PURCHASE ORDER TERMS AND CONDITIONS

1. SUPPLY OF GOODS AND/OR SERVICES

1.1 The Supplier agrees to sell and Upton Engineering and Manufacturing agrees to buy the Goods and/or Services on and subject to the Order and these Purchase Order Terms and Conditions (“the Terms”).

1.2 These Terms constitute the entire agreement and supersede any other agreement or understanding between the parties. If the Supplier’s terms are supplied with the Goods or Services, those terms will be of no legal effect (even if any representative of Upton Engineering and Manufacturing signs those terms or annexes the terms and conditions to any Order).

1.3 The Supplier must, in supplying the Goods or performing the Services, comply with the Upton Engineering and Manufacturing Code of Conduct.

1.4 On request by Upton Engineering and Manufacturing, the Supplier must provide any information and assistance reasonably required by Upton Engineering and Manufacturing on any matter relating to the Goods and/or Services.

2. DELIVERY

2.1 The Supplier must deliver the Goods to the Delivery Address by the Delivery Date.

2.2 The Supplier must ensure that the Goods are suitably packed to avoid damage in transit or in storage.

2.3 Packages must be marked with the Order number, item number, destination, contents, quantity, date and method of dispatch and weight of each package.

2.4 On reasonable notice, the Supplier must provide and procure for Upton Engineering and Manufacturing (and its representatives) full access to all premises and locations to allow Upton Engineering and Manufacturing to inspect the Goods at any time prior to their Delivery.

3. TITLE

3.1. Title in the Goods passes to Upton Engineering and Manufacturing upon delivery.

4. PRICE

4.1 Upton Engineering and Manufacturing must pay the Supplier the Price for the Goods and/or Services based on the rates and quantities set out in the Order.

4.2 Upton Engineering and Manufacturing may direct the Supplier to alter, add to or omit all or part of the Goods and/or Services. The price for such variation will be based on the rates set out in the Order unless otherwise agreed by the parties.

4.3 The Price is inclusive of all costs incurred by the Supplier in the supply of the Goods and/or performance of the Services.

Upton Industries Pty Ltd

ABN 32 623 868 422

ACN 623 868 422

4.4 If GST is imposed on any supply made by the Supplier under or in connection with the Order, the Supplier must provide Upton Engineering and Manufacturing with a valid tax invoice before Upton Engineering and Manufacturing will pay the GST amount to the Supplier.

5. INVOICING

5.1 The Supplier must provide to Upton Engineering and Manufacturing a Supplier Delivery Document upon delivery of the Goods and/or completion of the Services. All invoices must include an Order Number.

5.2 Upton Engineering and Manufacturing is not obliged to pay any invoice or part of the invoice that has not been submitted in accordance with the Terms (including but not limited to invoices submitted without an Order Number) or which relates to Goods or Services that have not been accepted by Upton Engineering and Manufacturing and are the subject of a Dispute (as defined in clause 8.1).

5.3 Subject to clause 5.2, Upton Engineering and Manufacturing will pay all invoices that comply with the Terms within 45 days from the end of the month in which the invoice was received, except where Upton Engineering and Manufacturing disputes the Supplier Delivery Document or invoice, in which case:

Upton Engineering and Manufacturing may withhold payment pending resolution of the Dispute; and

if upon resolution of the Dispute, it is determined that Upton Engineering and Manufacturing must pay an amount to the Supplier, Upton Engineering and Manufacturing must pay that amount within 14 days of such resolution.

5.4 Upton Engineering and Manufacturing may reduce any payment due to the Supplier under the Terms by any amount which the Supplier must pay Upton Engineering and Manufacturing, including costs, charges, damages and expenses and any debts owed by the Supplier to Upton Engineering and Manufacturing on any account whatsoever. This does not limit Upton Engineering and Manufacturing ‘s right to recover those amounts in other way.

6. QUALITY

6.1 The Supplier warrants that:

a) the Goods and/or Services match the description referred to in the Order, and conform to all relevant specifications, drawings, samples and descriptions;

b) the Goods and/or Services are fit for Upton Engineering and Manufacturing ’s intended purpose;

c) the Goods are of reasonable quality and, unless otherwise specified in the Order, are new;

d) the Services will be performed in a thorough, professional and competent manner using the standard of care, skill and diligence that would reasonably be expected from an experienced provider of similar services and expertise in Australia;

e) the Goods are free of all liens and encumbrances and the Supplier has good title to them;

f) its employees, contractors, and agents will at all times hold all licences required by Law for the supply of the Goods and/or the performance of the Services; and

g) there are no terms, conditions or restrictions which will become binding on Upton Engineering and Manufacturing as a result of the sale of the Goods to Upton Engineering and Manufacturing or the use of the Goods by Upton Engineering and Manufacturing or the resale or hiring out of the Goods by Upton Engineering and Manufacturing.

7. DEFECTIVE GOODS AND SERVICES

7.1 If, any of the Goods or Services are found to be Defective, Upton Engineering and Manufacturing may, at the Supplier’s cost:

return the Defective Goods to the Supplier;

reject the Defective Services;

repair or make good the Defective Goods; or

re-perform or make good the Defective Services.

7.2 The Supplier must at the Supplier’s cost, if requested to do so by Upton Engineering and Manufacturing:

a) repair or replace the Defective Goods;

b) re-perform or make good the Defective Services; or

c) reimburse Upton Engineering and Manufacturing for any expenses incurred in repairing, re-performing or making good (as the case may be) any Defective Goods or Services.

8. DISPUTE RESOLUTON

8.1. If a difference or dispute between the parties arises in connection with an invoice or the subject matter or interpretation of the Terms (“Dispute”), either party may give the other party written notice of the Dispute identifying and providing details of the Dispute (“Dispute Notice”).

8.2. Within 7 business days of receipt of the Dispute Notice, representatives of the parties having authority to bind the parties shall discuss the Dispute (“Dispute Meeting”).

8.3. Providing the provisions of this clause have been complied with and the Dispute has not been resolved within 10 business days following the Dispute Meeting, either party may commence proceedings in court.

9. INTELLECTUAL PROPERTY

9.1 If the Supplier is manufacturing or procuring the manufacture of the Goods and the Goods are required to be manufactured or fabricated to Upton Engineering and Manufacturing ’s specifications or special requirements (and are not goods of the type ordinarily manufactured by the Supplier or the Supplier’s sub-contractors) Upton Engineering and Manufacturing will own all intellectual property rights of any kind that arise as a result of, or in the course of, the design or manufacture of the Goods.

9.2 If the Services are required to be performed to Upton Engineering and Manufacturing ’s specifications or special requirements Upton Engineering and Manufacturing will own all intellectual property rights of any kind that arise as a result of, or in the course of, the performance of the Services.

9.3 The Supplier will do all necessary acts to give effect to Upton Engineering and Manufacturing ’s rights under clauses 9.1 and 9.2.

9.4 The Supplier warrants that the supply of the Services and Goods to Upton Engineering and Manufacturing, the use of the Goods by Upton Engineering and Manufacturing or any resale of the Goods by Upton Engineering and Manufacturing will not infringe the intellectual property rights of any person and Upton Engineering and Manufacturing will not have to pay any licence fee, royalty or other amount to any person in connection with the Services or Goods.

10. GENERAL

10.1 Either party may terminate an Order in its absolute discretion by giving the other party 7 days’ notice in writing prior to the Delivery Date. In such case no Price will be payable by Upton Engineering and Manufacturing. Termination of the Order pursuant to this clause shall be without prejudice to the rights of either party which accrued before termination.

10.2 Upton Engineering and Manufacturing may terminate an Order with immediate effect where it reasonably believes that the Supplier has breached the Code of Conduct in any material respect. The only Price payable to the Supplier following termination of the Order will be for Goods or Services delivered to Upton Engineering and Manufacturing in accordance with the Terms prior to the breach.

10.3 Any amount paid by Upton Engineering and Manufacturing to any subcontractor or supplier of the Supplier pursuant to any notice of claim served on Upton Engineering and Manufacturing by such subcontractor or supplier under the Contractors Debt Act 1997 (NSW) or the Building and Construction Industry Security of Payment Act 2002 (Vic) (or any equivalent legislation in other states or territories) shall be a debt due and payable by the Supplier to Upton Engineering and Manufacturing .

10.4 Upton Engineering and Manufacturing shall have no liability to the Supplier in respect of any matter in connection with the Order unless a claim together with full particulars is lodged with Upton Engineering and Manufacturing within 21 days of the occurrence of the event on which the claim is based.

10.5 If any provision or part of any provision of the Terms is unenforceable, such unenforceability shall not affect any other part of such provision or any other provision of the Terms.

10.6 Delivery acronyms such as FCA, FOB, CIF shall be interpreted in accordance with INCOTERMS 2000 edition.

10.7 The Terms shall be governed by the laws of New South Wales and the Parties agree to submit to the jurisdiction of the Courts of that state.

10.8 Upton Engineering and Manufacturing agrees that it will deal with all personal information provided by the Supplier in accordance with its legal obligations and the Upton Engineering and Manufacturing Privacy Policy, a copy of which is available on the Website.

10.9 If the Supplier subcontracts any part of the Services:

(a) The terms of the subcontract must be consistent with the Terms;

(b) The Supplier’s obligations are not lessened or otherwise affected by subcontracting the performance of those Services; and

(c) The Supplier is responsible for ensuring their subcontractors’ compliance with the Code of Conduct.

11. LIABILITY AND INDEMNITY

11.1 The Supplier shall indemnify and hold Upton Engineering and Manufacturing harmless against any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment (including any legal costs on a full indemnity basis) arising out of, or in connection with, the supply of the Goods or Services in respect of:

personal injury to, or the death of, any person;

loss of, damage to, or loss of use of, any property, including property of Upton Engineering and Manufacturing;

any claim that the Goods and/or Services infringe the intellectual property rights of a third party;

a breach of clause 6 of these Terms; and

wrongful or negligent act or omission by or on behalf of the Supplier, including a breach of the Terms.

11.2 The Supplier is responsible for all acts or omissions of the Supplier’s officers, employees, agents and contractors in relation to the provision of the Services and supply of the Goods.

11.3 The Supplier must remedy any environmental damage or degradation resulting from the Supplier’s actions or omissions.

12. DEFINITIONS

ACL means the Australian Consumer Law, which is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Upton Engineering and Manufacturing means Upton Engineering and Manufacturing Operations Pty Limited ACN 074 126 971or the Upton Engineering and Manufacturing entity named in the Order.

Code of Conduct means the Upton Engineering and Manufacturing Code of Conduct

Defective means Goods and/or Services (or any aspect of them) which are not in accordance with the Order or which are damaged, deficient, faulty, inadequate or incomplete.

Delivery Address means the place for delivery specified on the Order.

Delivery Date means the delivery date specified on the Order, or a date subsequently notified in writing by Upton Engineering and Manufacturing to the Supplier.

Goods means the goods, if any, described in the Order.

GST has the meaning given to that term under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Law means:

Commonwealth, State and local government legislation including regulations, by-laws, orders, awards and proclamations;

common law and equity;

authority requirements and consents, certificates, licences, permits and approvals (including conditions in respect of those consents, certificates, licences, permits and approvals); and

guidelines of Authorities with which the Supplier is legally required to comply.

Order means the purchase order issued by Upton Engineering and Manufacturing to the Supplier from time to time containing, amongst other things, a description of the Goods and/or Services.

Order Number means a number, which appears on all valid Orders.

Price means the price set out in the Order which is exclusive of GST, but is inclusive of all other costs and charges.

Services means the services, if any, described in the Order.

Small Business means a business that employs less than 20 people (including casual employees employed on a regular and systematic basis) or such as other number as prescribed by the ACL.

Supplier means the party identified as such in the Order.

Supplier Delivery Document means a delivery document, dispatch note, time sheet, claim form or such other document which evidences the delivery of Goods or performance of Services.

Website means http://www.uptonengineering.com.au