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").
These Supplemental Conditions, Statement of Work along with NHP Conditions of Sale (COS23) 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 (COS23), the following order of precedence shall prevail;
- The Statement of Work,
- These Supplemental Conditions (COS23P),
- NHP Terms and Conditions of Sale (COS23)
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.
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.
- Performance Security: Any security agreed to by NHP will be given in the form of a bank guarantee, issued by ANZ Banking Group Limited in the bank's standard guarantee format with a finite expiry date.
- Payment Security: NHP reserves its right to require the Customer to provide Payment Security upon order placement in a form of Security 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
- NHP will submit drawings by email once, except where;
- Correction of drawing errors which were made by NHP; or
- Customer requested changes under clause 7.
- Apart from any use permitted under the Copyright Act 1968, no part may be reproduced or altered by any process, nor may any other exclusive right be exercised, without the written permission of NHP.
- Annotations and mark-ups, for the express purpose of requesting design changes, must be clear and distinct from that of the original works.
- No customisations or changes are to be made to the drawing borders and/or title blocks.
Sample products will not be provided unless otherwise set forth in the Statement of Work.
6. CUSTOMER ACCEPTANCE
- Acceptance of the Work occurs either
- if no acceptance criteria is specified in the Statement of Work then acceptance occurs upon Delivery; or
- on the date the Work conforms to acceptance criteria in the Statement of Work or is otherwise beneficially used by the Customer, but in no event later than 60 days from start-up or 120 days following Delivery whichever occurs first.
- Interim Approvals. Any NHP provided interim Work deliverable requiring Customer approval pursuant to the Statement of Work will be deemed accepted if formal Customer approval, written or as otherwise required, is not received by NHP within two calendar weeks after the date submitted.
- Acceptance will not be delayed on account of minor omissions, additions, or defects, which do not materially affect the intended use of the Work.
Any change resulting from any of the following circumstances is subject to equitable adjustments to price, scheduling, and other affected terms and conditions:
- Customer requested order changes, including those affecting the identity, scope, and delivery of the Work or Products;
- Concealed or otherwise unknown physical conditions differing materially from those indicated or anticipated in the Statement of Work or that otherwise differ materially from those ordinarily found under similar circumstances;
- Any delays caused by Customer, its employees, affiliates, other contractors to Customer, or any other party within Customer's reasonable control;
- Any emergency endangering persons or property. In such circumstances, NHP may act at its discretion to prevent damage, injury, or loss.
All changes, except actions necessitated by emergencies as provided in (d) above, must be executed in writing, signed by both parties or otherwise definitively authorised by both parties. NHP will not begin work on a change until such change is properly authorised. All claims relating to a change must be made within a reasonable time after the occurrence giving rise to the claim. If the parties cannot agree on a change in pricing or schedule, it will be resolved pursuant to the dispute resolution process 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.
- Default by NHP. If NHP, its employees, affiliates, or other contractors to NHP are in material default of their obligations in the Agreement, the Customer shall give NHP written notice, and NHP shall have 5 business days to begin action and 90 days (or longer if agreed to in writing) to cure the default. If NHP fails to cure the default, the Customer may terminate this Agreement to the extent that NHP is in default. NHP's liability shall be limited to
- the proportionate price of the terminated portion of the Work and
- any documented direct excess reprocurement costs incurred by the Customer to complete the Work to a capability not exceeding that provided in the Statement of Work, but NHP's liability for documented direct excess reprocurement costs shall be limited to 110% of any amounts paid for the terminated portion of the Work.
- Convenience of the Customer. Except as set forth in the Statement of Work, the Customer may terminate this Agreement for convenience prior to shipment by giving written notice to NHP. The Customer shall pay for any Work performed before receipt of notice 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.
- Delays or Default by the Customer. If the Customer, its employees, affiliates, other contractors to the Customer, or any other party within the Customer's reasonable control causes the delivery, installation, or acceptance of the Work to be delayed beyond the time period set forth in the Statement of Work, or if the Customer materially fails to fulfil any condition of the terms of this Agreement, or if in NHP's reasonable opinion determines that the Customer may not be able to make payment of any amount due and payable, NHP may elect to:
- withhold deliveries and suspend Work, or
- place the Products in storage at the Customer's risk and cost. If such delay or other non-fulfillment is not rectified by the Customer within a reasonable time upon notice, NHP may terminate this Agreement, and the Customer shall pay all costs of termination (including third-party commitments, reasonable profit, and overhead) upon submission of NHP's invoices.
- Temporary Suspension of Work by Customer. Except as set forth in the Statement of Work, the Customer may, by providing prior written notice, request that NHP temporarily suspend performance and delivery of the Work, in whole or in part. The notice shall specify the portion of the Work to be suspended, the effective date of suspension, the Customer's anticipated duration of suspension, and the reasons for the suspension. NHP shall suspend Work as requested, except as necessary for the care or preservation of Work previously executed. On or before the date the suspension 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
- Standard Software. Software comprised of firmware or standard software (including, but not limited to packaged software, pre-existing templates, models and library files, and commercially available software) (collectively "Standard Software") is subject to the Customer's acceptance of additional terms and conditions set forth in separate NHP or third-party click-wrap license agreements provided with such Standard Software. Such terms and conditions shall be the exclusive terms and conditions applicable to such Standard Software, excluding the Customer's obligation to pay any license fee which shall be identified in the Statement of Work.
- Documentation and Application Software. NHP hereby grants to the Customer a non-exclusive, non-transferable license to modify and use solely in conjunction with the Work all documentation and any Application Software created 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.
- In the absence of a separate license agreement for software provided by NHP under a Statement of Work, NHP hereby grants the Customer a non-exclusive, non-transferable license to use such software solely in conjunction with the Work for the project identified in the Statement of Work without the right to sublicense, disclose, disassemble, decompile, reverse engineer, or otherwise modify the software (except for modifications of Application Software as set forth above). Ownership of the respective NHP or third-party software shall remain with NHP or the third party.
- Ownership of Pre-existing Intellectual Property. 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.
- No Other Licenses. Except as expressly set forth in this Agreement, no license under any patents, trademarks, copyrights, confidential information, trade secrets, mask rights, or other intellectual property rights is granted or implied 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:
- promptly informs NHP of the alleged infringement in writing;
- provides NHP the exclusive right to defend and settle the suit, at NHP's expense; and,
- provides all reasonable information and assistance requested for the defence. NHP shall have no liability for any infringement that is based upon or arises out of:
- compliance with the Customer's instructions, specifications or designs;
- use of Work or Products in the Customer or third-party process; or,
- combinations with other equipment, software or materials not supplied by NHP. The foregoing states the sole and exclusive 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.
- Unless otherwise set forth in the Statement of Work, NHP does not warrant or indemnify and will not otherwise be liable for
- design, materials, or construction criteria furnished or specified by the Customer and incorporated into the Work or Products,
- Products supplied by, made by or sourced from the Customer or other manufacturers or vendors specified by the Customer; or
- commercially available computer software and hardware. (Such Customer supplied/specified products shall include but not be limited to any identified in the Statement of Work).
- Unless otherwise set forth in the Statement of Work, Customer supplied Products will be shipped to the designated NHP location at the Customer expense.
- Where a Customer provides Products to NHP to incorporate in to the final assembled Product risk in these Products remains with the Customer; and
- Where a Customer provides Products to NHP to incorporate in to the final assembled Product title in these Products remains with the Customer.
- Restriction of Hazardous Substances ("RoHS"): The Customer supplied/specified products will meet all applicable material restrictions as defined in RoHS. If it does not, the Customer will notify NHP prior to shipment of the Customer supplied/specified products to NHP. The Customer will indemnify NHP against any claim arising out of NHP's use of the Customer supplied/specified products.
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:
- Workers' Compensation: statutory in accordance with applicable law, and
- Public & Product Liability Insurance per policy year of $10,000,000 any one occurrence in respect of Public Liability and $10,000,000 any one occurrence and in the aggregate in respect of Products Liability per policy year, and
- Commercial Automobile Insurance: 3rd property damage per occurrence covering all NHP owned, leased, and non-owned vehicles per policy year.
14. CUSTOMER INFORMATION.
- The Customer represents and warrants that it has the rights to the information provided or made 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.
- In NHP's performance of services, sales activities, or in connection with the Customer's use 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.
- NHP is responsible for compliance of the Work with laws, regulations and standards, including safety regulations and standards of Australia that are applicable to the Work at the effective date of this Agreement.
- The Customer must inform NHP of any other laws, regulations, or standards that may apply to the Work. NHP will be responsible for compliance with such other safety or other standards only if documented in the Statement of Work.
- NHP is not responsible for laws, regulations, or standards that apply to the Customer's (or end user's, if different from the Customer) facility, equipment, process, information system, or data.
16. SITE RULES, LICENSES, PERMITS, SITE PREPARATION.
- NHP agrees to comply with all applicable posted site rules of the Customer (unless inconsistent with the obligations set forth in the Statement of Work) and any additional Customer's site rules that have been incorporated into the Statement of Work.
- Customer is responsible for:
- all licenses, permits, clearances, and site access rights;
- all sites being ready and equipped with all necessary Customer furnished equipment, facilities and power;
- the sites, including any required Customer fixtures or facilities being safe, hazard free, structurally sound, and sufficient;
- reasonable access to the worksite;
- properly using, calibrating, operating, monitoring and maintaining the Work consistent with all NHP or third-party provided instructions, warnings, recommendations and documentation; and
- all other factors affecting the Work that are outside of the direct control of NHP.
- 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.
- NHP follows the general principles of ISO9001 as a guide to best practice in a continuous improvement environment using processes and procedures appropriate to its business model. NHP insists that its major supply line partners have ISO9001 accreditation.
- Unless otherwise agreed in the Statement of Work, customer inspection and testing prior to delivery will be limited to witnessing NHP's or if permitted NHP's Suppliers standard factory tests of the Work or Products on the date and at the location specified by NHP. All such tests will be subject to reasonable advance notice and may be subject to additional charges. Expenses for Customer's travel is to their own account.
18. GOVERNMENT CLAUSES AND CONTRACTS.
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.
- During the term of this Agreement and for a period of three (3) years thereafter, each party will maintain in strict confidence all technical and business data and information disclosed by one party to the other that is marked "Confidential" and will not use or reveal such information without the prior written authorisation of the other.
- "Recipient" and "Discloser" shall refer to Customer and NHP in their respective roles as both recipient and discloser of Confidential Information under this Agreement.
- The obligations of confidentiality and non-use will not apply to information
- that is published or becomes part of the public domain other than by means of a breach of this Agreement;
- that the Recipient can prove by written documentation was known to it prior to disclosure by the Discloser;
- that the Recipient subsequently rightfully receives from a third party without an obligation of confidentiality;
- that the Discloser discloses to a third party on a non-confidential basis; or
- that was independently developed by the Recipient.
- 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.
- 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.
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.