CONDITIONS OF STOCK SALE

Australian Powerline Industries

ABN 13 069 786 670

CONDITIONS OF SALE STOCK AND CATALOGUE GOODS

1. Application

1.1 A tender by Australian Powerline Industries with these Conditions of Sale – Stock and Catalogue Goods (“these Conditions”) shall be subject to these Conditions. Any contract (“contract”) between Australian Powerline Industries and a
party (“Purchaser”) upon these Conditions shall be governed by these Conditions and by any other terms
and conditions agreed in writing between Purchaser and Australian Powerline Industries.

1.2 Australian Powerline Industries may vary or withdraw its tender at any time prior to acceptance. Subject thereto, unless otherwise stated by Australian Powerline Industries the tender shall remain valid for 30 days from the date thereof.

1.3 Any tender which quotes a budget, preliminary or estimate price is subject to variation in any respect and shall not be considered an offer capable of acceptance until confirmed in writing by Australian Powerline Industries. Any preliminary specifications, illustrations, drawings, data, dimensions and weights submitted by Australian Powerline Industries with a tender are illustrative and approximate only and do not form part of the contract unless expressly confirmed and incorporated herein.

  1. In these Conditions “tender” means a tender, submission, proposal, offer (including counteroffer) or quotation in connection with the goods the subject of the contract.
  2. Specification

2.1 Goods shall be supplied in accordance with these Conditions and any specification included in the contract, and Purchaser is responsible for satisfying itself as to the suitability of such goods for Purchaser's application. In these Conditions “goods” means the goods and any services under the contract and “services” means any services under the contract (as the case may be).

  1. Australian Powerline Industries shall not be bound by any representation concerning the scope of supply, performance or characteristics of goods unless expressly incorporated in the contract.
  2. Australian Powerline Industries’s General Obligations
  1. Australian Powerline Industries shall supply the goods in accordance with the requirements of the contract and by the time(s) required by the contract as such time(s) may be extended from time to time as provided for in the contract. Australian Powerline Industries will ensure that the goods conform to any applicable standards and codes.
  2. Purchaser's General Obligations
  1. The Purchaser shall pay Australian Powerline Industries the price for the goods (the “contract price”) as the same may be adjusted from time to time as provided for in the contract.
  2. Price
5.1 Except as otherwise provided elsewhere in the contract:
(a)
Unless credit has been extended to Purchaser by Australian Powerline Industries invoices for goods shall be payable upon delivery;
(b)
Where credit has been extended to Purchaser by Australian Powerline Industries invoices for goods shall be payable within
thirty (30) days of the date of invoice;
(c)
The prices quoted do not include the cost of delivery;
(d)
Any increase in the cost to Australian Powerline Industries for the provision of the goods as a result of a variation in exchange rates or change in law between the date of Australian Powerline Industries’s tender and the date of delivery shall be borne by the Purchaser and the contract price shall be adjusted accordingly. In these Conditions “change in law” means when any legislation, regulation, bylaw, ordinance, standard, award or order comes into effect or is changed, including but not limited to any new tax, duty or other impost or change in the rate of any tax, duty or other impost;
(e)
Title (legal and beneficial ownership) in the goods shall not pass to Purchaser until Australian Powerline Industries has been paid the contract price for them in full;
(f)
Prices include the cost of standard packing material.

5.2 Purchaser shall pay interest to Australian Powerline Industries on any moneys outstanding on and from the date thirty one (31)
days after the date of receipt of the relevant invoice by Purchaser (“the interest date”), such interest to be calculated from the interest date until such outstanding moneys are paid. The interest rate shall be the maximum per annum commercial overdraft rate determined by the Commonwealth Bank of Australia on the interest date plus 3%, accruing daily.

5.3 The parties hereby expressly agree that any payment obligations pursuant to the contract which are presently denominated in a national currency of a member state of the European Community or in “ECU” shall be automatically converted to an equivalent obligation in the proposed single European currency unit (the “euro”) on the date on which the euro becomes the sole legal currency of such member state. The
rate of conversion shall be the irrevocably fixed conversion rate to be adopted by the Council of the European Communities. The contract shall not be amended or terminated as a result of the conversion referred to in the foregoing sentence, and shall remain in full force and effect.

6. Goods and Services Tax

6.1 The contract price and all other amounts referred to in the contract are exclusive of GST.

6.2 If GST is payable in respect of any supply made under or in connection with the contract, the recipient
of the supply must reimburse the supplier for the amount of that GST, PROVIDED THAT the supplier must first issue a tax invoice for the supply to the recipient of the supply.

6.3 If the amount payable for any supply made under or in connection with the contract is calculated by reference to any cost or expense incurred by the supplier, the amount payable is to be calculated using the GSTexclusive amount of that cost or expense.

6.4 If there is an adjustment event in relation to a supply made under or in connection with the contract:

(a)
the supplier must refund to the recipient of the supply the amount by which any GST reimbursed pursuant to clause 6.2 exceeds the adjusted GST; or
(b)
The recipient of the supply must pay the supplier the amount by which the adjusted GST exceeds
the GST reimbursed pursuant to clause 6.2.

6.5 For the purpose of calculating the GST to be reimbursed to the supplier pursuant to clause 6.2, the amount payable for the supply or any part thereof which is expressed or calculated in a currency other than Australian dollars shall be converted into Australian dollars:

(a)
using the method required to be used by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or any relevant regulation, ruling or determination under that Act; or
(b)
If no method is specified by that Act or any such regulation, ruling or determination, using the relevant midmarket exchange rate quoted by Westpac Banking Corporation for the date on which the supplier issues an invoice or receives payment for the supply, whichever is earlier.
  1. In this clause 6, “GST” means goods and services tax levied pursuant to the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the expressions “supply”, “tax invoice”, “input tax credit” and “adjustment event” have the same meanings as in that Act.
  2. Delivery, Transfer of Title and Risk
7.1 Where the contract provides for delivery by Australian Powerline Industries within Australia:
(a)
Except as otherwise provided elsewhere in the contract Purchaser shall be responsible for offloading the goods when delivered on board the transportation vehicle to the nominated address. All risks of loss or damage to the goods shall transfer to Purchaser on such delivery;
(b)
Title (legal and beneficial ownership) in the goods shall not pass to Purchaser until Australian Powerline Industries has been paid the contract price for them in full.
7.2 Where the contract provides for delivery by Australian Powerline Industries by export to a country other than Australia:
(a)
Except as otherwise specifically provided elsewhere in the contract Australian Powerline Industries shall deliver the goods FOB at the port of despatch, and Purchaser shall obtain any necessary import clearances;
(b)
title (legal and beneficial ownership) in the goods and (as provided in INCOTERMS 2000) all risks of loss or damage to them shall pass to Purchaser upon loading on board the transportation vehicle at the port or depot or other point of export unless otherwise provided in the contract.
7.3 Until the passing of title in the goods delivered to Purchaser:
(a)
Purchaser shall hold the goods as bailee to the same extent as if he were a bailee for reward and shall clearly identify the goods as belonging to Australian Powerline Industries.
(b)
Purchaser may not modify, sell or otherwise remove, dispose or grant to a third party any interest in the goods and shall store and maintain the goods in good condition and allow Australian Powerline Industries unrestricted access to them for the purposes of inspection, protection or removal, and, for the purpose of such removal, Purchaser hereby grants Australian Powerline Industries an irrevocable licence to enter the premises where the goods are and sever them from any other property to which they may be attached.

7.4 If Purchaser does not take delivery of goods at the nominated address or otherwise at the time for delivery as provided in the contract Australian Powerline Industries shall be entitled on behalf of Purchaser to put the goods into storage at Purchaser's expense. Australian Powerline Industries shall be deemed to have delivered such goods to Purchaser on storage and shall be entitled to payment on presentation of the warehouse receipt in place of any bill of lading or similar document otherwise required under the contract. Risk shall pass to Purchaser on storage, but title shall only pass in accordance with the provisions of this clause 7.

7.5 For goods to be supplied outside of Australia the contract price does not include any duty, customs, fees or other impost on the goods or on the equipment, property or activities of Australian Powerline Industries, its subcontractors or any of their respective employees in relation to the contract levied outside Australia or any tax on or withholding from any payment to Australian Powerline Industries or on the contract levied outside Australia and the same shall be for the account of Purchaser.

7.6 (a) Up to the time the risk of loss or damage to the goods passes to the Purchaser, and subject to clause 7.6 (b), where loss of or damage to the goods (excluding loss or damage caused by or in any way connected with offloading of the goods) occurs during transport or delivery of the goods by or on behalf of Australian Powerline Industries, Australian Powerline Industries shall at its option repair or replace the goods lost or damaged, but shall not otherwise be liable for or in respect of such loss or damage or any delay consequent thereon.

(b) Unless a claim for the loss or damage referred to in clause 7.6 (a) is made in writing and received by Australian Powerline Industries within 7 days of delivery, or within the time necessary to comply with any subcontractor’s conditions of carriage, whichever is the lesser, Australian Powerline Industries shall not be liable for or in respect of such loss or damage.

8. Warranty

8.1 Australian Powerline Industries warrants that the goods supplied shall, under proper use, be free from defects in materials and workmanship and conform to the contract. In this clause 8 "proper use" means installation, commissioning, operation and maintenance in accordance with Australian Powerline Industries's and manufacturer's documentation and good engineering practice, and “defect” means any defect (including any omission) in materials or workmanship and any nonconformity with the contract.

8.2 Australian Powerline Industries's obligation under this warranty shall be limited to making good by repair or replacement, at Australian Powerline Industries's option, of any goods in which any defect appears and is notified by Purchaser to Australian Powerline Industries before the expiry of a period specified in the contract, or if none specified the period ending 12 months after first putting such goods into use or 18 months after despatch from Australian Powerline Industries’s premises, whichever is earlier. In respect of goods which have been repaired or replaced hereunder, Australian Powerline Industries's obligation shall, if not expiring sooner, in any event expire 24 months after first despatch of the original goods. Items which are replaced during the warranty period shall become the property of Australian Powerline Industries.

8.3 Australian Powerline Industries's obligation under this warranty shall not extend to any failure caused by fair wear and tear, or designs, specifications and things which are outside Australian Powerline Industries's scope of supply, accidents, misuse, neglect, lack of proper use, or repairs or modifications to the goods which have been made without Australian Powerline Industries's approval. Australian Powerline Industries's obligation is subject to Australian Powerline Industries being given prompt notice by Purchaser of the appearance of the defect and a reasonable opportunity to investigate it.

8.4 Australian Powerline Industries warrants that the services will be performed with due care, skill and diligence, and in accordance with the contract. Australian Powerline Industries's obligation under this warranty shall be limited to, at Australian Powerline Industries's option, the performance or reperformance, or the cost of performing or reperforming, such services that fail to meet the requirements of the contract where that failure is notified by the Purchaser to Australian Powerline Industries before the expiry of the period ending 12 months after the performance or purported performance of those services.

8.5 Australian Powerline Industries's liability to the Purchaser and the Purchaser's remedies in respect of the goods and any loss or damage resulting therefrom are solely and exclusively as stated in this clause 8, and Australian Powerline Industries shall have no liability unless notified by the Purchaser to Australian Powerline Industries prior to expiry of the applicable warranty period described above.

  1. The undertaking and obligations of Australian Powerline Industries under this clause 8 are in place of and exclude to the fullest extent permitted by law all other warranties and conditions, whether oral, written, statutory, express or implied. Subject to clause 13.3, IMPLIED WARRANTIES AND CONDITIONS OF FITNESS FOR PURPOSE AND MERCHANTABILITY ARE HEREBY EXCLUDED TO THE FULL EXTENT PERMITTED BY LAW.
  2. Completion

9.1 Australian Powerline Industries shall supply the goods hereunder within the time required by the contract. Australian Powerline Industries shall be entitled to a reasonable extension of time for the performance of its obligations hereunder where any of the following causes delay to Australian Powerline Industries:

(a)
Variation in the scope of supply under clause 10;
(b)
Any act, matter or thing which could not have been reasonably foreseen by Australian Powerline Industries;
(c)
Change in law;
(d)
Any act or omission of Purchaser or any contractor, consultant, representative or agent thereof;
(e)
Force Majeure under clause 14;
(f)
Suspension under clause 15.3.

10. Variations

  1. Unless otherwise agreed any variation to the goods to be supplied hereunder shall be valued in accordance with Australian Powerline Industries’s standard prices for variations (a copy of which may be inspected at the office of Australian Powerline Industries and a copy of which shall be issued to Purchaser on request) existing at the time the goods the subject of the variation are supplied (or if none, variations shall be valued at a reasonable rate and any rates usually charged by Australian Powerline Industries for similar work shall be deemed to be reasonable).
  2. Drawings and Documentation

11.1 All designs, drawings and other technical information relating to the goods, including any software provided by Australian Powerline Industries under the contract (“technical information”), and the intellectual property rights therein shall be and remain the property of Australian Powerline Industries. Any drawings and documentation for goods supplied hereunder shall be standard issue technical literature.

11.2 Any descriptive or shipping specifications, illustrations, drawings, data, dimensions and weights contained in Australian Powerline Industries’s catalogues, price lists or publicity material or submitted with Australian Powerline Industries’s tender are illustrative and approximate only and do not form part of the contract unless certified by Australian Powerline Industries in writing, in which event they shall be subject to generally recognised tolerances.

11.3 Technical information shall be kept confidential by Purchaser, its employees, agents or subcontractors, shall not be copied, modified or disclosed by any of them and shall not be used by them otherwise than for the purposes of the operation and maintenance of the goods. In the event that Purchaser does not accept Australian Powerline Industries’s tender it shall return to Australian Powerline Industries all technical information supplied by Australian Powerline Industries together with any copies made.

  1. Australian Powerline Industries grants to Purchaser the nonexclusive and nontransferable right to use the technical information, including software, provided by Australian Powerline Industries for the life of the goods supplied under the contract for the purposes of their operation and maintenance in the place and manner anticipated at the time of Australian Powerline Industries’s tender and for no other purpose.
  2. Intellectual Property Rights

12.1 Australian Powerline Industries shall indemnify Purchaser against damages and costs awarded against Purchaser for infringement of any intellectual property right granted or registered at the date of contract in the country of destination of the goods specified in the contract (or, if none be specified, in Australia) and resulting from the use or sale of the goods but this indemnity shall not apply to any infringement which is due to the association or combination of the goods with any other article, apparatus or device or to any goods or parts thereof made to designs supplied by Purchaser.

  1. This indemnity is conditional on Purchaser giving Australian Powerline Industries prompt written notice of any claim for infringement and permitting Australian Powerline Industries (at Australian Powerline Industries's expense) to conduct on Purchaser's behalf and in the name of Purchaser any litigation or negotiations in respect thereof. The foregoing states Australian Powerline Industries's entire liability for intellectual property right infringement.
  2. Limitation of Liability

13.1 Notwithstanding any other provision of the contract, the liability of Australian Powerline Industries to the Purchaser, whether arising under or in connection with the contract or the performance or nonperformance thereof or anything incidental thereto, and whether by way of indemnity, by statute (to the extent that it is possible to exclude such liability), in tort (for negligence or otherwise), or on any other basis in law or equity is hereby limited and excluded as follows:

(a)
Australian Powerline Industries shall have no liability whatsoever to the Purchaser for loss of use, production, profit, revenue, business, data, contract or anticipated saving, or for any financing costs or increase in operating costs or any economic loss or for any special, indirect or consequential loss or damage;
(b)
The total aggregate liability of Australian Powerline Industries to the Purchaser is limited to the amount equal to the contract price.

13.2 Where any other provision of the contract provides for the payment by Australian Powerline Industries of liquidated damages for delay, such damages shall be the sole and exclusive remedy of the Purchaser in respect of any failure by Australian Powerline Industries to perform its obligations by the time(s) set out in the contract. In the absence of any such other provision, Australian Powerline Industries's liability to the Purchaser in respect of any failure by Australian Powerline Industries to perform its obligations by the time(s) set out in the contract shall be limited to the payment of damages not exceeding 0.25 % of the delayed equipment for each full week of delay, provided always that the liability of Australian Powerline Industries in respect of any and all delay shall not in the aggregate exceed 5% of the value of the delayed equipment.

13.3 The Trade Practices Act, 1974, implies warranties, terms and conditions in consumer contracts which cannot be excluded or modified except as permitted under that Act. In the event Australian Powerline Industries may be in breach of any such warranty, term or condition as is implied in this contract, the liability of Australian Powerline Industries shall be limited:

5
(a) in respect of goods, at Australian Powerline Industries's option, to the repair or replacement of the goods or the cost
of repairing or replacing the goods;
(b) In respect of services, at Australian Powerline Industries's option, to the reperformance of the services or the cost of
reperforming the services.
13.4 For the purpose of this clause 13, Australian Powerline Industries contracts also on behalf of and as agent for any and all
subcontractors and suppliers of Australian Powerline Industries in connection with the contract which are bodies corporate
related to Australian Powerline Industries (as defined in the Corporations Law). The cumulative liability of Australian Powerline Industries and all such
subcontractors and suppliers to the Purchaser shall not, in aggregate, exceed the liability of Australian Powerline Industries to
the Purchaser under this clause 13.
13.5 The Purchaser shall ensure that the liability of Australian Powerline Industries to the end user(s) or owner(s) or beneficiary(ies) of
the goods the subject of the contract is limited and excluded in accordance with this clause 13.
The Purchaser indemnifies Australian Powerline Industries against claims of any kind by such end user(s) or owner(s) or
beneficiary(ies) to the extent that Australian Powerline Industries would not be liable therefor to the Purchaser under the
contract if the claim had been made by the Purchaser.
14. Force Majeure
14.1 If performance by a party of any obligation under the contract (other than an obligation of the
Purchaser to make payment) is prevented, restricted or delayed by Force Majeure then that party
shall be excused from and shall not be liable for failure in performance to the extent of that
prevention, restriction or delay and the time for performance shall be extended accordingly,
subject to the terms of clause 14.2.
14.2 If performance is delayed for more than four (4) months by Force Majeure and the parties have
not agreed upon a revised basis for continuing the work at the end of the delay, then either party
may after that period and while the cause of the nonperformance still exists terminate the
contract by not less than 30 days' notice in writing to the other party.
14.3 In these Conditions “Force Majeure” means act of God, act or omission of government, war,
blockade, embargo, hostilities, fire, earthquake, flood, explosion, accident at sea, inclement
weather, except where restricted to employees of Australian Powerline Industries, industrial condition, sabotage or
commotion, or by any cause (whether similar or not to any of the above events) beyond the
reasonable control of the party whose performance is affected.
15. Default
15.1 Without limiting any other rights it may have, a party (the “notifying party”) may give a written
notice to show cause to the other party (the “defaulting party”) in the event that the defaulting
party:
(a) Abandons or repudiates the contract;
(b) commits a continuing and substantial breach of the contract;
(c) suspends performance of the contract without reasonable cause;
(d) fails to pay monies due under the contract;
(e) purports to assign the whole of the contract without the other party’s consent; or
(d) appears likely to become subject to an Insolvency Event described in clause 16,
(hereinafter a "breach").
15.2 The notice shall state (i) that it is a notice pursuant to this clause 15, (ii) the alleged breach, (iii)
that the defaulting party is required to show cause in writing within seven (7) days why the
notifying party should not exercise a right referred to in clause 15.3.
15.3 If the defaulting party fails to show reasonable cause by the stated time, the notifying party may,
by written notice, suspend the whole or any part of the performance of the contract. The
suspension shall be removed if the defaulting party remedies the breach. The notifying party may,
by written notice to the defaulting party, terminate the contract if within twenty one (21) days of
receipt by the defaulting party of the notice under clause 15.1 the defaulting party fails:
(a) To remedy the breach; or
(b) If the breach is not capable of remedy, to make other arrangements to the reasonable
satisfaction of the notifying party.
15.4 Suspension or termination of the contract pursuant to this clause 15 shall be without prejudice to
the rights of either party accruing up to the date thereof.
15.5 If the contract is terminated pursuant to this clause 15, the parties' remedies, rights and liabilities
shall be the same as they would have been under the law governing the contract had the
defaulting party repudiated the contract and the notifying party elected to treat the contract as
at an end and recover damages.

16. Insolvency

  1. If either party becomes bankrupt or insolvent or makes any agreement with its creditors compounding debts or if, being an incorporated entity, any proceedings are begun in respect of it applying for the appointment of a liquidator, administrator, receiver or similar official for it or all or any substantial part of its assets or seeking an order of relief against it as debtor or under any law relating to insolvency, readjustment of debt, reorganisation, administration or liquidation (each
    such event or process referred to in these Conditions as an “Insolvency Event”), the other party may at any time by written notice terminate the contract forthwith.
  2. Entire Contract
  1. Except as otherwise expressly provided in this contract, and subject to clause 13.3, Australian Powerline Industries excludes all statements, representations, warranties, conditions, promises, undertakings, covenants and other provisions, express or implied (and whether implied by law including Act of Parliament or otherwise) relating to Australian Powerline Industries’s tender, the goods or the services or their delivery or supply, being provisions that might otherwise form part of the contract or be collateral to or form part of any agreement that is collateral to the contract.
  2. Severance
  1. If any provision or part of any provision of these Conditions is invalid, illegal or unenforceable, such provision or part thereof shall be severed herefrom and the remainder shall continue in full force
    and effect.
  2. Waiver
  1. Any waiver by Australian Powerline Industries of strict compliance with these Conditions shall not (i) be deemed a waiver unless it is in writing and signed by an authorised officer of Australian Powerline Industries, nor (ii) be deemed a continuing waiver of compliance.
  2. Proper Law

20.1 The contract shall be governed by the law of the Australian State in which Australian Powerline Industries submitted the tender and the parties agree to submit to the jurisdiction of the courts of that State and any courts having appellate jurisdiction from them.

21 Assignment and Transfer

21.1 The Purchaser shall not assign or transfer the whole of the contract or any interest therein or in any monies payable thereunder without the written consent of Australian Powerline Industries.

  1. Nothing contained in this clause 21 shall prevent Australian Powerline Industries from subcontracting any part of the work under the contract as Australian Powerline Industries deems appropriate.
  2. Dispute Resolution

22.1 If a difference or dispute between the parties arises in connection with the subject matter or interpretation of the contract, including a Dispute concerning a claim in tort, under statute, or on any
other basis in law or equity available under the law governing the contract ("Dispute"), either party may by hand or registered post give the other party written notice of dispute identifying and providing details of
the Dispute and entitled Dispute Notice ("Dispute Notice").

22.2 Within seven (7) days of receipt of a Dispute Notice representatives of the parties having authority to bind the parties shall confer to seek to resolve the Dispute or agree on a method of doing so and whether that method shall be binding. If a resolution or method of resolution has not been agreed within twenty
one (21) days of the service of Dispute Notice, the Chief Executive Officers of the parties shall confer for the same purpose as the parties' representatives. All aspects of such conference(s) shall be privileged.

  1. Except for the enforcement of payment due under the contract or to seek injunctive or urgent declaratory relief, and subject to any agreement to the contrary, neither party may institute legal proceedings in respect of any Dispute unless a Dispute Notice in respect thereof has first been given and then only after a period of twenty eight (28) days from receipt of such Dispute Notice has elapsed.
  2. Interpretation
(a)
Clause headings shall not form part of, and shall not be used in the interpretation of, the contract.
(b)
Words in the singular include the plural and words in the plural include the singular, according to
the requirements of the context.
(c)
Words importing a gender include every gender.
(d)
Delivery acronyms such as FCA, FOB, CIF used in Australian Powerline Industries’s tender or contract shall be interpreted in accordance with INCOTERMS 2000 edition.
(e)
For the purpose of clauses 13.1(b) and 13.2:
(i)
where the total consideration payable to Australian Powerline Industries under the contract is a fixed amount set out in or calculable by reference to the contract, "the contract price" means that amount as the same may have been adjusted from time to time as provided for in the contract;
(ii)
where (i) above does not apply, "the contract price" means the amount actually paid to Australian Powerline Industries under the contract, provided that where liability arises in respect of goods supplied upon request from time to time, "the contract price" means the amount of the consideration paid to Australian Powerline Industries under the contract for the goods in respect of which such liability arises;

Where the amount of "the contract price" cannot be determined in accordance with (i) or

(ii) above for the purpose of clause 13.1(b) and 13.2, "the contract price" means one hundred thousand dollars ($100,000).