Supplemental Conditions of Sale COS24P (June 2024)
These Supplemental Conditions cover the sale by NHP Electrical Engineering Products Pty Ltd ("NHP") to the Customer of the hardware, software, and/or services (individually a "Product" and collectively "Products") set forth in the Statement of Work, which shall be integrated as set forth in the Statement of Work (collectively the "Work").
1. GENERAL
These Supplemental Conditions, Statement of Work along with NHP Conditions of Sale (COS24) as provided by NHP (the "Agreement") constitutes the entire Agreement between the parties, superseding any previous agreements and understandings, whether oral or written. In the event of any conflict between the Statement of Work and these Terms and Conditions and NHP Conditions of Sale (COS24), the following order of precedence shall prevail;
a. The Statement of Work
b. These Supplemental Conditions (COS24P),
c. NHP Terms and Conditions of Sale (COS24)
This Agreement exclusively will govern the sale and/or licensing by NHP of the Work and any other Products furnished under this Agreement. No addition or modification to this Agreement will be binding unless mutually agreed to in writing. Each party rejects any other terms and conditions that are in addition to or not consistent with this Agreement that may be proposed by the other party or that appear or are referenced in Customer's purchase order or other requisition or in NHP's invoice.
2. PRICE
As provided in the Statement of Work exclusive of GST. Unless otherwise set forth in
the Statement of Work, the price shall be net of any withholding tax payable by the Customer, and in no event shall the Customer be entitled to withhold or deduct any such tax from the price.
3.SECURITY
a. Performance Security: Any security agreed toby NHP will be given in the form of a bankguarantee, issued by ANZ Banking GroupLimited in the bank's standard guaranteeformat with a finite expiry date.
b. Interim Approvals. Any NHP provided interimWork deliverable requiring Customer approvalpursuant to the Statement of Work will bedeemed accepted if formal Customer approval,written or as otherwise required, is notreceived by NHP within two calendar weeksafter the date submitted.
c. Acceptance will not be delayed on account ofminor omissions, additions, or defects, whichdo not materially affect the intended use ofthe Work.b.Payment Security: NHP reserves its right torequire the Customer to provide PaymentSecurity upon order placement in a form ofSecurity acceptable to NHP.
4.DESIGN AND MARK-UP
NHP created drawings will be in PDF format using standard NHP drafting software with NHP document numbering and revision protocol. Unless otherwise set forth in the Statement of Work
a. NHP will submit drawings by email once,except where;
i. Correction of drawing errors which were madeby NHP; or
ii. Customer requested changes under clause 7.
b. Apart from any use permitted under theCopyright Act 1968, no part may bereproduced or altered by any process, nor mayany other exclusive right be exercised, without the written permission of NHP.
c. Annotations and mark-ups, for the expresspurpose of requesting design changes, mustbe clear and distinct from that of the originalworks.
d. No customisations or changes are to be madeto the drawing borders and/or title blocks.
5.SAMPLES
Sample products will not be provided unless otherwise set forth in the Statement of Work.
6.CUSTOMER ACCEPTANCE
a. Acceptance of the Work occurs either
i. if no acceptance criteria is specified in theStatement of Work then acceptance occursupon Delivery; or
ii. on the date the Work conforms to acceptancecriteria in the Statement of Work or isotherwise beneficially used by the Customer,but in no event later than 60 days from start- up or 120 days following Delivery whicheveroccurs first.
b. Interim Approvals. Any NHP provided interimWork deliverable requiring Customer approvalpursuant to the Statement of Work will bedeemed accepted if formal Customer approval,written or as otherwise required, is notreceived by NHP within two calendar weeksafter the date submitted.
c. Acceptance will not be delayed on account ofminor omissions, additions, or defects, whichdo not materially affect the intended use ofthe Work.
7.CHANGES
Any change resulting from any of the following circumstances is subject to equitable adjustments to price, scheduling, and other affected terms and conditions:
a. Customer requested order changes, includingthose affecting the identity, scope, anddelivery of the Work or Products;
b. Concealed or otherwise unknown physicalconditions differing materially from thoseindicated or anticipated in the Statement ofWork or that otherwise differ materially fromthose ordinarily found under similarcircumstances;
c. Any delays caused by Customer, itsemployees, affiliates, other contractors toCustomer, or any other party withinCustomer's reasonable control;
d. Any emergency endangering persons orproperty. In such circumstances, NHP may actat its discretion to prevent damage, injury, orloss.
All changes, except actions necessitated byemergencies as provided in (d) above, must beexecuted in writing, signed by both parties orotherwise definitively authorised by bothparties. NHP will not begin work on a changeuntil such change is properly authorised. Allclaims relating to a change must be madewithin a reasonable time after the occurrencegiving rise to the claim. If the parties cannotagree on a change in pricing or schedule, it willbe resolved pursuant to the dispute resolutionprocess in the NHP Terms and Conditions of Sale.NHP reserves the right to substitute using the latest superseding revision or series or equivalent Product having comparable form, fit, and function, and such substitutions shall not be considered changes subject to the other terms of this section.
8.DEFAULT, DELAYS, AND TERMINATION
a. Default by NHP. If NHP, its employees,affiliates, or other contractors to NHP are inmaterial default of their obligations in theAgreement, the Customer shall give NHP written notice, and NHP shall have 5 businessdays to begin action and 90 days (or longer ifagreed to in writing) to cure the default. If NHPfails to cure the default, the Customer mayterminate this Agreement to the extent thatNHP is in default. NHP's liability shall belimited to
i. the proportionate price of the terminatedportion of the Work and
ii. any documented direct excess reprocurementcosts incurred by the Customer to completethe Work to a capability not exceeding thatprovided in the Statement of Work, but NHP'sliability for documented direct excessreprocurement costs shall be limited to 110%of any amounts paid for the terminatedportion of the Work.
b. Convenience of the Customer. Except as setforth in the Statement of Work, the Customermay terminate this Agreement forconvenience prior to shipment by givingwritten notice to NHP. The Customer shall payfor any Work performed before receipt ofnotice and any additional costs of termination(including third-party commitments,reasonable profit, and overhead or as may be
more specifically provided in the Statement of Work) upon submission of NHP's invoices.
c. Delays or Default by the Customer. If theCustomer, its employees, affiliates, othercontractors to the Customer, or any otherparty within the Customer's reasonablecontrol causes the delivery, installation, oracceptance of the Work to be delayed beyondthe time period set forth in the Statement ofWork, or if the Customer materially fails tofulfil any condition of the terms of this Agreement, or if in NHP's reasonable opiniondetermines that the Customer may not beable to make payment of any amount due andpayable, NHP may elect to:
i. withhold deliveries and suspend Work, or
ii. place the Products in storage at theCustomer's risk and cost. If such delay or othernon-fulfillment is not rectified by theCustomer within a reasonable time uponnotice, NHP may terminate this Agreement,and the Customer shall pay all costs oftermination (including third-partycommitments, reasonable profit, andoverhead) upon submission of NHP's invoices
d. Temporary Suspension of Work by Customer.Except as set forth in the Statement of Work,the Customer may, by providing prior writtennotice, request that NHP temporarily suspendperformance and delivery of the Work, inwhole or in part. The notice shall specify theportion of the Work to be suspended, theeffective date of suspension, the Customer'santicipated duration of suspension, and thereasons for the suspension. NHP shallsuspend Work as requested, except asnecessary for the care or preservation of Workpreviously executed. On or before the date thesuspension begins, the Customer must pay NHP the unpaid balance of the portion of the Work previously executed plus any additional costs incurred by NHP as a result of the suspension. NHP shall resume the suspended Work after a variation order is executed covering adjustments to the price, schedule, and any other affected terms or conditions resulting from the suspension. Unless otherwise agreed, the maximum cumulative period for suspension is 60 days. Upon expiration of this or any shorter period agreed upon as provided above, NHP may terminate this Agreement, and the Customer shall pay all costs of cancellation (including third-party commitments, reasonable profit, and overhead) upon submission of NHP's invoices.
9.SOFTWARE LICENSES AND OWNERSHIP
a. Standard Software. Software comprised offirmware or standard software (including, butnot limited to packaged software, pre-existingtemplates, models and library files, andcommercially available software) (collectively"Standard Software") is subject to theCustomer's acceptance of additional termsand conditions set forth in separate NHP orthird-party click-wrap license agreementsprovided with such Standard Software. Suchterms and conditions shall be the exclusiveterms and conditions applicable to suchStandard Software, excluding the Customer'sobligation to pay any license fee which shall beidentified in the Statement of Work.
b. Documentation and Application Software.NHP hereby grants to the Customer a non- exclusive, non-transferable license to modifyand use solely in conjunction with the Work alldocumentation and any Application Softwarecreated as specified in the Statement of Work.
Application Software includes application project files for control programming, design, configuration, and visualisation in source code and/or scripting code created by NHP, its affiliates, or other contractors to NHP under the Agreement for operational use with Standard Software or the Customer's system as specified in the Statement of Work. The Customer is solely responsible for its modifications to documentation and Application Software. Except for any Customer or third-party confidential information, NHP, its affiliates, or other contractors to NHP retains all right, title, and interest to documentation and Application Software developed by NHP, its employees, affiliates, or other contractors to NHP. The Customer shall not sublicense or assign the documentation or the Application Software except to a customer who purchases the Work from The Customer. The Customer may make an additional archival copy of such documentation and Application Software for backup.
c. In the absence of a separate licenseagreement for software provided by NHPunder a Statement of Work, NHP herebygrants the Customer a non-exclusive, non- transferable license to use such softwaresolely in conjunction with the Work for theproject identified in the Statement of Workwithout the right to sublicense, disclose,disassemble, decompile, reverse engineer, orotherwise modify the software (except formodifications of Application Software as setforth above). Ownership of the respective NHPor third-party software shall remain with NHPor the third party.
d. Ownership of Pre-existing IntellectualProperty. Each party shall own all right, title, and interest in all patents, trademarks, copyrights, confidential information, trade secrets, mask rights, and other intellectual property rights as it owned on the date of this Agreement.
e. No Other Licenses. Except as expressly setforth in this Agreement, no license under anypatents, trademarks, copyrights, confidentialinformation, trade secrets, mask rights, orother intellectual property rights is granted orimplied by either party.
10.INTELLECTUAL PROPERTY INDEMNITY
NHP will pay costs and damages finally awarded in any suit against the Customer to the extent based on a finding that the design or construction of the Work or Products under the Statement of Work, knowingly infringes any patent, utility model, copyright, or trademark granted or registered in Australia, provided that, the Customer:
a. promptly informs NHP of the allegedinfringement in writing;
b. provides NHP the exclusive right to defendand settle the suit, at NHP's expense; and,
c. provides all reasonable information andassistance requested for the defence. NHPshall have no liability for any infringement thatis based upon or arises out of:
i. compliance with the Customer's instructions,specifications or designs;
ii. use of Work or Products in the Customer orthird-party process; or,
iii. combinations with other equipment, softwareor materials not supplied by NHP. Theforegoing states the sole and exclusive
obligations of NHP for intellectual property infringement.obligations of NHP for intellectual property infringement.
11.GENERAL INDEMNITY
NHP agrees to indemnify the Customer from any suit or proceeding by third parties (which are not NHP employees) for damage to third- party tangible property and for bodily injury to the percentage extent directly caused by NHP's negligence in the performance of this Agreement. This indemnity is contingent upon the Customer giving NHP prompt notice of any such suit or proceeding and all necessary information and assistance so that NHP may defend or settle such claim and provided the Customer does not take any adverse position in connection with such claim. If any such damage or injury is caused by the joint or concurrent negligence of NHP and the Customer, or any agent, subcontractor, or supplier to the Customer, each party shall pay for its own defence, and the liability of each party shall be borne in proportion to the party's negligence.
12.CUSTOMER SPECIFICATION
a. Unless otherwise set forth in the Statement ofWork, NHP does not warrant or indemnify andwill not otherwise be liable for
i. design, materials, or construction criteriafurnished or specified by the Customer andincorporated into the Work or Products,
ii. Products supplied by, made by or sourcedfrom the Customer or other manufacturers orvendors specified by the Customer; or
iii. commercially available computer software andhardware. (Such Customer supplied/specified products shall include but not be limited to any identified in the Statement of Work).
Any warranty or indemnity applicable to such Customer supplied/specified products will be limited solely to the warranty or indemnity, if any, extended by the original manufacturer or vendor other than NHP to the extent permissible thereunder.
b. Unless otherwise set forth in the Statement ofWork, Customer supplied Products will beshipped to the designated NHP location at theCustomer expense.
i. Where a Customer provides Products to NHPto incorporate in to the final assembledProduct risk in these Products remains with the Customer; and
ii. Where a Customer provides Products to NHPto incorporate in to the final assembledProduct title in these Products remains withthe Customer.
c. Restriction of Hazardous Substances ("RoHS"):The Customer supplied/specified products willmeet all applicable material restrictions asdefined in RoHS. If it does not, the Customerwill notify NHP prior to shipment of theCustomer supplied/specified products to NHP.The Customer will indemnify NHP against anyclaim arising out of NHP's use of the Customersupplied/specified products, where theCustomer is either intentionally ornegligently, in breach of this clause 12c.
13.INSURANCE
During the term of this Agreement, unless otherwise set forth in the Statement of Work, NHP shall maintain, at its sole expense, the following minimum insurance coverages.
a. Workers' Compensation: statutory inaccordance with applicable law, and
b. Public & Product Liability Insurance per policyyear of $10,000,000 any one occurrence inrespect of Public Liability and $10,000,000any one occurrence and in the aggregate inrespect of Products Liability per policy year,and
c. Commercial Automobile Insurance: 3rdproperty damage per occurrence covering allNHP owned, leased, and non-owned vehiclesper policy year.
14.CUSTOMER INFORMATION
a. The Customer represents and warrants that ithas the rights to the information provided ormade available by the Customer to NHP, its employees, affiliates, or other contractors to NHP, including but not limited to technical specifications, drawings, source code, application code, communication interfaces, protocols, and all other documentation (collectively "Customer Information"), for NHP to perform its obligations under this Agreement and that such access to and use of the Customer Information under this Agreement will not infringe or violate any agreement, confidentiality obligations, copyrights, or other intellectual property rights of the original vendor or any other third party. The Customer agrees to indemnify and continue to indemnify NHP, its employees, affiliates, or other contractors to NHP from any claims arising out of NHP's use of the Customer Information pursuant to the Statement of Work where the Customer is either intentionally or negligently, in breach of this clause 14a.
b. In NHP's performance of services, salesactivities, or in connection with the Customer'suse of NHP Products, NHP may obtain,receive, or collect data or information, including the Customer's contract information, computer system profile, NHP Product installation data, and the Customer's usage specific data of NHP Products (collectively, the "Data"). In such cases, the Customer grants NHP a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license to use, compile, distribute, display, store, process, reproduce, or create derivative works of the Data solely to facilitate the performance of sales and services by NHP and its affiliates (including, but not limited to, quality, safety, energy, and security analytics, product and service diagnostics and prognostics, and reporting), and to facilitate or improve the Customer's use of the Products. In addition, the Customer grants NHP and its affiliates a license to use and aggregate the Data in support of NHP's marketing and sales activities. NHP and its affiliates may also use this information in the aggregate, in a form which does not personally identify the Customer, and NHP may share anonymous aggregate data with our third party suppliers and service providers, to improve Products.
15.SAFETY AND STANDARDS
a. NHP is responsible for compliance of the Workwith laws, regulations and standards,including safety regulations and standards ofAustralia that are applicable to the Work at theeffective date of this Agreement.
b. The Customer must inform NHP of any otherlaws, regulations, or standards that may applyto the Work. NHP will be responsible forcompliance with such other safety or other
standards only if documented in the Statement of Work.
c. NHP is not responsible for laws, regulations,or standards that apply to the Customer's (orend user's, if different from the Customer)facility, equipment, process, informationsystem, or data.
16.SITE RULES, LICENSES, PERMITS, SITEPREPARATION
a. NHP agrees to comply with all applicableposted site rules of the Customer (unlessinconsistent with the obligations set forth inthe Statement of Work) and any additionalCustomer's site rules that have beenincorporated into the Statement of Work.
b. Customer is responsible for:
i. all licenses, permits, clearances, and site access rights;
ii. all sites being ready and equipped with all necessary Customer furnished equipment, facilities and power;
iii. the sites, including any required Customer fixtures or facilities being safe, hazard free, structurally sound, and sufficient;
iv. reasonable access to the worksite;
v. properly using, calibrating, operating, monitoring and maintaining the Work consistent with all NHP or third-party provided instructions, warnings, recommendations and documentation; and
vi. all other factors affecting the Work that are outside of the direct control of NHP.
vii. indemnifying and continuing to indemnify NHP for any claims to the percentage extent directly caused by Customer's breach of the obligations listed in section 16.b above.
17.QUALITY, INSPECTIONS AND TESTING
a. NHP follows the general principles of ISO9001as a guide to best practice in a continuousimprovement environment using processesand procedures appropriate to its businessmodel. NHP insists that its major supply linepartners have ISO9001 accreditation.
b. Unless otherwise agreed in the Statement ofWork, customer inspection and testing prior todelivery will be limited to witnessing NHP's orif permitted NHP's Suppliers standard factorytests of the Work or Products on the date andat the location specified by NHP. All such testswill be subject to reasonable advance noticeand may be subject to additional charges.Expenses for Customer's travel is to their ownaccount.
18.GOVERNMENT CLAUSES ANDCONTRACTS
No government contract clauses, specification, or regulations apply to the Work, Products, or otherwise to this Agreement except to the extent agreed in writing by NHP.
19.EXPORT CONTROL
Product(s) and associated materials offered in this quotation and supplied hereunder may be subject to various export laws and regulations. This includes compliance with any export embargos and boycotts to some overseas countries including those overseas countries whose borders the Product(s) may be required to transit in reaching the Customer's nominated final destination. It is the responsibility of the Exporter to comply with all such laws and regulations. It is the Customer's responsibility to liaise with its shipping and forwarding agent in pre- purchase determination of whether any then current regulations might restrict export and transit of the Product(s) to the Customer's nominated final destination and in the subsequent arranging of export clearance and shipping from Australia when the Product(s) are made available ex works. Notwithstanding any of the above, in the event that Australian and/or any other Country's law requires export authorization(s) for the export or re-export of any Product(s) or associated technology, no delivery can be made until such export authorisation(s) is obtained, regardless of any otherwise indicated delivery lead times or notified availability/ex works delivery date(s). In the event that any required export authorisation(s) is denied, NHP will be relieved of any further obligation relative to the sale and delivery of the Product(s) which are the subject to such denial and without liability of any kind whatsoever relative to the Customer or any other parties.
20.INDEPENDENT CONTRACTORS
The parties at all times will be independent. Neither party is an employee, joint venturer, agent or partner of the other; neither party is authorised to assume or create any obligations or liabilities, express or implied, on behalf of, or in the name of the other. The employees, methods, facilities, and equipment of each party at all times will be under the exclusive direction and control of that party.
21.GOVERNING LAW AND FORUM
This Agreement and all disputes arising under it will be governed by and interpreted in accordance with the internal laws and will be subject to the exclusive jurisdiction of the courts of the state, province, or other governmental jurisdiction in which NHP's principal place of business resides but specifically excluding the provisions of the 1980 UN Convention on Contracts for the International Sales of Goods.
22.CONFIDENTIALITY
a. During the term of this Agreement and for aperiod of three (3) years thereafter, each partywill maintain in strict confidence all technicaland business data and information disclosedby one party to the other that is marked"Confidential" and will not use or reveal suchinformation without the prior writtenauthorisation of the other.
b. "Recipient" and "Discloser" shall refer to Customer and NHP in their respective roles as both recipient and discloser of Confidential Information under this Agreement.
c. The obligations of confidentiality and non-use will not apply to information
i. that is published or becomes part of the public domain other than by means of a breach of this Agreement;
ii. that the Recipient can prove by written documentation was known to it prior to disclosure by the Discloser;
iii. that the Recipient subsequently rightfully receives from a third party without an obligation of confidentiality;
iv. that the Discloser discloses to a third party on a non-confidential basis; or
v. that was independently developed by the Recipient.
d. The Recipient shall not use or disclose any Confidential information, except as expressly authorised by this Agreement, and shall protect all such Confidential information using the same degree of care which Recipient uses with respect to its own similar proprietary information, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances. Recipient shall take prompt and appropriate action to prevent unauthorised use or disclosure of the Confidential Information.
e. If any Confidential information must be disclosed to any third party by reason of legal, accounting or regulatory requirements beyond the reasonable control of the Recipient, the Recipient shall promptly notify the Discloser of the order or request and permit the Discloser(at its own expense) to seek an appropriate protective order.
23.NOTICE
Written notice will be deemed to have been given when the notifying party delivers such notice to the other party or has sent such notice to the other party in accordance with the Statement of Work.