Ciba (Australia) Pty. Limited (ABN 97 005 061 469)
General Terms of Sale
1. Exclusive Application
These General Terms of Sale (“GTS”) apply to all sales of Ciba (Australia) Pty. Limited (“Ciba”). Conflicting or additional terms of sale and in particular, stipulations in Customer’s purchase orders, shall be valid only if they have been expressly agreed in writing.
2. Force Majeure
Ciba shall not be liable for any non-fulfillment of its obligations resulting from a force majeure event. For this purpose, “force majeure” shall mean an act of God, war, terrorism, lightning, fire, earthquake, storm, flood, explosion, unavailability or delay in availability of equipment, products, raw materials or transport, labour dispute and any other cause which is not within the control of Ciba.
3. Taxes and Other Costs; Terms of Payment
Unless otherwise stated, all prices exclude delivery and handling charges, which shall be borne by Customer. All taxes, levies and other government charges imposed for the sale of the products (including goods and services tax) shall be paid for by the Customer. Unless otherwise agreed in writing, all invoices are to be paid net with no deduction whatsoever within thirty (30) days of the date of the invoice. Ciba reserves the right to charge default interest on overdue amounts accruing daily from the due date for payment until the date of actual payment at a rate 3% per annum above the prevailing Citibank Prime Rate compounding monthly (on the basis of a 365 day year).
4. Date of Delivery
Any delivery dates indicated by Ciba are non-binding and based on the conditions prevailing at the time the order is placed and under the assumption of normal supply and manufacturing conditions. Except in the event of gross negligence or willful misconduct of Ciba and subject to clause 2 above, Ciba shall not be held liable for delays in the supply of products.
5.Acceptance of Products
Unless the Customer notifies Ciba to the contrary within ten days of receipt of the products, the products shall be deemed to have been accepted by the Customer as being in good condition and in conformance with published specifications. The Customer shall not be entitled to withhold payment of all or any of the price of the products whilst any claim is being investigated by Ciba. Products may be partially delivered to the Customer, which the Customer will accept and pay for.
6. Retention of Title and Risk
Title to delivered products will pass to the Customer only after it has fully paid for those products (and other amounts owing by the Customer to Ciba) in full. Until such payment has been made, the Customer shall hold the products as Ciba's bailee and shall store the products in such a manner as to make them clearly identifiable as Ciba's property. Without prejudice to Ciba’s rights to claim for payment of the purchase price, if Ciba seeks to recover the products for non-payment, the Customer hereby grants a license to Ciba to enter any premises occupied by the Customer for the purpose of recovering the products. Unless otherwise agreed between the parties in writing with respect to any particular order, risk in the products shall pass to the Customer immediately upon delivery to the Customer or the Customer’s carrier, if so appointed by the Customer.
7. Warranty and Liability
Ciba warrants that when dispatched from Ciba’s facilities, the products shall meet Ciba’s published specifications. Ciba’s liability for breach of warranty shall be limited to the replacement of products that do not conform to the published specifications or to the refund of the purchase price, provided that the non-conformance must be notified and specified in writing within ten days of receipt of the products. Ciba makes no warranty whatsoever with regard to experimental or non-commercial products. Ciba is not responsible for damage resulting from storage, usage, handling, incorporation or alteration of the products by the Customer or third parties. Ciba’s total liability hereunder shall not exceed the total purchase price paid for the products under these GTS. Ciba's liability for any claim arising out of or in connection with the purchase, use or performance of the products shall not extend to any incidental, indirect, special or consequential loss or damage, nor will Ciba's liability for any such claim extend to any loss or damage in the nature of loss of (a) actual or anticipated revenue, profits or savings; (b) interest, goodwill or data; (c) production or raw materials; or (d) amounts payable to idle or stood-down personnel, even if the potential for such loss or damage has been made known to Ciba.
8. Terms Implied by Legislation
Any limitation on Ciba's liability under these GTS only operates to the extent permitted by law, and nothing in these GTS purports to exclude, restrict or modify, or have the effect of excluding, restricting or modifying, any condition or warranty implied by legislation (including the Trade Practices Act 1974 (Cth) and any State or Territory legislation concerning consumer protection, fair trading or the sale of goods or services) ("Implied Term") where to do so would have the effect of rendering the relevant provision in these GTS void or otherwise unenforceable. Subject to the foregoing sentence: (a) all Implied Terms and any other conditions or warranties otherwise implied by law are excluded from these GTS; and (b) Ciba's liability for a breach of any Implied Term of the kind referred to in the first sentence of this clause 8 will be limited to the full extent permitted by law.
9. Recommendations and Advice
All recommendations and advice given by Ciba are based on the current state of Ciba’s knowledge. Notwithstanding such recommendations or advice, the Customer shall not rely upon that advice and shall satisfy itself that the products are suitable for its intended process or purpose. Since Ciba cannot control the application, use or processing of the products, Ciba cannot accept responsibility therefor. The Customer shall ensure that its intended use of the products will not infringe any third party’s intellectual property rights.
10. Internal Use Only
The products sold hereunder are not intended for Customer’s resale unless specified otherwise by Ciba in writing. Ciba disclaims all liability and the Customer hereby indemnifies and will hold Ciba harmless against any claims relating to any unauthorized resale by the Customer.
11. Responsible Care
Ciba supports the Responsible Care Program which incorporates an obligation for Ciba to work with its customers to ensure the safe and legal storage, handling, use, transportation and disposal of chemical products. In this regard, the Customer agrees to exercise due diligence in the fulfilment of relevant safety and environmental requirements applying to the products purchased. Ciba will provide all necessary information about its products to the Customer and any appropriate support to the Customer as may reasonably be required.
12. Governing Law
These GTS are governed by and shall be construed in accordance with the laws in force in Victoria without regard to its conflict of law provisions. The application of the UN Convention on the International Sale of Goods (Vienna, 1980) is expressly excluded. The Customer agrees to submit to the non-exclusive jurisdiction of the courts of Victoria.
13. General
The Customer shall not assign or otherwise transfer any of its rights or obligations hereunder whether in whole or in part without the prior written consent of Ciba. Any such unauthorized assignment shall be deemed null and void. If a provision of these GTS is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the remainder of that provision and of all other provisions of these GTS (to the extent that they are not held to be invalid or unenforceable) shall not be affected thereby. Customer shall be responsible for all legal fees incurred by Ciba in the enforcement of any of the terms herein.
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