C-COR Broadband Australia Pty Ltd ABN 22 101 599 848 Terms and Conditions of Sale (Terms and Conditions)
1. Definitions & Interpretation
“C-COR” means C-COR Broadband Australia Pty Ltd ABN 22 101 599 848 and / or its designated affiliates.
“Customer” means the person or entity however constituted to whom the Material and/or Services are provided.
“Date of Invoice” means the date of the invoice being issued upon shipment of Material to Customer subsequent to the issuance of Order Acknowledgment;
“Delivery” means the date of Customer’s receipt of Material or completion of Services at Customer’s designated location.
“Material” means the Products and/or Standard Software offered for sale or licensed to Customer at time of sale.
“Order Acknowledgment” means a document furnished by C-COR acknowledging the receipt of Customer’s Purchase Order and C-COR’s agreement to supply the Material and/or Services under these Terms and Conditions.
“Product” means any or all equipment of C-COR’s design and manufacture, or other manufacturer’s equipment offered for sale by C-COR to Customer excluding Standard Software.
“Purchase Order” means Customer’s document for the purchase of Material and/or Services, exclusive of all printed terms and conditions contained thereon.
“Quotation” means either C-COR’s offer to sell Services and/or Material or C-COR’s document that provides a summary of the Statement of Work and pricing corresponding to the Statement of Work.
“Services” means the services provided by C-COR to Customer including but not limited to items such as training, maintenance services, on-site support, applications engineering, site engineering and installation but excluding Material.
“Shipment Date” means the date on which C-COR has scheduled shipment of Material to Customer.
“Standard Software” means a set of instructions which allows hardware/ non-intelligent Products to store, manipulate and/or process information. Standard Software is licensed by C-COR separately or as part of a Product sale. Standard Software is not Product.
“Statement of Work” means C-COR’s document which describes in detail the work or Services to be performed and any Material to be supplied.
“Warranty Period” means twelve (12) months or any other period provided by C-COR in writing commencing from the Date of Invoice;
Interpretation within this document is defined as follows:
- Headings are for convenience only and do not affect interpretation;
- The singular includes the plural and conversely;
- Reference to a party means C-COR or Customer exclusively; and
- In the event of a conflict between Customer’s Purchase Order or associated documents and these Terms and Conditions herein, these Terms and Conditions herein including the Order Acknowledgment shall govern.
2. Acceptance Of Customer’s Purchase Orders
As used herein, “Acceptance of Customer’s Purchase Order” shall mean C-COR’s agreement, as evidenced by the issuance of an Order Acknowledgment, to supply the Material and/or Services identified in Customer’s Purchase Order under these Terms and Conditions. All Customer Purchase Orders are subject to written acceptance by C-COR, at its absolute discretion, even if received elsewhere by a salesperson, selling agent or representative. No Customer Purchase Order will be binding upon C-COR until C-COR issues its written Order Acknowledgment.
3. Customer’s Purchase Order Changes
Customer may not change its Purchase Order without C-COR’s written consent. Any revision in drawings, designs, specifications, Shipment Date or Purchase Order termination requested by Customer may result in additional cost to Customer. Any additional cost, charge or expense to Customer will be at C-COR’s standard rates in effect at the time of Customer’s request. C-COR’s performance of Customer’s request shall commence only upon the issuance of a new Purchase Order or written amendment to an existing Purchase Order authorizing the applicable change. Customer’s oral requests for Services shall be binding on Customer and deemed by C-COR as valid Customer Purchase Order, governed by these Terms and Conditions. The Customer further agrees, as a result of any written or oral request made hereunder to pay any and all charges, costs and expenses as determined by C-COR in relation to the Customer’s Purchase Order request.
4. Price Of Material and/or Services
The price for Material and Services is based on C-COR’s published list prices in effect at time of C-COR’s receipt of Customer’s Purchase Order unless otherwise set forth in the Order Acknowledgment, Quotation, or Statement of Work. The prices quoted are valid for a period of thirty (30) business days from date of issue, unless otherwise specified. Errors or omissions in price are subject to correction by C-COR. Prices for any imported Product are based upon rates of exchange, marine/air freight and insurance, and customs, tariffs and primage duties ruling at the date of tender or Quotation. Customer acknowledges that any increase or decrease in costs resulting from changes in these rates affecting the Product as delivered, shall be payable by Customer. Prices for Customers located within Australia are quoted in Australian dollars whilst Customers located outside of Australia will be quoted in US dollars, unless otherwise specified. Payment must be made in the currency indicated on the C-COR Order Acknowledgement or otherwise agreed upon between the parties.
5. Prices; Adjustments
(A) Unless otherwise agreed between C-COR and Customer, Customer acknowledges that the price of Materials and Services may subsequently be adjusted to reasonably reflect the adverse cost impact to C-COR of:
- Customer’s changes or delays;
- Legal or regulatory changes which occur after the issuance of the Quotation and/or Statement of Work for the Services;
- Variation in the costs of labour and transport;
- The failure of Customer to perform its obligations under Clauses 6, 7, and 8; and
- Any other increase in the cost of the provisions of the Materials and/or Services which C-COR reasonably considers to have a cost impact to C-COR.
(B) Upon determining that an adjustment in price as referred in Clause 5(A) is required, C-COR will within a reasonable period provide to Customer a written notice of the adjustment to the price. If Customer disagrees with the new adjustment to price, it must notify CCOR within (10) business days from the date of the written notice that it objects to the price adjustment and the basis for its objection. C-COR will determine, in its absolute discretion whether to continue to perform the Services specified in the Purchase Order whilst the parties determine in a commercially reasonable manner, whether the price adjustment is appropriate.
(C) In the event an adjustment to the price has not been made within the ten (10) business days, C-COR shall have the right to terminate the Purchase Order, in whole or in part and in addition to any other remedy available to C-COR. Upon termination, Customer shall immediately pay all payments due and payable by Customer to C-COR on account of all Materials delivered and / or Services rendered.
6. Schedule For Performance Of Services
C-COR will perform the Services in accordance with the schedule stated in the Quotation and/or Statement of Work. Both parties agree to adhere to the schedule, however, each party will give due consideration to any reasonable proposal by the other party regarding changes in the schedule which, if agreed upon, will be recorded in a written modification to the applicable Purchase Order. Dates for performance of Services are estimated by C-COR in good faith but not guaranteed by C-COR. Except as otherwise set forth in the Quotation and/or Statement of Work, C-COR will have unrestricted access to Customer’s site and any other locations at which Services are to be performed at all times (including overtime hours, Saturdays, Sundays and public holidays) for the purpose of performing the Services.
7. Site Preparation & Condition For Services
Customer will be responsible for preparation of the site, at which C-COR will perform the Services, to the specifications and in accordance with the time schedule stated in the Quotation and/or Statement of Work. Customer warrants to C-COR that each such site is in compliance with all applicable occupational health and safety regulations and is free from all friable asbestos and hazardous contamination or pollutant, as further provided in Clause 8 below.
8. Hazardous Materials
Prior to the date specified in the Quotation and/or Statement of Work for the performance of Services, Customer will take any and all steps needed to assure that each site is free from all friable asbestos and hazardous contamination or pollutant. If contamination is found to be present at a site, C-COR will have no further obligations under any Quotation and/or Statement of Work (other than with respect to any software licenses or confidentiality obligations), until such contamination or pollutant is removed.
9. Packaging, Shipment & Service Dates
All Products shall be suitably packed for shipment. The Customer acknowledges that C-COR may charge for packing and/or packaging to comply with Customer requirements.
Shipment Date for Material or date for performance of Service is estimated by C-COR but is not guaranteed by C-COR. Catalogue items normally in stock are sold subject to prior sale, and C-COR reserves the right to establish shipping schedules in accordance with current stock levels. C-COR will adhere as closely as possible to the Customer’s requested shipping schedule and will exercise diligence in meeting the Shipping Date. C-COR WILL NOT BE LIABLE FOR DELAYS IN SHIPMENT, FOR ANY LOSSES OR DAMAGES INCURRED BY THE CUSTOMER AS A RESULT OF SUCH DELAYS.
Shipment costs are based on INCOTERMS 2010 – Ex-Works (EXW), unless otherwise specified.
Customer, regardless of the circumstances, will not hold C-COR liable for any liabilities, penalties, or charges of any nature due to the late performance of any Service. C-COR assumes no liability for any direct or liquidated damages during shipment or delivery of Material.
Unless otherwise expressly stated, C-COR shall have the right to make delivery of Material in installments. All installments shall be separately invoiced and paid as billed without regard to subsequent deliveries. Failure to pay for any installment when due shall excuse (i) C-COR from making further deliveries and (ii) from any losses or damages incurred by the Customer as a result of the nondelivery. Delay in delivery of any installment shall not relieve Customer of its obligation to accept remaining installments. C-COR shall have the right to ship any Material to Customer in advance of the Shipping Date agreed upon by the parties, and Customer agrees to accept without recourse any such shipments shipped in advance of the agreed upon Shipping Date.
In the event of shipment delay requested by Customer or a delay caused by lack of shipping instructions, C-COR will store all Material covered thereby at Customer’s risk and expense. C-COR will invoice the Customer at the full price for the Material including an additional storage fee.
10. Title, Risk Of Loss, & Insurance
Title, risk of loss, damage, and insurance responsibilities for the Products pass from C-COR to Customer upon acceptance of Product by the shipping agent or carrier. Title to all Software shall remain with C-COR or its licensors, but risk of loss, damage and insurance responsibilities shall pass to Customer at C-COR’s shipping location.
C-COR shall retain a security interest in the Materials until payment, in full, has been made into the designated account by C-COR for such Materials delivered and Services performed. Customer shall execute any instrument reasonably required for C-COR’s protection of such security interest.
11. Acceptance Or Rejection Of Material/Services
After the Delivery of the Material, or the performance of Services, Customer will inspect the Material/Services for conformity to the Purchase Order, Statement of Work or Quotation (as the case may be) within a period of fourteen (14) business days from the date of Delivery (hereinafter “Acceptance Period”). Acceptance of Material/Services by Customer shall automatically occur upon expiry of the Acceptance Period unless C-COR is advised otherwise in writing within the Acceptance Period or upon Customer’s use of the Material/Services.
IF ANY MATERIAL OR SERVICE DOES NOT SUBSTANTIALLY CONFORM TO THE APPLICABLE PURCHASE ORDER, STATEMENT OF WORK OR QUOTATION (AS THE CASE MAY BE) CUSTOMER SHALL WITHIN THE ACCEPTANCE PERIOD, NOTIFY C-COR IN WRITING OF THE NON-CONFORMANCE, AND FOR MATERIAL, OBTAIN AN AUTHORISATION FOR RETURN AS PROVIDED IN CLAUSE 16 HEREIN, AND RETURN SUCH MATERIAL TO C-COR FOR CORRECTION OR COMPLETION AS REQUIRED.
WITH RESPECT TO SERVICES, C-COR SHALL, AT NO ADDITIONAL CHARGE (IF DETERMINED BY C-COR TO BE C-COR’s FAULT), TAKE ACTION TO CORRECT SUCH UNSATISFACTORY SERVICES.
12. Payment Terms
Customer’s payment obligations, as stated on C-COR’s invoice, is thirty (30) days, unless otherwise stated. Invoices for Services will be rendered in accordance with an established milestone schedule or upon completion of any Services. Late charges of one and one-half percent [1.5%] or the maximum permitted by law, whichever is less, per month on outstanding balances may be charged. All amounts due shall be payable either in Australian or United States dollars unless otherwise specifically agreed upon in C-COR’s Order Acknowledgement. If at anytime, C-COR is of the view that the Customer’s financial condition does not justify the continuation of the existing payment terms, C-COR may:
- Require full or partial payment of Customer’s account;
- Require payment in advance of Material shipment;
- Require payment in advance for performance of any Services;
- Change Customer’s credit terms; or
- Any combination of the above.
In addition to the Price for Material or Services paid by Customer, Customer will pay C-COR the amount of all taxes, excises, or other governmental charges that C-COR may be required to pay with respect to the production, sale, license, or transportation of any Material delivered hereunder, including the performance of any Services, except taxes on or measured by C-COR’s net income. If Customer claims exemption from any taxes, Customer will provide C-COR with documentation required by the taxing authority to support the exemption.
14. Product & Services Warranty
Except as otherwise provided in this clause, to the maximum extent permitted by law, all conditions, warranties, representations, liabilities and obligations, whether implied or imposed by statute or otherwise, in respect of the supply of Product, including any conditions or warranties as to merchantability, fitness for purpose or correspondence with description, are excluded and all liability for loss or damage, whether consequential or otherwise.
C-COR warrants from the Date of Invoice to Customer that Product bearing the C-COR name will substantially conform to C-COR specification in effect as of the Date of Invoice and will be free from substantial defects in material and workmanship under normal use (within published specifications), given proper installation and maintenance, for the specified Warranty Period for the Product. C-COR further warrants to Customer that all Services performed by C-COR for Customer will be provided in a workmanlike manner. Warranty of C-COR Standard Software is set forth in the software license.
Customer must promptly notify C-COR of any claimed defect in the Product and/or Services. C-COR or its authorised agent may inspect the Product or workmanship on Customer’s premises. Product returned to C-COR under Warranty Period must be shipped pre-paid by Customer.
C-COR shall, at its expense, correct any defect in material and workmanship in Products manufactured by C-COR which may appear within the Warranty Period. C-COR MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY OTHER KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, WHETHER AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER MATTER.
The C-COR warranty shall not cover components subject to normal wear and tear, such as fuses, batteries, and lamps.
15. Product & Services Warranty Limitations
C-COR’s entire liability and Customer’s exclusive remedy whether in contract, tort or otherwise, for any claim related to or arising out of breach of the warranty covering Product or Services shall be correction of defects by repair, replacement, re-performance of service or credit, at C-COR’s discretion. Refurbished Product may be used to repair or replace the Product. Customer shall have no claim to Product which was replaced or the components therein which were replaced. Third party equipment (non C-COR products) will only be warranted under the conditions of the supplier and the warranty shall not exceed 12 months from the Date of Invoice. C-COR does not warrant that the operation of the Product will be uninterrupted or error-free. Similarly, C-COR does not warrant that the functions of the Product will meet Customer’s requirements or that the Product will operate in combination with other products selected by Customer for its use.
C-COR assumes no liability with respect to (a) defects caused by modification, repair, installation, operation or maintenance except as described in C-COR’s documentation; or, (b) negligent or other improper use of the Product.
C-COR assumes no liability for Product or Services furnished by Customer nor does this warranty cover any copy of or update to any user manual for the Product.
No agent, distributor, or representative is authorised to make any warranties on behalf of C-COR or to assume for C-COR any other liability in connection with any Product or Services.
Material may not be returned to C-COR without prior written authorization. Customer must contact C-COR to obtain an authorisation number and return the Material to the location designated by C-COR with all transportation charges including all other related charges and costs paid by Customer. Any Material returned to C-COR without proper authorisation will be returned to Customer at Customer expense.
17. Disclaimer Of Liability
C-COR WILL NOT BE LIABLE FOR INJURIES OR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM ANY CAUSE WHATSOEVER. THIS LIMITATION APPLIES TO ALL MATERIAL AND SERVICES PERFORMED DURING AND AFTER THE WARRANTY PERIOD.
IN NO EVENT SHALL C-COR BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, LOSS OF USE OR LOSS OF REVENUE OR PROFIT AND C-COR FURTHER DISCLAIMS ANY AND ALL LIABILITY FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES.
IF ANY REMEDY HEREUNDER FAILS OF ITS ESSENTIAL PURPOSE, OR IN ANY OTHER EVENT, C-COR’s AGGREGATE LIABILITY HEREUNDER SHALL NOT EXCEED THE DEPRECIATED VALUE OF THE AFFECTED MATERIAL OR THE ACTUAL AMOUNT PAID TO C-COR FOR SERVICES.
18. Compliance With Applicable Laws
The Customer will comply with all applicable laws affecting the purchase and use of Material. Customer agrees to maintain all registrations with governmental agencies, commercial registries, chambers of commerce, or other offices which may be required under law in order to properly conduct commercial business.
Prior to the date specified in the Quotation and/or Statement of Work for the performance of Service, Customer will (a) obtain and pay for all governmental or third party consents, permits, approvals, licences and public and private easements necessary for C-COR’s unrestricted access to any site or location needed for performance of the Services and delivery of the Material, and (b) will notify C-COR in advance of any requirements including all local laws, regulations, ordinances and the like to which C-COR is or will be required to comply in the rendering of Services and in the supplying of Materials hereunder.
When required, Customer will comply with laws in the United States of America applicable to the use, sale or license of Material, including but not limited to the Foreign Corrupt Practices Act and the Export Administration Act.
19. Confidential Information
Customer will not disclose to any person or entity any information or data fixed in a tangible medium and marked as confidential or proprietary information (hereinafter referred to as “Confidential Information”) of C-COR, or if provided orally, confirmed in writing to be confidential or proprietary within twenty (20) days after its disclosure.
Notwithstanding the provisions herein, if Customer receives Confidential Information it shall treat such Confidential Information as confidential, prohibit re-copying and use such Confidential Information only in connection with fulfilling its obligations under Customer’s Purchase Order. Customer will return all Confidential Information to C-COR upon completion of such obligations for its use, or upon the request of C-COR.
Customer recognises and agrees that the unauthorized use or disclosure of the Confidential Information would cause irreparable injury to C-COR for which it would have no adequate remedy at law, and that any actual or contemplated breach of this clause will entitle C-COR to obtain immediate injunctive relief prohibiting such breach, in addition to any other rights and remedies available to it. The obligations herein contained will expressly survive the final payment of any / or all Customer Purchase Orders.
20. Intellectual Property Rights
All drawings, data, designs, tooling, equipment, procedures, engineering changes, inventions, trade secrets, copyrights, mask works, source code, object code, patents, patent applications, know-how, computer and / or Product software and all parts thereof, trademarks and all other information, technical or otherwise which was developed, made or supplied by or for C-COR in the production of any Material or the performance of any Service sold, rendered or licensed hereunder will be and remain the sole property of C-COR (or its licensors, if any). Customer agrees not to reverse engineer any Materials purchased hereunder.
21. Proprietary Rights Indemnification
If any Product bearing the C-COR name, in C-COR’s opinion, is likely to or becomes the subject of a claim of infringement of any valid United States and Australia copyright or patent, C-COR shall, at its option and expense, either:
- Modify it to make it non-infringing;
- Settle such claim by procuring for Customer the right to continue using the Product; or
- Defend Customer against such claim.
If C-COR elects to defend Customer against such claim, C-COR will pay Customer for any damages actually incurred which are awarded by a court of final jurisdiction, provided Customer gives C-COR prompt written notice of all facts and circumstances necessary or desirable for a proper defense of same, and Customer co-operates fully with C-COR in the defense of such claim. C-COR shall not be responsible for any settlement made without C-COR’s written consent.
If, in C-COR’s opinion, none of the foregoing alternatives are reasonably available to C-COR, then C-COR may discontinue the sale of the Product. If C-COR elects to discontinue the sale of the Product, Customer may
- Continue using the same at its sole risk until an injunction or other court order terminating the continued use thereof has been issued; it being understood that C-COR may participate at its expense in the defense of any such action if such claim names C-COR as a defendant; or
- Return the Product to C-COR, including any associated media, any printed material, and any “online” or electronic documentation to C-COR and receive a prorated refund of the Product purchase cost based on an established prorated period of five (5) years from date of original Product shipment by C-COR.
C-COR shall have no liability for any claim of patent or copyright infringement based upon:
- Use of the Product in a manner other than for which it was intended;
- Any infringement, or alleged infringement, of any patent or copyright issued by any country other than the United States or any other country where C-COR has obtained patent or copyright protection;
- Modifications or changes made to the Product which are not authorised by C-COR;
- Operation of the Product in combination with other products selected by Customer for its use; or
- C-COR’s compliance with Customer’s designated designs, material usage or specification furnished by Customer, in which case Customer shall defend, indemnify and hold C-COR harmless against any claim of infringement of any copyright or patent.
The foregoing states the full liability of C-COR arising out of infringement.
Except for Customer’s internal use of C-COR’s trademarks, Customer will not use any C-COR trademark or trade name for any other purpose whatsoever without the express written consent of C-COR.
23. Software License
C-COR licenses to Customer, Standard Software, when included with a Product sale or when purchased separately, in accordance with the terms of C-COR’s Software license.
C-COR may assign its rights and obligations by giving Customer written notice thereof but without being obligated to obtain Customer’s prior consent. In the event of an assignment, C-COR shall be discharged of any liability pursuant to those Purchase Orders which have been assigned or delegated.
Customer may not assign its rights nor delegate its obligations under any or all of its Purchase Orders without C-COR’s prior written consent and any such assignment or delegation without such consent shall be void.
25. Resolution Of Disputes
(A) All disputes or differences arising out of or in connection with these Terms and Conditions that cannot be resolved by negotiation between parties shall be determined by arbitration before a single arbitrator in accordance with and subject to the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitrations.
(B) Each party must bear equally the costs of the arbitration process.
(C) Any information or documents disclosed by the parties under this clause must be kept confidential and may not be used except to attempt to resolve the dispute.
Cancellation of any Purchase Order or portion of any Purchase Order by the Customer shall be deemed to be wrongful, and C-COR retains all remedies provided by law for any such cancellation. Customer shall give written notice to C-COR of any claim or breach or default under these Terms and Conditions, and the said notice shall specify the grounds for such claim. C-COR shall have the right to cure or correct any such breach or default within a reasonable time. C-COR may, upon written notice to Customer, cancel any and/or all Customer Purchase Orders effective immediately if:
- Customer makes an assignment for the benefit of creditors, is unable to pay its debts as they become due; files a voluntary petition in bankruptcy; is adjudicated to be a bankrupt or an insolvent debtor; files a petition seeking for itself any re-organisation; or consents to or acquiesces in the appointment of a trustee, receiver or liquidator;
- Any proceeding seeking involuntary re-organisation, or similar relief is filed against Customer which is not dismissed within one (1) month after filing, or if any trustee, receiver or liquidator of Customer or any substantial part of its business assets, or properties is appointed without C-COR’s consent or acquiescence and such appointment is not vacated within one (1) month after such appointment;
- Customer ceases doing business as a going concern or it or its shareholders take any action looking to its dissolution or liquidation; or
- Fails to perform any material obligations and such failure is not remedied within fifteen (15) days after notice has been given to Customer.
- Customer fails to pay for any Purchase Order in accordance with the payment terms;
- Any change occurs in the direct or indirect ownership of Customer if, in C-COR’s opinion, such change may be detrimental to C-COR’s interest hereunder; or
- Any cancellation pursuant to this clause will be in addition to and will not be exclusive of or prejudicial to any other rights or remedies at law or in equity available to C-COR.
Please refer to the Return and Cancellation Policy from https://www.c-cor.com.au/return-cancellation-policy/
27. Material Furnished By Customer
If Customer is to furnish any material or equipment to C-COR for the purpose of performance and completion under these Terms and Conditions, Customer shall be liable to C-COR, without any restrictions on Customer’s liability, for any loss, damage, or expense resulting directly or indirectly from any delay in delivery of such material or equipment or any defects therein.
Unless otherwise agreed upon, all tools required for production, or engineering advances developed by C-COR as a result of producing items in the Purchase Order, are to remain the property of C-COR, to be used or sold to any person by C-COR in its absolute discretion and without restriction.
29. Manufacture Of Specialty Items
On Products classified as specially manufactured, that is, Products fabricated to individual Customer’s requirements, drawings, specifications, and/or Customer design, as contrasted to standard items offered by C-COR for general sale, C-COR shall have the right to manufacture or fabricate the entire quantity ordered in one production run, although shipments will be made in accordance with Customer’s requested schedule. Customer acknowledges and agrees that the value of any components, sub-assemblies, and/or finished assemblies for specially manufactured Products shall be considered as a part of damages payable by Customer in the event of a wrongful cancellation.
30. Inspections & Certificates Of Conformance
Inspections required by the Customer at the time of manufacture of Products shall be limited to the electrical tests only and the Customer shall pay C-COR a service charge for such inspection. Certificates of conformance relating to materials used in manufacture must be requested prior to shipment of the goods.
31. Data And Information On Finished Products
The amount and type of data and information furnished to Customer concerning Material purchased hereunder shall be determined by C-COR.
If any provision of these Terms and Conditions is held by a court, government agency or other legal authority of competent jurisdiction to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not invalidate, void or render unenforceable any other portion of these Terms and Conditions but rather these Terms and Conditions shall be construed as if it did not contain the particular invalid, illegal or unenforceable provision or provisions, and the rights and obligations of the parties shall be construed and enforced accordingly.
33. Force Majeure
C-COR is not liable for failure or delay in fulfilling its obligations due to any causes beyond its control. In the event of any such delay, the Shipment Date or performance of Services will be extended correspondingly. C-COR retains the right to determine the allocation of its inventory of Material among itself, its present and future customers and Customer. In the event C-COR partially fills Customer’s Purchase Order, Customer shall, nonetheless, continue to make payments on C-COR’s invoice during the period in which the delay is in effect for those Materials and/or Services delivered. The Customer acknowledges that if an event of force majeure prevents or delays C-COR’s performance for more than six (6) months, C-COR shall have the right to terminate the applicable Purchase Order, with immediate effect.
34. Governing Language
The parties hereby confirm that they have agreed that all written documents between them be prepared in the English language only and such language shall be the governing language.
35. Governing Law/Venue
These terms and conditions shall be governed and interpreted in accordance with the laws of the State of Victoria, Australia, and the courts of that State shall have jurisdiction in any matter arising.
The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to the sale of Materials hereunder.
Customer hereby irrevocably consents to the exclusive personal jurisdiction of any state court of general jurisdiction of the jurisdiction in which is located the main office of the C-COR affiliate which is authorised to issue the Order Acknowledgment. If Customer institutes any legal proceeding in any other court, it shall assume all of C-COR’s costs in connection therewith, including reasonable attorney’s fees. Registered or certified mail of any legal process shall constitute lawful and valid service of process in any such proceeding, suit or controversy.
36. Survival Of Terms
The termination or cancellation of any Customer Purchase Order or any relationship created hereunder between the parties or the delivery of Material or performance of Services under Customer’s Purchase Order shall not affect each party’s obligations and rights under these Terms and Conditions, which by their nature, survive, notwithstanding such termination, cancellation, delivery or performance.
No waiver will be valid unless in writing, signed by an authorised representative of C-COR and no waiver granted will release Customer from subsequent strict compliance herewith.