Standard Terms and Conditions of Sale

Version 1.0

Cyborg Dynamics Engineering Pty Ltd
ABN 50 621 757 248

1. Definitions

In these Terms and Conditions of Sale (“Terms”):

• Company means Cyborg Dynamics Engineering Pty. Ltd. ABN 50 621 757 248.

• Customer means the person or entity purchasing goods or services from the Company.

• Goods means any products supplied by the Company.

• Services means any engineering, consulting, design, installation, or related services provided by the Company.

• ACL means the Australian Consumer Law under the Competition and Consumer Act 2010 (Cth).

2. Application and Priority

2.1 These Terms apply to all quotations, orders, sales, and supplies of Goods and Services by the Company, unless expressly agreed otherwise in writing and signed by the Company.

2.2 Any terms or conditions proposed by the Customer (including in purchase orders or other documents) are expressly rejected and do not apply, even if referenced by the Company, unless expressly accepted in writing by the Company.

2.3 If there is any inconsistency between these Terms and any accepted written agreement, the written agreement prevails to the extent of the inconsistency.

3. Quotations and Orders

3.1 Quotations are valid for thirty (30) days unless stated otherwise.

3.2 An order is binding only once accepted by the Company in writing.

3.3 The Company may refuse or cancel any order prior to acceptance without liability.

4. Pricing and Payment

4.1 Prices are exclusive of GST unless stated otherwise.

4.2 The Company may vary prices prior to acceptance of an order.

4.3 Payment is due within thirty (30) days from the invoice date unless otherwise agreed in writing.

4.4 Interest accrues on overdue amounts at a rate equal to the Reserve Bank of Australia cash rate plus 4% per annum, calculated daily.

4.5 The Customer must pay all reasonable costs incurred by the Company in recovering overdue amounts, including legal costs on an indemnity basis.

5. Delivery, Risk, and Title

5.1 Delivery and completion dates are estimates only.

5.2 The Company is not liable for delay or failure caused by events beyond its reasonable control.

5.3 Risk in Goods passes to the Customer upon delivery.

5.4 Title to Goods remains with the Company until payment is received in full.

6. Services

6.1 Services will be performed with due care and skill in accordance with applicable Australian standards and the agreed scope of work.

6.2 The Customer warrants that all information, data, specifications, drawings, and instructions provided are accurate, complete, and suitable for the intended purpose.

6.3 The Company is entitled to rely on information supplied by the Customer or third parties without independent verification.

6.4 Variations requested by the Customer may result in additional charges and extended timeframes.

6.5 Latent site conditions, regulatory changes, or assumptions outside the agreed scope are excluded unless expressly stated otherwise.

7. Warranties and Defects

7.1 Goods

Goods will, at delivery, comply with their description and be free from material defects, subject to normal wear and proper use. Remedies for defective Goods are limited as set out in clause 8.

7.2 Services Warranty

The Company warrants that Services will be performed with due care and skill in accordance with clause 6.1.

7.3 Defects Rectification Period (Services)

If, within twelve (12) months of completion, the Customer notifies the Company in writing of a defect arising solely from a breach of clause 7.2, the Company will, within a reasonable time and at its option:

• re-perform the affected Services; or

• pay the reasonable cost of re-performance.

7.4 Exclusions

The warranties in this section do not apply to defects, issues, or losses arising from:

• inaccurate, incomplete, or misleading information, data, or instructions provided by the Customer or third parties;

• changes to scope, assumptions, site conditions, or regulatory requirements after completion of the Services;

• misuse, improper installation, modification, or maintenance of the Goods;

• use of the Goods or Services outside their intended purpose or specified parameters; or

• work performed by third parties following completion of the Services.

7.5 No Outcome or Performance Guarantee

The Company does not warrant or guarantee:

• any particular outcome, result, or performance of a project, system, or asset; or

• that the Services will be free from all errors, as engineering and technical Services inherently involve professional judgement, assumptions, and reliance on information provided by others.

7.6 Australian Consumer Law

Nothing in these Terms excludes, restricts, or modifies any guarantee, right, or remedy conferred on the Customer by the Australian Consumer Law or any other applicable legislation which cannot lawfully be excluded.

8. Limitation of Liability

8.1 Statutory Rights

Nothing in these Terms excludes, restricts, or modifies any guarantee, right, or remedy conferred on the Customer by the Australian Consumer Law or any other applicable legislation which cannot lawfully be excluded.

8.2 Exclusion of Certain Losses

To the maximum extent permitted by law, the Company will not be liable for any indirect, incidental, special, or consequential loss or damage, including (without limitation):

• loss of profit, revenue, business, or opportunity;

• loss of production or operational downtime;

• loss of data or corruption of data;

• loss arising from third-party claims; or

• any economic or financial loss,

whether arising in contract, tort (including negligence), equity, statute, or otherwise, and whether foreseeable or not.

8.3 Aggregate Liability Cap

To the maximum extent permitted by law, the Company’s total aggregate liability arising out of or in connection with the supply of the Goods or Services (including any breach of these Terms, negligence, or statutory duty) is limited to the total amount paid by the Customer to the Company for the specific Goods or Services giving rise to the claim. This limitation applies to all claims, whether arising in contract, tort (including negligence), equity, statute, indemnity, or otherwise.

8.4 Professional Judgement and Information Reliance

The Customer acknowledges that:

• engineering and technical Services may involve professional judgement, assumptions, and reliance on information provided by the Customer or third parties; and

• the Company is not responsible for loss arising from inaccurate, incomplete, or misleading information supplied to it.

8.5 Use and Application of Goods and Services

The Company is not liable for any loss arising from:

• misuse, improper installation, modification, or maintenance of Goods;

• use of Goods or Services outside their intended purpose or specified parameters; or

• failure by the Customer to follow instructions, standards, or recommendations provided by the Company.

8.6 Mitigation of Loss

The Customer must take all reasonable steps to mitigate any loss or damage suffered. The Company’s liability is reduced to the extent that any loss was caused or contributed to by the Customer’s acts or omissions.

8.7 ACL Limitation for Non-Consumer Acquisitions

Where the Goods or Services are not acquired for personal, domestic, or household use, and to the extent permitted by section 64A of the ACL, the Company’s liability is limited (at its option) to:

• the replacement or repair of the Goods, or the supply of equivalent Goods;

• the resupply of the Services; or

• the payment of the cost of replacing the Goods or resupplying the Services.

8.8 No Liability for Delays or Force Majeure

The Company is not liable for any loss resulting from delay or failure to perform due to events beyond its reasonable control, including but not limited to supply chain disruption, acts of God, labour shortages, or government actions.

9. Indemnities

9.1 The Customer indemnifies the Company against all loss arising from:

• inaccurate or incomplete information supplied by the Customer;

• IP infringement arising from Customer-supplied materials;

• site safety breaches or regulatory non-compliance under the Customer’s control;

• third-party claims resulting from Customer instructions or use of the Goods or Services.

Each indemnity in this clause is subject to the limitations of liability set out in clause 8.

9.2 The indemnity survives termination.

10. Intellectual Property

10.1 All Background IP remains the property of the originating party.

10.2 All IP created by the Company in performing the Services vests in the Company unless otherwise agreed in writing.

10.3 The Company grants the Customer a non-exclusive, non-transferable, non-sublicensable licence to use deliverables solely for their intended purpose.

11. Termination

11.1 The Company may suspend or terminate supply if the Customer:

• fails to pay amounts due; or

• breaches these Terms and fails to remedy within a reasonable time.

11.2 On termination, the Customer must pay for all Goods supplied and Services performed up to termination.

12. Assignment and Subcontracting

12.1 The Customer may not assign without the Company’s written consent.

12.2 The Company may subcontract Services.

13. Governing Law

These Terms are governed by the laws of Australia and the laws of the State or Territory in which the Company is based. The parties submit to the non-exclusive jurisdiction of the courts of that State or Territory.

14. Amendments

The Company may update these Terms from time to time by publishing revised terms on its website. The revised terms apply to all future transactions.

15. Severability and Survival

If any provision is invalid, it is severed without affecting the remainder. Clauses relating to liability, indemnity, IP, and payment survive termination.