Terms of service

Supply Agreement

1.  Definitions and Interpretation.

a.      Where used in this Agreement:

i.      Agreement” means this agreement, and each Contract formed in accordance with the terms comprised herein.

ii.     “Authorised Representative” means any person who duly authorised to sign on behalf of the Buyer or EA (as applicable).

iii.   “Buyer” means any individual, person, entity, company, firm, partnership or organization that purchases Products from EA.

iv.   “Consequential Loss” means any loss, which does not arise naturally and according to the usual course of things, that is suffered or incurred by a party as a result of a breach of this Agreement by the other party or other event giving rise to the loss, whether or not such loss may reasonably be supposed to have been in the contemplation of both parties, at the time they entered this Agreement, as the probable result of the relevant breach or other event

v.     “Consumer” means any individual, person, entity, company, firm, partnership or organization who is acting as a consumer and for purposes not related to his or her trade, business or profession.  

vi.   “Contract” means the Purchase Order submitted to and accepted by EA.

vii.  “Contract Date” means the date upon which a Purchase Order is accepted by EA.

viii. “E-System” means the Product ordering website operated by EA currently located at the following URL:

www.endeavouraerospace.com.au

ix.   “Force Majeure” means, without limitation, any acts of God, government, war, terrorism, riot, fire, floods, earthquakes, explosions, strikes, lockouts, cessation of labour, trade disputes, breakdowns, accidents of any kind or any other causes which are beyond the reasonable control of a party

x.                    “Goods” means any Supplier’s goods, storage contracts or any instalment or parts thereof, which are supplied by EA to Buyer pursuant to a Contract, including any Supplier documentation related thereto.

xi.   “Products” means any combination of Goods, Special Order Goods and Services which are supplied by EA to Buyer pursuant to a Contract.  

xii.  “Purchase Order” means Buyer’s written or electronic order for Products and shall include any order that Buyer places online through the Website or transmits via email or facsimile

xiii. “Services” means any Supplier’s services including storage which are supplied by EA to Buyer pursuant to a Contract.

xiv. “Special Order Goods” shall mean any Goods that are custom ordered or configured to Buyer’s specifications, or otherwise designated as special-order Goods by EA

xv.  “Supplier” means the supplier, licensor, publisher, manufacturer or other third-party provider of Products.

xvi. “Warehousing Services” means any storage related services provided by EA including storage and delivery of Products by EA in accordance with clause 17.

xvii.                 “Warehousing Fee” means the fee charged by EA for the Warehousing Services.

xviii.               “EA” Endeavour Aerospace Pty Limited ACN 670 052 392, 1 Mitchell Road Rose Bay NSW 2029.

xix.  “EA Services” means the order and delivery of the Products as described in a Contract.  

b.      In this agreement unless the context otherwise requires:

i.               words importing any gender include every gender;

ii.              words importing the singular number include the plural number and vice versa;

iii.            words importing persons include firms, companies and corporations and vice versa;

iv.             references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this agreement;

v.              reference in any schedule to this agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;

vi.             any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;

vii.           the headings to the clauses and schedules of this agreement are not to affect the interpretation;

viii.          any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and

ix.             the word "including" (and related forms including "includes") will be understood as meaning "including without limitation".

 

2.  General Terms of Order & Sale

a.      Every Contract between EA and Buyer shall be subject to this Agreement. No additional or alternative agreement or any alteration to this Agreement proposed by the Buyer contained or referred to in a Purchase Order or other form submitted to EA shall be deemed to apply unless they are expressly accepted in writing by an Authorised Representative of EA and the Buyer with respect to that Purchase Order. Any amendment or modification specific to a Purchase Order must be made in writing and signed by authorized representatives of the Parties. Once signed, the aforementioned amendment will take priority over the terms of this Agreement to the extent of any inconsistency.

b.      This Agreement commences on the date that the Purchase Order is accepted by EA and continues until terminated in accordance with its terms.

c.      Notwithstanding the foregoing, Buyer agrees that EA’s provision of a price quotation, price list or any other information shall not be considered an offer by EA to sell Products at those prices or subject to any other terms. Only a Purchase Order submitted by Buyer shall constitute an offer to contract subject to this Agreement, however, a Purchase Order shall not be deemed a Contract unless and until the earlier date upon which: (i) written confirmation is provided by EA, (ii) a Purchase Order placed through the E-System is confirmed by EA via email, or (iii) EA proceeds with the fulfilment of the Purchase Order.

d.      Notwithstanding the foregoing, EA and its Suppliers reserve the right to make any changes in the specifications of the Products, on providing reasonable prior notice to Buyer, which are required in order to conform to any statutory or other legal requirements or which do not materially affect the performance of the relevant Products.

e.      Any Products which are subject to guidelines, restrictions or provisions imposed by a Supplier are sold, supplied and delivered to Buyer subject to any such guidelines, restrictions or provisions set out in the applicable Purchase Order.

 

3.  Special Order Goods.

a.      Notwithstanding anything to the contrary contained herein, if Buyer has elected to purchase Special Order Goods, Buyer understands and agrees that any Contracts for Special Order Goods will be negotiated by the parties in good faith, and any additional terms appropriate to the Special Order Goods will be included in the applicable Purchase Order.

b.      Unless otherwise agreed in the Purchase Order, Buyer shall be solely responsible for the accuracy of any Purchase Order submitted for Special Order Goods, including the specification, configuration or other details of such Special Order Goods and their functionality, compatibility and interoperability with other products, as well as their fitness for particular use as required by  Buyer’s customer.

               

4.      Cancelling & Rescheduling Purchase Orders. No Purchase Order which has been accepted by EA may be cancelled or rescheduled by Buyer except with written agreement by EA, which may not to be unreasonably withheld, but may be subject to any reasonable costs incurred by EA to cancel or reschedule the Purchase Order notified and agreed by Buyer in advance of such cancellation or rescheduling.

 

5.      Prices.

a.      The price of Products shall be the price in the EA price list (to be provided by EA to the Buyer upon request) or shown in the E-system.

b.     All prices and charges are exclusive of the cost of applicable value added tax (VAT), sales, use, consumption, gross sales tax (GST) and other taxes (other than taxes based upon EA’s net income) for which the Buyer shall be additionally liable for paying to EA. Buyer shall make all payments to EA without reduction for any withholding taxes, which shall be Buyer’s sole responsibility. All taxes shall be paid by Buyer to EA unless Buyer provides EA with a valid certificate of exemption acceptable to the appropriate taxing authority.

 

6.  Payment.

a.      Buyer’s payment shall be due on the date of the Purchase Order and in advance of delivery. If payment is made by credit or debit card then Buyer agrees to pay all fees and service charges incurred by EA in handling such transactions, including fees charged by the credit or debit card company.  In the event that any invoice does not reflect the relevant Purchase Order, Client will promptly notify EA and EA will reissue the invoice so as to reflect the applicable Purchase Order.

b.     All express deliveries are subject to additional

           shipping charges regardless of invoice value.

c.      Timely payment in full is of the essence of these Agreements. EA shall be entitled to recover any invoiced amounts notwithstanding that delivery may not have taken place.

d.     Any credit note, balance or other liability issued by EA to Buyer (including values of Product trade-ins or promotions) shall expire, without notice, within twelve (12) months of the date of issuance by EA. Buyer shall be deemed to have forfeited any right to such credit amounts and shall not be entitled to a replacement or repayment of any amounts related thereto.  

 

7. Delivery.

a.      Unless otherwise agreed in a Purchase Order: (a) any dates quoted for delivery of the Products are approximate only and EA shall use its best endeavours to meet such dates but will not be liable for any delay in delivery of the Products outside of its reasonable control (b) time for delivery shall not be of the essence of any Contract; and (c) any Products may be delivered by EA in advance of the quoted delivery date upon giving reasonable notice to Buyer.

b.     Unless otherwise agreed in writing, delivery of the Products shall be made at a place and time agreed by the Buyer and EA.

c.      Claims for non-delivery of Products must be made in writing to EA within 45 calendar days from the date of shipment, provided the Buyer submits reasonable evidence of non -delivery (to the extent any exists), and provides reasonable cooperation to EA to investigate the non-delivery. In the event EA should agree to deliver Products directly to Buyer’s customer any such delivery shall be deemed to be made to Buyer and any refusal by Buyer's customer to accept such delivery shall be deemed to be a refusal by Buyer.

d.     If EA is unable to deliver all Products under a Contract at the same time it must notify Buyer, and the parties may Buyer agree in writing, acting reasonably, to accept delivery of Products in one or more separate instalments.

e.      If Buyer fails to take delivery of the Products without good reason, or fails to give EA adequate delivery instructions in its Purchase Order then, without prejudice to any other right or remedy available, EA may: (i) store the Products until actual delivery and charge Buyer for the reasonable costs thereof, including insurance costs; or (ii) if the Buyer refuses to take delivery of the Products without good reason within 30 days’ of EA’s notice to the Buyer seeking delivery instructions, terminate the Contract forthwith and sell the Products.

f.      Buyer shall bear any and all costs (including original and return carriage costs) associated with any unjustified refusal of delivery of Products ordered pursuant to a Contract.

g.     If there is a shortage of Products available to EA then EA may allocate any available Products between its buyers on such a basis as it deems appropriate, provided that EA will be responsible for fulfilling any Purchase Orders entered into in respect of such Products, and will notify the Buyer of any future Purchase Orders that are unable to be fulfilled in full as a result of the Product shortage. In case of the foregoing, then Buyer agrees to accept any Products delivered to it and shall pay the appropriate pro-rated portion of the invoiced price for such Products.

               

8.  Title & Risk.

a.      Title and risk of loss or damage to the Products shall pass to Buyer upon the date that EA provides a notice to Buyer under clause 16(a) confirming that the Products have arrived at EA’s storage facility.

 

9.  Damage & Loss in Transit.

a.      EA shall not be liable in respect of damage or destruction to any Products during transportation of the Products to Buyer.

b.      Other than any other remedies available to the Buyer under this Agreement or the applicable Purchase Order, EA shall not be liable for any loss, damage or expense whatsoever and howsoever arising from any error, loss, damage or defect except as set forth herein.

c.      Any error, loss, damage or destruction of Product discovered by Buyer in delivery shall not entitle Buyer to rescind the remainder of a Contract.

 

10.   Publications & Specifications.

Any and all specifications, descriptions, photographs, measurements, capacities or illustrations contained in any catalogues, price lists, brochures, leaflets, proposals, advertising matter, publications of EA or a Supplier are intended to be illustrative and approximate only and shall not form part of a Contract or constitute a representation, warranty or Agreement regarding any Products unless specifically agreed by written agreement between the Buyer and EA, or as provided for in any Supplier warranty. No employee or agent of EA has any authority to make any representation regarding the Products, other than any representations or warranties agreed in a Purchase Order. Buyer acknowledges that it has not been induced to accept these Agreements by any representations or statement, oral or written, not expressly contained herein.

 

11.   Warranty.

a.      Buyer understands that EA is not the Supplier of the Products. Accordingly, all Products are sold subject to the express warranty terms, if any, specified by the original Supplier of the Products.

b.      EA warrants that it will perform its obligations under this Agreement in accordance with applicable law, with due care and skill, and by suitably qualified and experienced personnel.

c.      Any warranties, or other terms implied by common law or statute or otherwise in connection with these Agreements (except to title, in the case of Products) are hereby expressly excluded to the fullest extent permitted by law, save for fraudulent misrepresentation.

 

12.  Warranty Assistance.

a.      Buyer or its customer may notify EA or the relevant Supplier in accordance with the applicable Supplier warranty terms if any Products supplied to Buyer prove to be defective in quality or in breach of the applicable warranty within the Supplier’s warranty period (the “Claim”). Upon receipt of notification of such Claim, Claim must be handled directly with the Supplier. EA shall provide contact information to enable Buyer to contact Supplier.

b.      Buyer agrees that EA’s sole liability to Buyer regarding any Product defect claims is limited to the administration of such claims with the Supplier.

c.      EA shall not be liable or responsible for administering any defect or other claim which does not fall within the relevant Supplier warranty, which may include Claims in respect of normal wear and tear, misuse, negligence, accident, abuse, use not in accordance with Supplier’s Product documentation, modification or alteration not authorised by Supplier, or use in conjunction with a third party product.  The relevant Supplier will determine whether any Products are defective in accordance with its warranty policy.

d.      All transport charges incurred in returning or replacing Products are the responsibility of Buyer if the Claim is not validly made.

 

13.  Limitation of Liability.

a.      Each party’s liability for any direct loss or damage arising out this Agreement and any Contract including liability for death or personal injury, negligence, or for breach of implied title to Products shall be limited to and shall under no circumstances exceed the greater of: (a) the price paid by Buyer for the Products under the Purchase Order.

b.      Except as expressly provided in these Agreements, neither party shall be liable to the other party for any Consequential Loss.

 

14. Intellectual Property Rights.

a.      Buyer acknowledges that the Products are the intellectual property of the Suppliers. Nothing contained herein shall be deemed to grant any right or title to such intellectual property to Buyer.

b.      Unless otherwise agreed in a Purchase Order in respect of Special Order Goods, to the fullest extent permitted by any applicable law, Buyer understands and agrees that EA will not and has no duty to indemnify, defend or hold Buyer or any third party harmless from or against any claims, losses, liabilities, damages, costs and expenses, judgments or settlement amounts arising out of or in connection with any actual or alleged product liability, or alleged infringement of any trademark, copyright, patent or other intellectual property rights of a third party, except and only to the extent that a Supplier has expressly agreed to offer such indemnification and defence to Buyer on a pass through basis.

c.      Nothing contained herein shall be construed as authorizing or granting to Buyer any right or license to use any logo, trademark or trade name of EA or any Supplier, any license of which shall be subject to separate agreement including any then current policies of EA or its Suppliers, as appropriate.

               

15.  E-System Specific Terms.

a.      Buyer is solely responsible for the use of any User ID, password or other forms of identification (collectively “Buyer ID”) for accessing the ESystem, and in maintaining the confidentiality of the Buyer ID. Buyer shall immediately notify EA in the event it should lose or misplace or suspect any abuse (actual or attempted) of the Buyer ID. Buyer shall maintain appropriate security policies and procedures to ensure proper use of the Buyer ID. Absent notice from Buyer otherwise, EA shall have the right to rely absolutely on any Purchase Orders submitted through the ESystem and treat any Purchase Order submitted through the E-System as a valid and binding offer to purchase.

b.     Buyer is solely responsible, at its sole cost and expense, for securing and maintaining its own Internet access, facilities, hardware and software requisite to access the E-System. Buyer agrees that EA cannot guarantee the security or integrity of any data or information exchanged through the Internet or the ESystem.

               

16. Storage

a.      EA will provide Buyer with a notice (by email) confirming when the Products have arrived at EA’s storage facility.

b.     Title and risk of the Products transfers to the Buyer on the date that EA sends the notice under clause 16a.

c.      EA will store the Products for up to eight months after arrival at EA’s storage facility without charging a fee to the Buyer. 

d.     After the period of eight months, the Buyer may request Warehousing Services no later than 30 days before the end of the eight month period (Storage Request).

e.      EA may at its discretion agree to the provision of Warehouse Services for a Warehousing Fee.  

f.      EA shall notify the Buyer of the Warehousing Fee as soon as reasonably practicable after receiving the Storage Request.  

g.     The Buyer agrees that EA may issue an invoice in accordance with clause 6a. above if Buyer agrees to the Warehousing Fee in writing. 

h.     The Warehousing Services shall only be provided to the Buyer solely for Goods and Products purchased directly through EA.

 

17. Force Majeure.

a.      Neither party shall be liable to the other party or be deemed in breach of this Agreement or any Contract by reason of delay or failure to perform if such delay or failure to perform was caused by Force Majeure.

b.     In the event of a Force Majeure event: (i) the affected party shall, as soon as commercially practicable, notify the other party of such Force Majeure event provided the affected party shall incur no liability for its failure to give such notice; (ii) the affected party’s duty to perform shall be suspended for the duration of the Force Majeure event; and (iii) the time of the affected party’s performance shall be extended by a period equal to the duration of said Force  Majeure event.

c.      In the event a Force Majeure event should continue for more than ninety (90) days either party may, by written notice to the other, cancel a Contract insofar as Products remain undelivered under said Contract. Upon such cancellation, EA shall have no obligation to deliver and Buyer will have no obligation to accept delivery of or pay for the undelivered Products, but the Contract shall remain in full force and effect regarding all Products delivered prior to the date of cancellation.

 

 

18.  Compliance with Laws; Export.

a.      Buyer agrees not to re-sell, export, re-export or otherwise distribute Products, or direct products thereof.

b.     Buyer warrants that it will not re-sell, export or re-export any Products with knowledge that they will be used in the design, development, production, or use of chemical, biological, nuclear, or ballistic weapons, or in a facility engaged in such activities. Buyer further warrants that it will not export or re-export, directly or indirectly, any Products to embargoed countries or sell Products to companies or individuals listed on the Denied Persons List published by the US Department of Commerce.

c.      Buyer shall indemnify, defend and hold EA harmless from any violation or alleged violation by Buyer of the terms of this Clause.

19 Confidential Information.

Buyer agrees that this Agreement, including any Contracts, and all Product related information including pricing and descriptions which are provided by EA to Buyer, regardless of the form in which it is provided, are considered confidential information of EA and its Suppliers (“Confidential Information”). Buyer shall hold such Confidential Information in strict confidence and not use or disclose such Confidential Information to any third party except as required by law. Buyer further agrees to limit access to such Confidential Information to those of its employees who have a need to know and are subject to written obligations of confidentiality at least as protective of the Confidential Information as these Agreements. All Confidential Information is provided “AS IS” without any representation or warranty, either express or implied, as to accuracy or completeness. EA agrees to hold, in strict confidence, and not disclose to a third party any information provided by Buyer which is marked as confidential, proprietary or using similar terms, or that is confidential by its nature, including any information relating to Buyer’s business, personnel, financial affairs, network, technology or customers.  

 

20.   Termination

a.      Without prejudice to any other rights or remedies under this Agreement, a party may terminate this Agreement or any or all Contract(s) with immediate effect on written notice if the other party:

i      commits a material breach of this Agreement and fails to remedy that breach within 14 days of receipt of a notice specifying the breach and requiring it to be remedied; or

ii     becomes subject to, or threatens to become subject to, any form of insolvency or bankruptcy proceeding, appoints a liquidator, receiver or administrator, enters into an arrangement with its creditors, ceases to trade or do business in the ordinary course or is otherwise unable to pay its debts as and when they fall due.

b.     Upon termination of this Agreement, each party must return, or if instructed in writing by the other party, destroy all confidential information of the other party in its possession or control.  Any terms that by their nature are to continue after the termination of this Agreement will survive such termination, including clause 14 and 21.

21.   Miscellaneous.

a.      Assignment. Neither party may transfer or assign this Agreement to a third party by operation of law or otherwise without the prior written consent of the other party.

b.     Waiver. Failure of a party to enforce any provision of these Agreements or a Contract shall not be deemed a waiver of the right to thereafter enforce that or any other provision of this Agreement or a Contract.

c.      Severability. In the event that any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.

d.     Audit Rights. Each party shall keep and maintain true and complete records pertaining to its performance of this Agreement or any Contract hereunder in sufficient detail to permit the other party to accurately determine whether the first party has fully complied with their terms. Each party shall make such records available upon reasonable notice, during regular business hours, for inspection and copying by the other party and its representatives. Each party shall maintain such records for at least seven (7) years after the end of the calendar year to which they pertain.

e.      Marketing. Buyer agrees that EA may collect, store and use Buyer data, including personal data, for the purpose of facilitating its marketing and sale of the Products to the Buyer, and Buyer hereby consents to such collection, storage and use of Buyer data by EA for these purposes. Notwithstanding the foregoing, EA agrees not to share personal data with third parties without Buyer’s prior consent. Buyer further consents to the use of such data for communicating Product and promotional information to Buyer via email or other electronic means unless Buyer notifies EA in writing that it does not wish to receive such promotional information.  To avoid doubt, all Buyer customers are owned by the Buyer and EA may not collect or use any personal data relating to Buyer’s customers, or contact any Buyer customers without the Buyer’s prior written approval.

f.      Choice of Law & Venue. This Agreement shall be governed by the laws of New South Wales, and Buyer hereby agrees to submit to the exclusive jurisdiction of the Australian courts. The United Nation’s Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Agreements.

g.     Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between the parties as to the sale of Products and services, and supersede all prior or current written or oral statements, representations, negotiations, agreements and understandings to the extent that prior or current agreements modify or are inconsistent herewith.