1. Definitions and Interpretation

 

1.1 In these Terms and any related Contract, unless the contrary intention appears:

 

Affiliate means an entity or company which directly or indirectly, through one or more intermediaries, controls is controlled by or is under common control with a party.

 

Body Bike Australia means Body Bike Australia Pty Ltd (ABN 21 629 271 067).

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Business Day means a day that is not a Saturday, Sunday or public holiday in New South Wales or, for deliveries of Products, at the place of delivery.

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Contract means a contract for sale as referred to in clause 2.5.

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The Customer means the person who orders Products from Body Bike Australia, whether by telephone, email, in person or otherwise and whether through an agent or otherwise.

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Force Majeure means any circumstance beyond the reasonable control of a party which results in a party being unable to observe or perform on time an obligation under these Terms.

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GST has the same meaning as in the A New Tax System (Goods & Services Tax) Act 1999 (Cth) (as amended).

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Insolvency Event means circumstances in which The Customer is unable to pay its debts as they fall due or otherwise takes any corporate action or any steps are taken or legal proceedings are started for: (a) its winding-up, dissolution, liquidation, or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by Body Bike Australia; (b) the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it or of any of its revenues and assets; or (c) seeks protection or is granted protection from its creditors, under any applicable legislation.

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Intellectual Property means the intellectual property of Body Bike Australia including the registered trademarks which are set out in clause 16.1 of these Terms.

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Order means a purchase order for Products which has been accepted by Body Bike Australia  but excluding any terms or conditions printed on or referred to in The Customer’s purchase orders or other documentation unless expressly agreed to in writing by Body Bike Australia.

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Personal Information means the Customer’s personal information as that term is defined in the Privacy Act 1988 (Cth).

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PPSA means the Personal Properties Securities Act 2009 (Cth) (as amended from time to time).

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Products mean the goods purchased or to be purchased by The Customer from Body Bike Australia which are the subject of a Contract.

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Terms means these terms and conditions of sale.

 

2. Orders

 

2.1 All orders for Products must be placed in the manner and form required by Body Bike Australia from time to time.

 

2.2 Body Bike Australia may in its absolute discretion determine from time to time a “Specified Order Quantity”, being the minimum order value or quantity for each order of Products to be supplied to the Customer.

 

2.3 All orders will be subject to acceptance by Body Bike Australia, which may decline an order or accept an order in whole or part in its absolute discretion. The Customer acknowledges that acceptance of an order by Body Bike Australia will not imply that Body Bike Australia will accept any future order(s) placed by the Customer.

 

2.4 Once accepted by Body Bike Australia, an Order may not be cancelled by the Customer except with the express consent of Body Bike Australia.

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2.5 Upon the acceptance of each Order by Body Bike Australia, a separate contract of sale will arise. Each Contract will comprise the accepted Order and

these Terms. If there is any inconsistency between these Terms and another provision in a Contract then the provision in the Contract will prevail only to the

extent of the inconsistency.

 

2.6 For the avoidance of doubt no terms or conditions of the Customer, including any terms or conditions printed on or referred to in the Customer’s offer to purchase or order will be binding on Body Bike Australia or have any legal effect unless expressly agreed to in writing by Body Bike Australia.

 

3. Price and Payment

 

3.1 The price for the Products is specified in the Contract. Unless the Contract states otherwise, Body Bike Australia may alter the price at any time prior to acceptance of an order without prior notice.

 

3.2 The Customer must pay GST or any other tax duty, levy, tariff or charge applicable to the supply of the Products in addition to, and at the same time as, payment of the price. Body Bike Australia will provide The Customer with a tax invoice as required by law.

 

3.3 Unless the Contract states otherwise, The Customer must pay the price for Products supplied to it within 7 days of the date of the invoice for such Products.

 

3.4 The Customer must not withhold payment or make any deduction or set off from the invoiced price or any other amount owing to Body Bike Australia without Body Bike Australia’s prior written consent.

 

3.5 Receipt of any amount will not constitute payment until such time as the amount is paid or honoured in full.

 

3.6 Body Bike Australia may in its discretion allocate a payment that does not specifically identify the invoice for which such payment is made in satisfaction for monies owing under any outstanding invoices without regard to the date of those invoices.

 

3.7 Body Bike Australia may charge interest on any overdue monies at the rate which is 2% per month, calculated from the due date for payment of the outstanding amount until the date of payment by the Customer. Any payment made by the Customer will be credited first against any interest that has accrued.

 

4. Delivery Terms

 

4.1 Any timeframes quoted by Body Bike Australia for delivery of the Products are estimates only. Body Bike Australia will use its reasonable endeavours to supply the Products in the quantities specified in the relevant Contract.

 

4.2 Body Bike Australia will not be liable for any loss suffered by the Customer arising out of any delay in delivery of the Products (or any part of them) or failure to deliver in the requested quantities.

 

4.3 Body Bike Australia is entitled to refuse to deliver the Products to the Customer if there are any outstanding monies owing to Body Bike Australia.

 

4.4 Delivery of the Products will be made in the manner and at the place specified in the relevant Contract or if not specified, delivery will be made as determined by Body Bike Australia.

 

4.5 The Customer agrees to accept delivery of the Products at any time on a Business Day.

 

4.6 If Body Bike Australia fails to deliver some or all of the Products pursuant to a Contract, the Customer will not be entitled to cancel that Contract or any other order, Contract or delivery. Body Bike Australia will not be obliged to accept any claims for shortages of deliveries or non-conforming Products unless written notice of the claim is given to Body Bike Australia within 5 Business Days after receipt by the Customer of the Products at the delivery destination.

 

4.7 If Body Bike Australia supplies the Products pre-packed and labelled, the Customer must not sell, supply or otherwise deal with the Products unless the packaging and labelling remains intact, and the Customer must not alter, remove, conceal or tamper with any batch numbers or other means of identification used in relation to the Products.

 

4.8 If the Customer does not, or indicates to Body Bike Australia that it will not, take or accept delivery, then the Products will be deemed to have been delivered when Body Bike Australia was willing to deliver them.

 

4.9 Body Bike Australia reserves the right to deliver the Products by instalments. Each instalment may be invoiced separately and will be deemed to be a separate Contract under the same provisions as the main Contract.

 

4.10 Body Bike Australia may suspend or cancel delivery of the Products if Body Bike Australia reasonably believes that the Products may cause injury or damage (including for technical, scientific, medical or efficacy reasons) or may infringe the intellectual property rights of any person including Body Bike Australia, or if payments owing from the Customer to Body Bike Australia remain outstanding. No such suspension or cancellation will in any way constitute admission of liability or fault on Body Bike Australia’s part.

 

5. Containers and Pallets

 

5.1 Any pallets or containers used for the delivery, storage or display of the Products are not included in the price unless otherwise specified and will remain the property of their owner.

 

5.2 Body Bike Australia does not accept the return of pallets and containers which shall be removed and disposed of the installer of the Product or the Customer.

 

6. Risk and Title

 

6.1 Legal and beneficial ownership in the Products will not pass to The Customer until The Customer has paid in full the price for those Products.

 

6.2 Risk of loss of or damage to the Products will remain with Body Bike Australia only until delivery of the Products by Body Bike Australia to the Customer in accordance with clause 4 unless the Customer arranges freight and delivery in which event risk of loss of or damage to the Products will pass upon collection of Products from Body Bike Australia. Thereafter risk of damage to, or loss or deterioration of, the Products from any cause whatsoever passes to the Customer.

 

6.3 Until all outstanding monies have been paid to Body Bike Australia for Products delivered to the Customer:

 

(a) The Customer must separately store those Products in such a way that makes it clear that they are the property of Body Bike Australia;

 

(b) in the event of a default (specified in clause 12), Body Bike Australia or its representative will be entitled, without the necessity of giving any notice, to enter premises occupied by the Customer to search for and remove any of those Products without in any way being liable to the Customer, and may dispose of or retain such Products as Body Bike Australia sees fit without being required to give notice or account to the Customer. If the Products or any of them are wholly or partially attached to or incorporated in any other product, Body Bike Australia may (when practical) disconnect them in any way necessary to remove the Products; and

 

(c) all costs and expenses incurred by Body Bike Australia as a result of taking action in accordance with clause 6.3(b), together with transportation and storage charges, must be paid by the Customer to Body Bike Australia on demand.

 

6.4 Until title to the Products passes to the Customer, the Customer acknowledges and agrees:

 

(a) that the Products supplied and not resold are held by it as a bailee for Body Bike Australia;

 

(b) The Customer may not resell the Products without the prior written approval in writing from Body Bike Australia ;

 

(c) any resale of the Products must only be made on the condition the purchaser is expressly made aware of the existence of Body Bike Australia’s rights under this clause 6;

 

(d) if the Products have been resold by the Customer, the Customer will hold so much of the proceeds of sale as does not exceed the outstanding monies on trust for Body Bike Australia immediately when they are receivable or received;

 

(e) when the proceeds held in trust for Body Bike Australia under clause 6.4(d) are received they must either be paid immediately to Body Bike Australia or held in a separate bank account as trustee for Body Bike Australia and they must not be used by the Customer in any other way whatsoever; and

 

(f) the authority conferred on the Customer by clause 6.4(b) may be revoked by written notice from Body Bike Australia at any time if Body Bike Australia deems the credit of the Customer to be unsatisfactory or if the Customer is in default in the performance of its obligations under any Contract, these Terms or any other agreement between Body Bike Australia and the Customer.

 

6.5 This clause 6 creates a purchase money security interest in the Products, any goods in which the Products are used as a component, and all proceeds from their respective resale by the Customer. The security interest is granted to secure the Customer’s proper performance of the Agreement, and comes into effect when the Customer takes possession of the Products.

For the avoidance of doubt the Customer acknowledges and agrees that it grants to Body Bike Australia a security interest in all goods supplied by Body Bike Australia to the Customer whether now or in the future and in any proceeds from the sale of those goods.

 

6.6 The parties agree that pursuant to sections 115(1) and 115(7) of the PPSA the following sections of the PPSA will not apply to these Terms and any related Contract (to the extent permitted by law): Sections 95, 96, 117, 118, 121(4) 125, 127 129, 130, 132, 134(2) 135, 136(3), 136(4), 136(5), 137, 142 and 143.

 

6.7 For the purposes of section 14(6) of the PPSA the parties agree that any payments received by Body Bike Australia from the Customer pursuant to or in any way connected with this Agreement will be applied in such order as Body Bike Australia deems fit in its absolute discretion.

 

6.8 The Customer consents and agrees that:

 

(a) It must sign all documents and take all steps as Body Bike Australia may reasonably require in connection with the registration, perfection and enforcement of this purchase money security interest; and

 

(b) The security interest created by this agreement or any other document relating to the subject of this agreement may be registered with the relevant authority or public register; and

 

(c) Body Bike Australia is not obliged to give any notice or documents under the PPSA unless the relevant obligation cannot be excluded. The Customer waives its right to be provided with verification statements pursuant to section 157 of the PPSA.

 

7. Warranties

 

7.1 Body Bike Australia warrants that all Products manufactured by Body Bike Australia or a Body Bike Australia Affiliate and supplied to the Customer will, subject to this clause 7, comply with Body Bike Australia’s specifications for those Products (or if no such specifications exist, will be free of defects in materials and manufacture) in accordance with Body Bike Australia’s standard warranty. For more details regarding Body Bike Australia’s warranty and the period over which such warranty applies go to https://www.body-bike.com.au/warranty.

 

7.2 Body Bike Australia’s warranty covers failures as a result of a manufacturing fault and occurred during normal use. It does not extend to faults resulting from misuse, abuse, damage incurred during loading, transportation or improper storage, or where the Product has been used other than as recommended by the manufacturer or modified without Body Bike Australia’s consent.

 

7.3 If a Product does not comply with the warranty set out in clause 7.1 and the Customer notifies Body Bike Australia in writing of the defect during the applicable warranty period within 5 Business Days of the defect coming to its notice, Body Bike Australia will, at its option, either exchange the Product for a new Product, or refund the Price paid for the Product.

 

7.4 When a refund is given pursuant to clause 7.3, the Product for which the refund is provided must, at Body Bike Australia’s option, be returned to Body Bike Australia by the Customer, at Body Bike Australia’s expense, and upon receiving a refund the Customer acknowledges that Product becomes the property of Body Bike Australia.

 

7.5 The warranty in clause 7.1 does not apply:

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(a) as a result of any acts or omissions by any person other than Body Bike Australia or any external cause;

 

(b) if the defect is due to the Product being used for purposes other than for purposes for which it was intended or which do not fall within the scope of any regulatory approval;

 

(c) to a Product that has been modified without the written permission of Body Bike Australia; or

 

(d) if the Product has not been stored or transported in accordance with Body Bike Australia’s recommendations.

 

7.6 The benefit of the warranty in clause 7.1 is personal to the Customer and is not assignable without the prior written consent of Body Bike Australia.

 

7.7 Except as expressly set out in these Terms, and subject to any terms, warranties or conditions that by law may not be excluded (including those under sections 51, 52 and 53 of the Australian Consumer Law), all conditions, warranties, terms, and obligations expressed or implied by law or otherwise relating to the performance of Body Bike Australia’s obligations under these Terms, or any goods or services supplied, or to be supplied, by Body Bike Australia under these Terms, are excluded and the rights set out in this clause 7 are the sole and exclusive remedies of The Customer with respect to defective Products.

 

7.8 The Customer acknowledges having received the manufacturer’s instruction manual with Product and warrants that they will assemble and use Product strictly in accordance with the manufacturer’s instruction manual and recommendations. Any assembly or use of Products contrary to the manufacturer’s instruction manual or for the purpose for which Products are commonly used may void any warranty.

 

8. Returns and Credits

 

8.1 If the Customer claims any defect with Products delivered by Body Bike Australia the Customer must notify Body Bike Australia within 5 business days of the defect coming to its notice. Body Bike Australia will not be obliged to accept any claim for defects or non-conforming Products unless written notice of the claim is given to Body Bike Australia within 5 Business Days after receipt by the Customer of the Products at the delivery destination.

 

8.2 Credits sought for returned Products which are not defective are at Body Bike Australia’s discretion. Where accepted, Body Bike Australia may charge a reasonable administration fee in respect of all returned Products.

 

8.3 Products, in respect of which a credit is sought and approved by Body Bike Australia, must be returned to Body Bike Australia’s premises freight free in good and saleable condition in the original containers and packaging in which they were supplied, and accompanied by the number and date of Body Bike Australia’s supplying invoice failing which Body Bike Australia may refuse to grant any credit to the Customer at its discretion.

 

9. Assistance and Materials Supplied by Body Bike Australia

 

9.1 Subject to obligations imposed on Body Bike Australia by the law which cannot be excluded or modified by these Terms, and subject to any contrary provisions in a Contract, any advice, recommendation, information, assistance or service provided by Body Bike Australia in relation to Products and their use or application is given in good faith but is provided without liability or responsibility on the part of Body Bike Australia and without intention that the Customer should rely thereon.

 

9.2 Any material supplied by Body Bike Australia for advertising and display is issued to the Customer for use in its own business and is not intended for circulation or distribution to the public. Such material will remain the property of Body Bike Australia, must be returned by the Customer to Body Bike Australia upon request and must not be modified without Body Bike Australia’s prior consent.

 

10. Limitation of Liability

 

10.1 Any provision of these Terms that excludes any terms, conditions or warranties, or limits the liability of a party will apply only to the extent permitted by law and these Terms will be construed subject to such terms, conditions, warranties and limitations.

 

10.2 Subject to clause 10.1, where any terms, conditions or warranties are implied by law into these Terms which the law expressly provides may not be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent, the liability of Body Bike Australia to the Customer under such implied terms, conditions or warranties is limited, at the option of Body Bike Australia, to the repair or replacement of goods, or payment of the cost of repairing or replacing the goods.

 

10.3 Except as expressly provided in these Terms, to the extent permitted by law, Body Bike Australia will have no liability to the Customer, however arising and under any cause of action or theory of liability, in respect of special, indirect or consequential damages, loss of profit (whether direct or indirect) or loss of business opportunity.

 

11. Indemnities

 

11.1 If the Customer gives instructions to Body Bike Australia with respect to the manufacture, packaging, sale or supply of the Products, The Customer warrants to Body Bike Australia that adherence by Body Bike Australia to any such instructions will not infringe the intellectual property rights of any other person.

 

11.2 The Customer releases and indemnifies Body Bike Australia, its related bodies corporate, and their respective officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with those indemnified, and whether at common law, in equity or pursuant to statute or otherwise, in respect of any loss, death, injury, illness or damage (whether personal or property, and whether direct or consequential, including consequential financial loss) arising out of a breach of the Customer’s warranties or obligations contained in these Terms, and from and against all damages, reasonable costs and expenses incurred in satisfying, defending or settling any such claim, proceeding or demand.

 

12. Default

 

12.1 If an Insolvency Event occurs in relation to the Customer or any other event occurs which gives Body Bike Australia reasonable grounds for doubting the credit of the Customer, Body Bike Australia may by notice to the Customer, at its option and without prejudice to any other right it may have, suspend or terminate a Contract or require payment before or on delivery of the Products (notwithstanding the terms of payment applicable to the Products), or cancel any undelivered or uncompleted Products under a Contract, and may retain any monies paid by the Customer in relation to the Contract and apply such monies against any loss or damage incurred by it in relation to the default by the Customer.

 

12.2 Failure to pay the price for any Products sold and delivered to the Customer or any breach by the Customer of any warranty or these terms is an event of default which shall entitle Body Bike Australia at its option and without prejudice to any other right it may have, to suspend or terminate a Contract or require payment before or on delivery of the Products (notwithstanding the terms of payment applicable to the Products), or cancel any undelivered or uncompleted Products under a Contract, and may retain any monies paid by the Customer in relation to the Contract and apply such monies against any loss or damage incurred by it in relation to the default by the Customer.

 

12.3 Body Bike Australia will be entitled to recover from the Customer all legal and other costs incurred by Body Bike Australia arising from the Customer’s default under this clause including non-payment and the collection of any overdue monies on an indemnity basis.

 

13. Force Majeure

 

13.1 Neither party will be liable for any delay or failure to perform its obligations under these Terms (other than payment obligations) if such delay is due to Force Majeure.

 

13.2 If a delay of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended.

 

14. Confidentiality

 

14.1 These Terms and the provisions of all Contracts are confidential and must not be disclosed by the Customer to any third party without Body Bike Australia’s prior written consent unless such disclosure is required by law (other than section 275(1) of the PPSA).

 

14.2 The parties agree that the provisions of this clause 14 amount to a “confidentiality agreement” referred to in section 275 (6) of the PPSA.

 

14.3 The restrictions contained within this clause 14 do not apply to any of these Terms or provisions of Contracts that Body Bike Australia has itself placed in the public domain.

 

15. Privacy

 

15.1 Body Bike Australia has a published Privacy Policy which is incorporated into these Terms by reference and can be viewed at www.body-bike.com.au.

 

15.2 Body Bike Australia’s collection and use of your Personal Information may for purposes including:

 

(a) to process and administer your dealings as customer of Body Bike Australia, including assessing your credit worthiness;

 

(b) to provide you with the Products and services you have requested and assisting you with further relevant information including Product related information; and

 

(c) to administer the transactions contemplated by the Terms.

 

15.3 Body Bike Australia will generally:

 

(a) use Personal Information provided to it for the purposes relating to the terms of this agreement;

 

(b) use personal information collected by it in accordance with its Privacy Policy and the Privacy Act 1988 (Cth) (the “Privacy Act”); and

 

(c) not sell, trade, give or pass on to any third party any personal information unless such a disclosure is contemplated by and directly related to the purpose outlined by the terms of this Agreement, or the Customer consents to such a disclosure or such disclosure is required to do so by law.

 

15.4 The Customer therefore authorises Body Bike Australia to disclose the Customer’s Personal information to third party contractors and service providers that assist Body Bike Australia operate its business and assist Body Bike Australia fulfil the terms of this agreement such as contractors and service providers involved in services including but not limited to the processing of orders, order fulfilment and the collection of outstanding debts.

 

15.5 By entering into this agreement the Customer:

 

(a) acknowledges that it has read Body Bike Australia’s Privacy Policy and consents to the terms thereof;

 

(b) acknowledges that Body Bike Australia is a global organisation and some of the activities necessary to fulfil the terms of this agreement may be conducted by Body Bike Australia entities located outside of Australia and as such the Customer consents to the overseas transfer of its Personal Information, its employees, consultants and agents provided by the Customer to Body Bike Australia.

 

15.6 The Customer warrants that it shall comply with the provisions of the Privacy Act and shall not (as far as practicable) knowingly do anything or permit anything to be done which might lead to a breach of any such legislation.

 

16.  Intellectual Property

 

16.1 The Customer acknowledges that Body Bike Australia has Intellectual Property in the Product and its brand including registered trademarks which appear below:

 

 

BODY-BIKE

 

 

 

16.2 The Customer may use the Intellectual Property for the purposes of promoting Body Bike Australia in its business but shall not use or copy any registered trademark without the prior written approval of Body Bike Australia.

 

 

17.    General

 

17.1 The Customer must comply with all applicable laws, regulations, industry standards and codes of conduct in Australia and any other relevant jurisdiction in relation to all matters contemplated (whether expressly or implicitly) by these Terms.

 

17.2 In these Terms and any Contract, unless the contrary intention appears:

 

(a) a person includes a corporation, unincorporated association, partnership, joint venture or public, statutory or governmental association or agency;

 

(b) a statute or regulation includes an amendment, replacement or re-enactment of that statute or regulation;

 

(c) a reference to dollars is to Australian Dollars;

 

(d) the word “including” and similar expressions are not words of limitation;

 

(e) a reference to conduct includes any omission and any statement or undertaking, whether or not in writing; and

 

(f) where an act is to be performed on a day that is not a Business Day, the act will be required to be performed on the following Business Day.

 

17.3 Any notice in connection with these Terms or any Contract will be deemed to have been duly given when made in writing and delivered or sent by email to the party to whom such notice is intended to be given, at the email address of that party in the Contract or to such other email address as may from time to time be notified in writing to the other party.

 

17.4 If any provision of these Terms is invalid, illegal or unenforceable, these Terms take effect (where possible) as if they did not include that provision.

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17.5 Any failure by Body Bike Australia to insist upon strict performance by the Customer of any provision in these Terms will not be taken to be a waiver of any existing or future rights of Body Bike Australia in relation to the provision.

 

17.6 The Customer must not assign or otherwise deal with its rights or obligations under these Terms or a Contract without the prior written consent of Body Bike Australia.

 

17.7 These Terms and Contracts are governed by the laws of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.

 

17.8 These Terms (together with the Contracts) contain the entire agreement of the parties with respect to its subject matter and may only be amended in writing.

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17.9 These Terms do not create a relationship of agency, partnership, joint venture or employment between the parties. Neither party has any authority to act for or incur any liability or obligation on behalf of the other party in any manner.

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17.10 The parties agree that subject to the provisions of these Terms, the United Nations Convention on Contracts for the International Sale of Goods adopted at Vienna, Austria on 10 April 1980 do not apply to the supply of Products under these Terms.