator or receiver and manager has been appointed over any part of its assets and no such appointment has been threatened;
(f) and no proceedings have been brought or threatened for the purpose of bankrupting or winding up the Client;
(g) no partner, director or shareholder of the Client is bankrupt, a discharged bankrupt or in any form of receivership, administration or liquidation; and
(h) it has the capacity to make the payment in accordance with this Agreement.

11. CONFIDENTIAL INFORMATION

11.1 Other than where:

(a) the Confidential Information is in the public domain, except as a consequence of a breach of this clause;
(b) required for a party to perform its obligations under this Agreement;
(c) expressly agreed by all parties in writing; or
(d) required by law; the Client must at all times:
(e) treat and keep the Confidential Information confidential;
(f) not use, or allow the use, of the Confidential Information by any third party;
(g) not disclose or allow the disclosure, of the Confidential Information or the fact of the disclosure of the Confidential Information to any third party.

11.2 Without limiting the generality of clause 11.1, Client must:

(a) only use the Confidential Information in accordance with the instructions provided by Electric Motor Power in writing;
(b) not reproduce or record or make any notes of any Confidential Information except as permitted;
(c) not allow or assist any other person to disclose, use, publish or release the Confidential Information;
(d) put in place and maintain adequate security measures to protect the confidentiality of the Confidential Information being no less stringent than a reasonable person in the Client’s position would use with respect to its own confidential information including:
i) taking reasonable steps to keep the Confidential Information within its possession, power, custody and control;
ii) taking reasonable steps to ensure the proper and secure storage of the Confidential Information; and
iii) taking reasonable steps to protect the Confidential Information from unauthorised access, disclosure or use, or loss, damage or destruction; and
(e) not use or disclose to a third party any aspect of the Confidential Information for any purpose whatsoever.

11.3 The Client must ensure that its officers, employees, advisers and agents also observe the covenants in this clause. The Client must keep a list of all persons to whom the Confidential Information is disclosed and must produce such list to Electric Motor Power on request.

11.4 If requested by Electric Motor Power, the Client must immediately return all Confidential Information, and any copies of the Confidential Information, to Electric Motor Power.

11.5 In the event of a breach or threatened breach of the terms of this clause by the Client, Electric Motor Power will, as between the parties, be entitled to an injunction restraining the Client from committing any breach of this clause without showing or proving actual damage sustained or likely to be sustained by the Client.

11.6 This clause shall not merge on the expiry or earlier termination of the Term.

12. NO ASSIGNMENT

12.1 The Client must not transfer or assign its rights under this Agreement to anyone else, without the prior written consent of Electric Motor Power, which may be granted or withheld by Electric Motor Power in its sole, absolute and unfettered discretion. The Client must provide any information Electric Motor Power requires to consider whether to grant its consent.

12.2 Any change in 50% or more of the shareholding of the Client will constitute a deemed assignment which requires Electric Motor Power’s prior written consent in accordance with clause 12.1.

12.3 The Client acknowledges and agrees that Electric Motor Power may transfer, assign or otherwise dispose of its interest in this Agreement upon giving written notice to the Client.

13. OWNERSHIP AND ASSIGNMENT

13.1 Notwithstanding anything to the contrary express or implied in this Agreement, the parties agree that Electric Motor Power retains full title to the Goods and title will not at any time pass to the Client until the purchase price for the Goods and all other amounts owing in respect of the Goods are paid to Electric Motor Power notwithstanding:

(a) the delivery or collection of the Goods to/by the Client (as the case may be); and/or

(b) the possession and use of the Goods by the Client.

13.2 Prior to ownership passing to the Client, the Client acknowledges and agrees that:

(a) it will not agree, attempt, offer or purport to sell, assign, sub-let, lend, pledge, mortgage, let, hire or otherwise part or attempt to part with personal possession of or otherwise deal with the Goods without the express written consent of Electric Motor Power;
(b) it will, if requested by Electric Motor Power, return the Goods to Electric Motor Power following non-fulfilment of any obligation of the Client (including payment of monies) without limiting any other right Electric Motor Power may have;
(c) it will deliver up the Goods to Electric Motor Power upon demand by Electric Motor Power and give Electric Motor Power or its agents or authorised representatives the right to enter any premises occupied by the Client and any premises where it believes any Goods may be stored (without liability for trespass or any resulting damage) and to use the name of the Client and to act on its behalf, if necessary, to recover possession of the Goods and agrees to indemnify Electric Motor Power and its agents and/or authorised representatives from any damage, injury and/or loss arising from such recovery or attempted recovery of the Goods from the Client’s possession or control;
(d) it holds the proceeds, book debts and accounts receivable arising from selling or hiring of the Goods on trust for and as agent for Electric Motor Power immediately when they are receivable or are received; and (e) Electric Motor Power may recover as a debt due and immediately payable by the Client all amounts owing by the Client to Electric Motor Power in any respect even though title to the Goods has not passed to the Client.

14. LIMITED WARRANTY

14.2 Electric Motor Power undertakes, warrants and represents that the Goods for a limited period of 12 months from the date of delivery (unless otherwise dictated by statutory rights required by relevant consumer law):

(a) will be of merchantable quality; and
(b) free from any defects in material and workmanship, fair wear and tear excluded.

14.3 Other than those expressly set out in this Agreement, and to the maximum extent permitted by law, Electric Motor Power excludes all rights, representations, guarantees, conditions, warranties, undertaking, remedies or other terms in relation to the Goods.

14.4 In order to claim pursuant to this warranty in the period of 12 months from the date of delivery, the Client must comply with the terms of clause 15. Further exclusions of this limited warranty are also contained in clause 15.

14.5 This limited express warranty is in addition to any rights the Client may have under the ACL.

14.6 If the Client is a ‘consumer’ within the meaning of the ACL, then: Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

15. ACCEPTANCE AND DEFECTIVE GOODS

15.1 The Client must inspect all Goods immediately on receipt of the Goods and before use. The Client may reject as defective any Goods delivered to it that do not comply with clause 14 provided that the Client gives Electric Motor Power notice of the rejection:

(a) in the case of a defect that is apparent on normal visual inspection, within the earlier of 2 days of receipt or before the Goods are used; or
(b) in the case of a latent defect, within 7 days of the latent defect becoming apparent and within the warranty period (being 12 months from the delivery date).

15.2 The Client is deemed to have accepted the Goods if the Client fails to give notice of rejection in accordance with clause 15.1.

15.3 Upon such notification of defective Goods, the Client must: (a) provide any photographic evidence requested by Electric Motor Power; and (b) allow Electric Motor Power to inspect the Goods to determine whether they are defective (this includes granting Electric Motor Power unimpeded access to inspect such Goods).

15.4 If the Client is aware or ought reasonably to be aware that the Goods are defective for any reason, then the Client must take all necessary steps to mitigate any loss or damage.

15.5 If Electric Motor Power is notified of a defective Good and agrees it is defective (acting reasonably) then Electric Motor Power will at its election either:

(a) replace the defective Goods with Goods that comply with the terms of this Agreement;
(b) repair the defective Goods and return the Goods to the Client, unless a full refund is required by law.

15.6 Subject to the terms of this clause, Goods will only be dealt with in accordance with this clause provided that:

(a) the Client has complied with the other terms of this clause;
(b) Electric Motor Power has agreed (in its reasonably opinion) that the Goods are defective;
(c) the Goods are returned (if necessary) as soon as possible at the Client’s cost; and
(d) the returned Goods are accompanied by all original delivery documentation.

15.7 Notwithstanding the above clauses, Electric Motor Power will not be liable for or required to accept any return for any defect or damage in any of the following events:

(a) where such defect or damage is caused or partly caused by or arises as a result of the Client (or the Client fails to take reasonable steps to prevent them from becoming defective), fair wear and tear, or any accident or circumstance outside the reasonable control of Electric Motor Power;
(b) where the Client makes any further use of the Goods after giving notice of the defect;
(c) the Client dismantles, modifies, alters or repairs those Goods without the written consent of Electric Motor Power; or
(d) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

15.8 Subject to applicable laws, all transport charges to Electric Motor Power’s service department on the Goods returned for examination shall be prepaid by the Client.

15.9 Once Electric Motor Power has complied with this clause, Electric Motor Power is not liable to the Client and the Client has no further remedy arising out of or in connection with the rejected Goods.

16. CHANGE OF MIND RETURNS

16.1 Subject to the other terms of this Agreement, Electric Motor Power may, in the case of Goods purchased which are a stock item and not specially designed or custom- made for the Client by Electric Motor Power or any of its suppliers, at its discretion accept returns of Goods for “change of mind” reasons within 7 days of the purchase date, provided that the Goods:

(a) have not been altered in any way;
(b) have not been used;
(c) are not discontinued Goods, or Goods no longer stocked by Electric Motor Power; and
(d) are in re-saleable condition.

16.2 A restocking fee of 20% of the purchase price applies to Goods notified by the Customer to Electric Motor Power as “change of mind” returns.

16.3 The Customer is responsible to pay all freight costs associated with return of the Goods.

16.4 Such returns for “change of mind” must be accepted by Electric Motor Power in writing prior to being returned.

16.5 For the avoidance of doubt, Electric Motor Power shall not be obliged to accept any return of Goods for “change of mind”.

17. GOODS LIABILITY

17.2 If any Claim is made against the Client arising out of or in connection with the manufacture of, supply of or any defect in the Goods, the Client must release and indemnify Electric Motor Power against all costs, damages or Claims to the extent that the costs, damages or Claims is due to act or omission of the Client. For the avoidance of doubt, Electric Motor Power will only be liable to the extent that such costs, damages or claims are attributable to Electric Motor Power.

17.2 The Client must notify Electric Motor Power as soon as practicable after becoming aware of the claim, and take all action reasonably requested by Electric Motor Power to avoid, compromise or defend the claim and any proceedings in respect of the claim, subject to the Client being indemnified and secured to its reasonable satisfaction against all costs and expenses which may be incurred in doing so.

17.3 The Goods are manufactured to high standards. Electric Motor Power will not accept responsibility for damage to persons or property as a direct or indirect result of the Client applying the Goods in a manner where risk to persons or property may arise.

18. RISK

18.1 Even if Electric Motor Power retains ownership of the Goods, all risk for the Goods passes to the Client when Electric Motor Power makes the Goods available for collection by the nominated carrier (whether arranged by the Client or by Electric Motor Power and irrespective of whether Electric Motor Power retains ownership of the Goods).

18.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Electric Motor Power is entitled to:

(a) receive payment for the Goods; and
(b) receive all insurance proceeds payable for the Goods. The production of this Agreement by Electric Motor Power is sufficient evidence of Electric Motor Power’s rights to receive the insurance proceeds without the need for any person dealing with Electric Motor Power to make further enquiries.

19. INSURANCE

19.1 The Client shall maintain proper and adequate insurance cover in respect of potential liability loss or damage arising at law in respect of any claim for property damage, personal injury, public liability and professional indemnity relevant to the performance of the obligations of the Client pursuant to this Agreement. Such insurance must include insurance of the Goods from the time that risk passes to the Client.

19.2 The Client shall produce evidence on demand by Electric Motor Power and the satisfaction of Electric Motor Power of the insurance effected and maintained in accordance with this clause

20. INDEMNITY

20.1 Except to the extent caused or contributed to by the negligent act or omission, wilful misconduct or breach of this Agreement by Electric Motor Power, the Client indemnifies Electric Motor Power against any Losses, liabilities, costs, charges or expenses (including any direct, indirect, special or consequential losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by Electric Motor Power arising out of or in connection with:

(a) any Claim made against Electric Motor Power and/or the Client by a third party arising out of or in connection with the use and/or provision of the Goods and/or this Agreement;
(b) any Claim made against Electric Motor Power and/or the Client by a third party for actual or alleged infringement of a third-party intellectual property rights arising out of or in connection with the use and/or provision of the Goods and/or this Agreement;
(c) any breach or negligent performance or non-performance of this Agreement by the Client, including any failure to pay any fees on time;
(d) any event or cause, beyond the control of Electric Motor Power;
(e) any reliance by the Client or a third party on the Goods;
(f) the enforcement of this Agreement; and
(g) any negligent act, omission or wilful misconduct of the Client.

20.2 The Client must make payments under this provision:

(a) in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
(b) in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.

20.3 The indemnities in this clause:

(a) are continuing obligations of the Client, independent from its other obligations under this Agreement and survive termination or expiry of this Agreement; and
(b) are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting the liability of the Client.

21. DIMENSIONAL AND TECHNICAL DATA

21.1 Unless specially stated by Electric Motor Power, Electric Motor Power does not warrant or guarantee the currency, suitability, reliability, availability, timeliness and/or accuracy of dimensions or details of any drawings, illustrations and data contained in any information provided by Electric Motor Power to the Client (including the catalogues). The right is reserved to make any adjustments to correspond to any later standards that may differ.

21.2 Differences in quality, customary in the trade, must be accepted by the Client. This also applies where the Client relies in its order on samples or brochures.

22. EXCLUSION AND LIMITATION OF LIABILITY

22.1 Electric Motor Power provides the Goods on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. Electric Motor Power excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Goods that are not expressly set out in this Agreement to the maximum extent permitted by law. The Client relies on the Goods at its own risk.

22.2 Without limiting the generality of clause 22.1, Electric Motor Power expressly excludes any liability in contract, tort or otherwise for any injury, damage, Loss, delay or inconvenience caused directly or indirectly by:

(a) the Client’s reliance on the Goods;
(b) the delivery or non-delivery of any Goods; and
(c) any event which is beyond Electric Motor Power’s control.

22.3 Electric Motor Power is not liable for any Claim or any Loss arising from any event or cause, beyond the control of Electric Motor Power including but not limited to:

(a) any act or omission of the Client, including any delay caused by the Client;
(b) damage after delivery;
(c) any problem caused by misuse, abuse, wear and tear or abnormal movement;
(d) any defect in, or problem caused by, work materials or goods supplied by the Client;
(e) any problem caused by or contributed to by any modification to the Goods by the Client; or
(f) any defect caused or contributed to by a failure of the Client to follow any procedure recommended by Electric Motor Power or by the manufacturer of any materials used by Electric Motor Power in the Goods.

22.4 Subject to the other terms of this clause, Electric Motor Power’s maximum aggregate liability to the Client in any 12-month period for any loss or damage or injury arising out of or in connection with the manufacture and supply of Goods under this Agreement, including any breach by Electric Motor Power however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual amounts paid by the Client under this Agreement in the 12-month period preceding the matter or event giving rise to the claim.

22.5 Nothing in this Agreement is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of Electric Motor Power in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.

22.6 If Electric Motor Power is liable to the Client in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, Electric Motor Power’s total liability to the Client for that failure is limited to, at the option of Electric Motor Power:

(a) the replacement of the goods or the supply of equivalent goods; or
(b) the repair of the goods; or
(c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(d) the payment of the cost of having the goods repaired.

22.7 Without limitation to the other terms of this Agreement, Electric Motor Power excludes any liability to the Client, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Agreement.

23. INTELLECTUAL PROPERTY

23.1 Pre-Existing IP

(a) Each party acknowledges that the Intellectual Property Rights of any materials developed by a party prior to the Commencement Date or that is created independently of this Agreement (together the “Pre-existing IP Rights”) remain the sole property of the owner. Ownership of Pre-existing IP Rights remains unchanged by this Agreement, other than as expressly set out in this Agreement.
(b) The Client grants Electric Motor Power a worldwide, non-exclusive, royalty free, non-transferable licence to use the Pre-existing IP Rights and such Client Materials (as defined below) owned by it for the sole purpose of the manufacture and supply of the Goods.

23.2 Client Materials

(a) Electric Motor Power acknowledges that ownership of all “Client Materials” (being all works, designs or materials supplied by (or on behalf of) the Client for use in relation to (or incorporation into) the manufacture and supply of Goods, shall remain vested in the Client and/or its licensors (as the case may be).
(b) The Client warrants that such Client Materials: i) will not breach any third party rights (including any third party Intellectual Property Rights); ii) will not, when used by Electric Motor Power, cause Electric Motor Power to be liable to any third party (including for any payments of royalties).

23.3 Electric Motor Power IP

(a) The Client acknowledges that Electric Motor Power shall retain all title, interest and rights (including Intellectual Property Rights) which subsist in or which may be obtained from the following:
i) any material Electric Motor Power creates which is based upon or derived from the Client Materials or any Intellectual Property Rights owned by or licensed to the Client or is made to the design or at the direction of the Client (including without limitation the drawings, designs and technical information created by Electric Motor Power);
ii) the Goods (including the drawings, designs and technical information connected with the Goods); and
iii) any additional or further intellectual property created, formulated or discovered during the Term by either party in connection with the Goods (including anything incidental to the above-mentioned drawings, designs and technical information), (collectively the “Electric Motor Power IP”).
(b) The Client undertakes not to:
i) take or permit or omit any action which would or might: A. invalidate or put in dispute Electric Motor Power’s title to Electric Motor Power IP or any part of it; B. oppose any application for registration or invalidate any registration of Electric Motor Power IP or any part of it (including without limitation a registration of Electric Motor Power IP as a patent worldwide); C. support any application to remove or undo Electric Motor Power’s title in Electric Motor Power IP or any part of it; or D. assist any other person directly or indirectly in any of the above;
ii) use, copy, reproduce, distribute, export, adapt, alter, modify, translate, create derivate works, or publicly display any of Electric Motor Power IP anywhere in the world, without the prior written consent of Electric Motor Power. This includes without limitation publishing such Electric Motor Power IP in any marketing materials and catalogues.
(c) The Client will promptly sign all documents and do all things necessary to register, vest or transfer any interest or ownership in such additional or further intellectual property to Electric Motor Power.
(d) In the event Electric Motor Power provides the Client with access to Electric Motor Power IP and/or Confidential Information, Electric Motor Power grants the Client a revocable, non-exclusive, non-assignable or transferable licence to use Electric Motor Power IP and/or Confidential Information solely for the purpose of fulfilling its obligations under this Agreement during the Term.

23.4 Continuous Obligations The obligations contained in this clause 23 shall endure for so long as a party shall have an interest in any or all of its Intellectual Property Rights.

24. TERMINATION

24.1 Either party may terminate this Agreement without cause at any time on giving the other party 90 days’ written notice.

24.2 Electric Motor Power may in its absolute discretion, by written notice to the Client, immediately terminate this Agreement or one or more Purchase Orders (and shall have no liability for any Loss suffered by the Client due to the termination):

(a) if the Client fails to make payment in accordance with clause 5;
(b) if the Client becomes insolvent;
(c) if the Client commits an act of bankruptcy or is made bankrupt;
(d) if the Client makes a composition or other arrangement with creditors;
(e) if the Client assigns assets for the benefit of creditors generally;
(f) being a company, if the Client enters into a deed of company arrangement or has a controller, administrator, receiver or receiver and manager appointed;
(g) being a company, if the Client goes into liquidation;
(h) being a partnership, if the Client has a receiver or a receiver and manager appointed;
(i) in the event of Force Majeure (such as if there are issues with Electric Motor Power’s supplier and Electric Motor Power is unable to supply the agreed Goods); or
(j) if the Client breaches any warranty or obligation contained in this Agreement or a Purchase Order and fails to rectify the breach within 7 days of being given a notice to do so.

24.3 The Client may terminate this Agreement if Electric Motor Power breaches the terms of this Agreement and fails to rectify the breach within a reasonable time (being no less than 14 days) of being given a notice to do so.

24.4 The Client may terminate an individual Purchase Order if Electric Motor Power breaches the terms of that Purchase Order and fails to rectify the breach within a reasonable time (being no less than 14 days) of being given a notice to do so.

24.5 Upon termination of this Agreement, all existing Purchase Orders shall automatically terminate.

24.6 Upon termination of this Agreement and/or a Purchase Order:

(a) the Client shall be liable to pay Electric Motor Power for all Goods supplied by Electric Motor Power under such Purchase Orders up until the date of termination, and such amounts shall be a debt immediately due and owing;
(b) subject to clause 24.6(c), if the Goods have not been supplied, Electric Motor Power shall refund those Purchase Orders, subject to a 20% restocking fee for any Goods.

24.7 The rights and remedies of the parties contained in this clause 24 are in addition to any other rights and remedies by law, in equity or under this Agreement

24. GENERAL

25.1 Electric Motor Power may vary the terms of the Agreement at any time and will notify the Client of the variation by providing 30 days written notice to the Client at the Client’s Address for Service.

25.2 Any notice required to be given in accordance with this Agreement is deemed to be sufficiently given if provided to the Client’s Address for Service or Electric Motor Power’s Address for Service (as the case may be) and, if it is:

(a) delivered by hand, upon which the time of giving notice will be the time of delivery;
(b) sent by pre-paid post, upon which the time of giving notice will be two (2) business days after the date of postage;
(c) sent by email, upon which the time of giving notice will be the time shown on the email generated by the sending machine identifying proof of transmission to the designated email address.

25.3 The following will constitute proof of receipt:

(a) if sent by registered post, proof of posting by registered post;
(b) if sent by email, proof of sending.

25.4 This Agreement is governed by the laws of Victoria and the Commonwealth of Australia which are in force in Victoria.

25.5 The parties submit to the jurisdiction of the Courts of Victoria, relevant Federal Courts and Courts competent to hear appeals from them.

25.6 This Agreement contains the entire understanding and agreement between the parties as to the subject matter of this Agreement.

25.7 All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this Agreement are merged in this Agreement and are of no further effect.

25.8 No oral explanation or information provided by a party to another affects the meaning or interpretation of this Agreement or constitutes any collateral agreement, warranty or understanding.

25.9 No waiver or amendment of a provision of this Agreement is binding unless made in writing and signed by both parties.

25.10 The parties must execute and deliver all documents and must do all things as are necessary for the complete performance of their respective obligations under this Agreement.

25.11 If a provision of this Agreement is void or unenforceable it must be severed from this Agreement and the provisions that are not void or unenforceable are unaffected by the severance.

25.12 The rights and remedies of a party to this Agreement are in addition to the rights or remedies conferred on the party at law or in equity.

25.13 This Agreement may be executed in any number of counterparts and when executed communication of the fact of execution to the other parties may be made by sending evidence of execution by fax or electronic communications including email.

25.14 Where this Agreement is executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.

25.15 The contra proferentem rule and other rules of construction will not apply to disadvantage a party whether that party put the clause forward, was responsible for drafting all or part of it or would otherwise benefit from it.

25.16 Time is in all cases and in every respect of the essence of this Agreement.