GENERAL CONDITIONS OF SALE
These General Conditions of Sale, together with the details set out in the attached order, form the agreement between the Company and the Customer for the supply of the goods and/or services described in the order (“this Agreement”). In this Agreement the “Company” means Ainsworth Game Technology Ltd (ACN 068 516 665) and the “Customer” means the person purchasing the goods and/or services from the Company.
1.1 All prices for goods and/or services provided by the Company are based on current wages, awards and conditions, materials and other processing costs, freight and insurance costs, rates of exchange, indirect taxes and any other duties (“Input Costs”) applying at the date of the order. If there is a material change in the Input Costs prior to the date on which any goods are delivered or services are performed, the Company may by notice vary the prices for those goods or services to reflect that change. If the Customer does not wish to proceed on the basis of the varied prices the Customer may immediately terminate its order for the affected goods and services by notifying the Company accordingly.
1.2 Unless otherwise stated in writing by the Company, prices are ex works the factory where the goods are manufactured being Newington, NSW. The Customer must arrange and pay for all freight or delivery costs or charges.
1.3 All prices are shown both exclusive of goods and services tax (GST) unless otherwise specified in writing by the Company. In addition to the prices shown, the Customer must reimburse or pay to the Company all applicable taxes including (to the extent they apply) GST, duties or fees levied or based on this Agreement or the provision of the goods or services by the Company to the Customer excluding taxes based on the income of the Company.
1.4 The Customer must at its expense prepare any location at which installation services are to be performed in accordance with any reasonable requirements notified in writing to the Customer by the Company. The Company is not required to perform any installation unless and until the Customer has complied with this clause.
1.5 Except as described in clauses 1.1 or 17, the Customer cannot cancel any order except with the Company’s consent. The Company may grant that consent subject to a charge being payable. Any such charge may be deducted by the Company from any deposit or other money paid to the Company.
2.1 Unless otherwise stated in writing by the Company or as required or allowed by law:
2.2 The Company reserves the right to charge interest, at the lesser of 3 percent above the prime lending rate of a major Australian trading bank (as selected by the Company) applicable at the date of invoice compounded monthly or the maximum amount permitted by law, on all amounts which are not paid as required by clause 2.1.
2.3 A Customer that does not have a permanent establishment or residence (such as a head office or registered company address) within Australia from which it conducts its operations must (1) submit a completed credit application form (as specified by the Company), and (2) receive written notification from the Company of the opening of a trading account with the Company (on such credit terms as may be notified by the Company from time to time), as a pre-condition to any supply or delivery of any goods or services by the Company to the Customer.
2.4 The Company reserves the right to require payment earlier or require cash on delivery should the Company become concerned about the Customer’s credit worthiness and may in the Company’s discretion require the Customer to submit or re submit as the case may be, within 5 business days of a written request from the Company a completed and or updated credit application form (as specified by the Company) as a pre-condition to any further supply or delivery of any goods or services by the Company to the Customer.
2.5 The Company reserves the right to require the giving of a guarantee or guarantees within 5 business days of a written request from the Company pursuant to clause 9 at any time.
2.6 All payments due from the Customer must be made in full without deduction of any nature whether by way of set-off, counterclaim, other equitable or lawful claim or otherwise.
2.7 If payment of the price for goods or services is specified in writing by the Company to be paid in instalments by the Customer over one or more periods of time (the total of which comprise the “Payment Term”), the Customer agrees to make each of those instalment payments in full in advance on or before commencement of the first business day in Sydney, NSW of the next payment period. If no period for each instalment payment is specified, each payment will be deemed to payable in advance before commencement of the first business day in Sydney, NSW of the next calendar month.
2.8 Time is of the essence in relation to the Customer’s obligation to make payments and to otherwise comply with the requirements of this clause. A failure of the Customer to comply with the requirements of this section 2 is a material breach of this agreement.
3.1 Title in and ownership of the goods is retained by the Company until the last to occur of:
3.2 Where the Company has not been paid for the goods delivered to the Customer, the Customer agrees to keep the goods as a bailee of the Company and, if requested, store the goods in a manner that clearly shows ownership by the Company. The Customer must do all things reasonably necessary or incidental to allow the Company to repossess any goods under this clause or to inspect the goods.
3.3 Where the purchase price or any part of it is paid by one or more cheques, promissory notes, bills of exchange or other negotiable instruments, title to the goods does not pass to the Customer until they have been honoured.
4. DELIVERY AND ACCEPTANCE
4.1 Delivery or completion times stated by the Company are estimates based on present production commitments, availability of materials, labour and transport and other contingencies. Delivery or completion estimates are to be treated merely as estimates, unless the Company has expressly confirmed the estimate in writing.
4.2 Delivery is subject to the Company not being delayed by the instructions, or unclear or lack of instructions, from the Customer.
4.3 Where the delivery period has been specified in units of time, the time will relate to normal working days and/or normal working weeks for the Company and its subcontractors.
4.4 The Company will not be responsible for delays in providing all or any part of the goods and/or services caused by or in any way incidental to acts of God, war, fires, breakdown in machinery, strikes or arising out of any unexpected or exceptional causes outside the Company’s control.
4.5 Unless otherwise stated in writing by the Company, the Company may deliver the goods and/or services by instalments, separate shipments or in stages and may invoice the Customer accordingly.
4.6 The Customer will inspect the goods immediately on delivery and will within 7 days from that date of delivery notify the Company of any matter or thing by reason which the Customer may allege that the goods and/or services are not in accordance with the Customer’s order or are otherwise unacceptable. Without limiting the Company’s obligations under clause 6, if the Customer does not give any notice under this clause the goods and/or services supplied will be considered to have been accepted by the Customer and the Customer will be bound to accept and pay for the goods and/or services accordingly.
5. LIABILITY AND RISK
5.1 Risk in the goods passes to the Customer when the Company gives possession of the goods to a common carrier or, if the Company delivers the goods in its own vehicles, when the Company delivers the goods.
5.2 All express or implied warranties, representations, statements, terms and conditions relating to this Agreement or its subject matter, not contained in this Agreement, are excluded from this Agreement to the maximum extent permitted by law. Nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or remedy implied or imposed by any statute or regulation which cannot lawfully be excluded, restricted or modified, which may include the relevant provisions of the Competition and Consumer Act 2010 (Cth) and corresponding provisions of State or Territory legislation which contain provisions including implied conditions and warranties which operate to protect the purchasers of goods and services in various circumstances.
5.3 If any condition or warranty is implied into this Agreement under the Competition and Consumer Act 2010 (Cth) or any equivalent State or Territory legislation and cannot be excluded, and the Company is able to limit the Customer’s remedy for a breach of such a condition or warranty, then the liability of the Company for breach of the condition or warranty is limited to one or more of the following at the Company’s option:
5.4 Subject to the Company’s obligations under the implied conditions and warranties referred to in clause 5.2 and to the maximum extent permitted by law:
6.2 The Customer must:
6.3 The warranty in clause 6.1(a) only applies within the boundaries of the state in which the goods were delivered and does not apply where:
The Customer will allow the Company and its representatives access at any time prior to the passing of title or expiration of the Warranty Period, whichever is later, to inspect the goods and enter into premises where the goods or any part of them are, or are presumed to be.
8. TRADED-IN PRODUCTS
The Customer warrants that any trade-in products provided to the Company are the sole and absolute property of the Customer free from any lien, mortgage, charge or other encumbrance to any other person.
If required by the Company, the Customer will:
9.1 arrange for the provision of an unconditional performance guarantee by a third party satisfactory to the Company;
9.2 arrange for the provision an unconditional and irrevocable financial undertaking by a third party satisfactory to the Company; and/ or
9.3 arrange for any existing security in place to be extended to cover the provision of goods and/or services provided under any subsequent order or orders, in terms and conditions reasonably satisfactory to the Company. Upon written request of the Company, the Customer must procure an increase of the amount of a guarantee or financial undertaking to provide security reasonably satisfactory to the Company.
10. INTELLECTUAL PROPERTY &CONFIDENTIAL INFORMATION
10.1 The Customer acknowledges that supply of the goods and/or services is not intended to convey any right or title or interest in any copyright, trademark, patent or design right or any other intellectual property right whether registered or not in Australia or elsewhere in or related to or used or developed in connection with or in support of the goods and/or services any part of them or in any related documentation (“Intellectual Property”).
10.2 The Company grants to the Customer a non-exclusive, royalty free and perpetual licence to use the computer software contained on the goods or supplied as spare parts. This licence specifically excludes the right to modify, adapt, reproduce, copy, distribute, supply, give, sell, transfer, assign or otherwise dispose of that software or the Customer’s licence rights in relation to that software, unless the Customer is otherwise permitted to do such things by law.
10.3 The Customer will not at any time knowingly do or cause to be done any act or thing impairing or tending to impair the right, title or interest of the Company to any Intellectual Property provided for use by the Customer including without limitation the alteration, amendment, removal or other modification of or to any notice of copyright or other proprietary notice incorporated in or affixed to any part of the goods or documentation.
10.4 The Customer will treat as confidential all information received from the Company regarding the goods and/or services not generally disclosed to the public which the Customer may learn in the course of or incidental to the supply of goods and/or services whether or not it is in writing and, in addition, any information designated by the Company as confidential (“Confidential Information”). Without limitation Confidential Information includes details of any software, its source code or any flow charts, diagrams or data relating thereto, or its method of operation, access to which may be provided to the Customer.
10.5 The Customer will not disclose to any person, other than those officers, employees and agents of the Customer who need to have that information in order to carry out their duties on behalf of the Customer, the whole or any part of any Confidential Information except as expressly permitted by law or with the prior written consent of the Company.
10.6 The Customer will procure that its officers, employees and agents keep the Confidential Information confidential as required by this clause 10.
11. SALES COMMISSION
Where the sale of the goods to the Customer has been arranged through an agent, the Customer acknowledges that it is aware that the Company has or may have agreed to pay a commission to the agent.
12. GOVERNING LAW
This Agreement is governed by and construed according to the laws applicable in New South Wales, Australia. The parties submit to the courts of New South Wales in respect of any action that arises under this Agreement.
The failure of either party to enforce a provision of this Agreement will not be interpreted as a waiver of its rights. No waiver of enforcement by a party of a right constitutes a continuing waiver unless expressly stated in writing by that party.
14. COMPLIANCE WITH LAWS
14.1 Unless otherwise stated in writing by the Company, where sale, supply, operation or possession of the goods is subject to any governmental or regulatory approval, consent or authorisation of any kind (“Approval”): (i) the Customer will be responsible for and will pay all costs associated with obtaining and maintaining the Approval to the extent it is necessary for the Customer’s operation and or possession of the goods, and the Customer undertakes to provide a copy of that Approval if requested by the Company; and (ii) the Company will be under no legal obligation to sell or supply any such goods to the Customer unless and until all required Approvals are granted, consented to authorised or otherwise obtained by both the Customer and the Company (as applicable) .
14.2 If either party does not or cannot comply with clause 14.1(i), the Company will be under no obligation to supply the goods and may immediately terminate this Agreement by notifying the Customer accordingly.
14.3 The Customer is responsible for obtaining all documentation, permits, clearances and the like required to export or import the goods The Company is under no obligation to assist the Customer in complying with its obligations under this clause 14. The Customer must bear all costs associated with such compliance. The Company has no liability in relation to the Customer’s compliance or non-compliance with any required export or import requirements and the Customer must indemnify the Company against any loss it suffers as a result of the Customer’s failure to comply with this clause 14.3.
15. ENTIRE AGREEMENT
15.1 This Agreement is the entire agreement between the parties about its subject matter and replaces all previous agreements, understandings, representations and warranties about that subject matter. Each party represents and warrants that it has not relied on any representations or warranties about the subject matter of this Agreement except as expressly provided in this Agreement.
15.2 This Agreement applies to the exclusion of all other terms and conditions contained in any document submitted by the Customer, such as the terms of any purchase order.
16. GAME CONVERSIONS
Where a game conversion for any machine provided by the Company under this Agreement is performed, whether by the Company or a third party, unless otherwise stated in writing by the Company, the Customer must ensure the return to the Company of all material associated with the game from which the machine is converted.
17.1 If a party (the “Defaulting Party”) breaches this Agreement and fails to remedy that breach within 5 business days of receipt of written notice, the other party may at its election and without prejudice to its other rights and remedies terminate this Agreement immediately by giving notice of such termination to the Defaulting Party.
17.2 Either party may terminate this Agreement immediately by giving notice of such termination if the other party commits an act of insolvency or being a natural person dies.
17.3 Upon termination of this Agreement the Company may repossess and resell any goods delivered to the Customer which have not been paid for in full (and if this Agreement has been terminated by the Customer under clauses 17.1 or 17.2, the Company will upon repossession and resale of such goods promptly refund any portion of the price that it has already received from the Customer that exceeds the difference between: (a) the price already received from the Customer and the Company’s reasonable sale costs; and (b) the resale price received by the Company. In relation to software installed on any goods the Company may, at the Customer’s cost, erase the software or intellectual property installed which has not been paid for in full. The Customer irrevocably permits the Company to enter its premises to enable the Company to enforce its rights under this clause.
17.4 Where the Company’s right to terminate arises under clause 14, the Company may require the Customer to return any goods sold under this Agreement to the extent the Company considers reasonable to protect any licence or relationship with a regulator. The Customer must return those goods to the Company at the Customer’s own cost as soon as possible after a request by the Company, and upon their return the Company will refund to the Customer the amounts paid for those goods (as depreciated on a straight-line basis over a three year period to reflect the Customer’s use of those goods).