3 Delivery. 4 Terms of Payment

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1 FM RevA Western Australia South Australia Northern Territory Trading Terms 1 Definitions CCA means the Competition and Consumer Act 2010 as amended from time to time; Contract Sum means the amount that is owed by Customer to FST pursuant to an accepted quote, purchase order or tax invoice; Customer means the customer placing, or offering to place, an order to purchase Goods from FST (including its successors and nominees) and where there is more than one customer, the customer s rights and obligations are joint and several; FST means Fluid System Technologies (WA) Pty Ltd ABN and its related corporations and assigns trading as Swagelok (WA) BN ; Goods and Goods Supplied includes goods assembled, imported, supplied and delivered by FST; Guarantor means each person who has agreed at any time to be a guarantor of the Customer s obligations to FST and who may be identified in the Customer s credit trading account application with FST; PPSA means the Personal Property Securities Act 2009 (Cth) as amended from time to time and in these Terms, the terms accession, account, collateral, financing statement, financing change statement, inventory, proceeds, purchase money security interest, secured party and security interest have the same meanings as in the PPSA; and Terms means these terms of trade. 2 Application of Terms The Terms apply in every case where FST provides Goods to the Customer unless otherwise agreed in writing between Customer and FST. Acceptance of Goods by the Customer is conclusive evidence before any court that the Terms apply 3 Delivery 4 Terms of Payment and are binding on the Customer and the Guarantors referred to in clause 10. If there is any inconsistency between these Terms and any written quote, purchase order or tax invoice provided for the provision of Goods, these Terms will prevail. FST may state the estimated delivery date of the Goods in the quote, which date may be varied by FST by prior written notice to Customer (Estimated Delivery Date). FST shall make all reasonable efforts to deliver the Goods on the Estimated Delivery Date but shall not be responsible for any consequential, indirect or other loss incurred as a result of any failure by FST to do so. Where the Estimated Delivery Date is not stated in the quote, FST shall deliver the Goods within a reasonable time. Where delivery is to be made during a certain period, FST may at its option deliver the Goods in instalments during that period. Any measures requested by the Customer to protect the Goods in transit shall be at the Customer's expense. The items listed on the quote are available with delivery times and dates date as quoted but are subject to sale to other customers prior to the Customer placing the order. The Customer must pay the whole amount of any debit balance shown on an invoice or statement issued by FST (Amount Payable) on or before the due date for payment shown on the invoice or statement (Due Date), which is 30 days from the date of the invoice or statement, unless otherwise stated. Time for payment shall be of the essence. If payment is not made in accordance with these Terms, then FST without prejudice to any other remedy, shall be entitled to charge interest and administration charges of 3% per annum, over and above the overdraft rate of FST s Bankers as determined and calculated by FST from the Due Date on the monies outstanding. The Customer will also be liable for any legal or other costs incurred by FST in attempting recovery of the amounts owed by the Customer. If the Customer delays in making payment under these Terms, FST without prejudice to any other remedy, may suspend supply or delivery of the Goods to the Customer until payment is made and FST shall be entitled to increase the Contract Sum to cover any expense incurred as a result of the Customer s default. 5 Basis of Quote Any written quote is based on the quantities listed, and is exclusive of freight charges that shall, unless otherwise stated in the quote, be borne by Customer. The prices quoted do not include GST (to be borne by the Customer) and may be subject to currency fluctuation and FST s supplier s price variations. The prices quoted on FST s quotation forms are valid for 30 days unless otherwise advised in writing or withdrawn by FST at any time prior to acceptance. 6 Technical Details of the Goods The quantity, quality and description of and specifications of the Goods are unless otherwise agreed, as set out in the purchase order. The technical details are set out in FST s current catalogue available at Swagelok.com or upon request. 7 Retention of Title Title to all Goods purchased by the Customer that have not been paid for (Bailed Goods) remains with FST until they are paid for in full. The Customer must hold all Bailed Goods in the possession of the Customer: (i) as fiduciary, bailee and agent for FST; and Page 1

2 (ii) in such a manner that the Bailed Goods remain clearly identifiable and are able to be matched to specific invoices. The Customer is authorised to sell the Bailed Goods in the ordinary course of its business, but only until notified in writing to the contrary by FST or the occurrence of any event listed in clause 7. If the Customer or any person who has guaranteed the due payment of the Customer s debts to FST: (i) becomes an externally-administered body corporate within the meaning of the Corporations Act 2001; (ii) has any step taken for its winding up or dissolution; (iii) holds a meeting of directors which considers a resolution that an administrator should be appointed; (iv) is insolvent within the meaning of the Corporations Act 2001, or is taken or presumed to be insolvent; (v) commits an act of bankruptcy within the meaning of section 40 of the Bankruptcy Act 1966, as amended from time to time; (vi) has distress, attachment or other execution levied or enforced over any of its property; (vii) fails to pay the entire Amount Payable in accordance with these Terms; (viii) breaches any other provision of these Terms or any other agreement with FST; or (ix) if, without the prior consent of FST, there is a change in control of the Customer (as defined in the Corporations Act 2001) or the Customer s business is sold to another person, the Customer must immediately notify FST and FST may, at its election and without prejudice to other rights which FST may have: (x) declare the Amount Payable immediately due for payment; and (xi) enter the premises at which the Bailed Goods are kept (Premises) and remove the Bailed Goods from the Premises. FST may sell or otherwise dispose of any Bailed Goods recovered by FST under this clause 7 in its absolute discretion and on its own account, without limitation to any other rights which FST may have. (f) The Customer indemnifies FST and every person acting on FST s behalf against any loss, damage, liability or expense incurred or sustained as a result of the reasonable exercise by FST of its rights under this clause 7. (g) This clause 7 is for the benefit of FST, and FST may waive the benefit of this clause by giving notice in writing to the Customer at any time. (h) Despite the other provisions of this clause 7 and without its rights in any way, FST may take any action it deems necessary, including legal proceedings to recover any Amount Payable as a liquidated debt. (i) The Customer acknowledges and agrees: (i) that FST owns the Bailed Goods and has a security interest in the Bailed Goods which extends to the proceeds (including any account) and any accession; (ii) that to the extent to which the money owing by the Customer to FST under these Terms represents all or part of the purchase price owing to FST in respect of the Bailed Goods, that security interest will be a purchase money security interest; (iii) that the Customer must not sell, transfer, encumber or otherwise deal with any Bailed Goods without the prior written consent of FST, which consent FST may withhold in its absolute discretion; (iv) to execute any documents and provide all relevant information and full cooperation to FST to ensure FST has a first ranking perfected security interest in the Bailed Goods under the Personal Property Securities Act 2009 (Cth) (PPSA); (v) not to change the Customer's name or contact details (including address) without FST s prior written consent; and (vi) that FST may register any financing statement, financing change statement or other documents and do all other things which are necessary or desirable to perfect and maintain FST s security interest under these Terms, to preserve its interest in the Bailed Goods and to realise FST s security interest with the agreed priority, at the Customer s expense. (j) Clauses 11 to 11(g) inclusive of these Terms apply to the security interest referred to in this clause 7. 8 Risk in Goods and Customer Obligations All Goods purchased by the Customer are at the risk of the Customer from the time the Goods are delivered to the Customer or its nominated agent. Delivery is deemed to occur when the Goods are delivered to the carrier, whether FST arranges, procures or effects the transport of the Goods at the request of the Customer or otherwise. The Customer must inspect all Goods delivered to the Customer or its nominated agent within 7 days of delivery to the relevant Premises (Inspection Period) in order to ensure that Goods delivered are as ordered by the Customer and are not delivered in a damaged state. The Customer must notify FST within the inspection period if Goods are found to be other than as ordered by the Customer or have been delivered in a damaged state. Subject to clause 9(v), if the Customer has not notified FST within the Inspection Period that Goods delivered were not as ordered by the Customer, or that Goods were delivered in a damaged state, then the Goods will be deemed to have been delivered in good condition and as ordered by the Customer. Goods supplied by FST are taken to be resold by the Customer in the same consequential order as the Goods have been supplied by FST. All Goods of the same type as the Bailed Goods will be deemed to have been supplied by FST unless the Customer proves to the contrary at the time FST claims to be entitled to possession of such Goods. To the extent permitted by law, if the Customer is in breach of these Terms, FST may (without prejudice to any other rights) repossess the Bailed Goods and the Customer licences FST and its employees and agents to enter its premises at any time without notice for such purpose, with all related costs of FST to be paid by the Customer on demand. Page 2

3 9 Liability 10 Guarantee Goods supplied by FST are deemed to be defective if the Goods: (i) are not of merchantable quality; (ii) are not fit for any purpose for which they are acquired by the Customer (note that when selecting a product, the Customer must consider the total system design to ensure safe, trouble-free performance. The function, materials, compatibility, adequate ratings, proper installation, operation and maintenance are the responsibility of the system designer and user); (iii) do not conform to any sample, specification or other description given to FST by the Customer in relation to the Goods; (iv) being in the nature of services, are not of a reasonable standard, quality, value or grade; or (v) do not comply with any consumer guarantee or implied warranty applicable to the supply of the Goods which cannot be excluded (including under the CCA). When Goods are defective (as defined in clause 9 FST may, at its option elect to: (i) replace the Goods; or (ii) repair the Goods or reimburse the Customer for the cost of repairing the Goods; or (iii) in the case of Goods being in the nature of services, re-supply the service; or (iv) if payment of the purchase price for the Goods has not been made by the Customer, release the Customer from any obligation to pay the purchase price; or (v) if payment of the purchase price for the Goods has been made by the Customer, refund the purchase price to the Customer, subject to the Customer, where applicable, first restoring the unencumbered ownership of the Goods to FST; and (vi) in any case, reimburse to the Customer any cost incurred by the Customer in transporting the Goods back to FST. To the extent permitted by law and other than any remedies the Customer may have under the CCA, the sole remedies of the Customer under or in relation to these Terms or the supply of Goods under them, whether in contract, in tort (including the law of negligence), under statute or otherwise, are only as specified in these Terms and are subject to the limitations set out in clause 9 and the following limitations: (i) (ii) (iii) FST, and FST s officers, employees and agents, will not have any liability or other obligation to any person or other entity, including the Customer, arising out of, or in any way directly or indirectly connected with, the matters referred to in clause 9 except to comply with its obligations (subject to the other provisions and limitations in this clause 9 under clause 9); all conditions, warranties and other terms pertaining to the condition or quality of Goods are excluded to the extent permitted by law (including the CCA); the Customer must not make any claim or demand, or take any action or other proceeding against FST, or any of FST s officers, employees or agents, for any loss of profits, loss of revenue, loss of anticipated savings, loss or corruption of data, loss of contract of opportunity, loss of goodwill or any indirect, special or consequential loss or damage of any nature arising out of, or in any way directly or indirectly to these Terms and/or the supply of Goods under them including in relation to any of the matter referred to in clause 9. To the extent permitted by law, FST s total liability for any claim under or in relation to these Terms and/or the supply of Goods under them is limited to the price paid by the Customer for the Goods the subject of the claim. In consideration of FST agreeing to supply Goods to the Customer at the request of the Guarantor on these Terms, the Guarantor unconditionally and irrevocably guarantees (and if more than one, then jointly and severally) to FST: (i) the payment of any Amount Payable; and (ii) the performance of each of the Customer's obligations under these Terms. If and to the extent that any Amount Payable is not paid when due, the Customer s Guarantor must immediately on demand from FST pay to FST the amount of the Amount Payable and/or any other amount payable under these Terms that has not been paid. If the Customer fails to perform the Customer s obligations under these Terms when they are due, the Guarantor must immediately on demand from FST cause the Customer to perform the Customer s obligations under these Terms. As a separate and principal obligation the Guarantor indemnifies FST against any loss, cost or liability suffered, paid or incurred by FST in relation to: (i) any failure of the Customer to perform the Customer s obligations under these Terms; or (ii) the failure of the Guarantor to cause the Customer to perform the Customer s obligations under these Terms. This clause 10 is enforceable against a Guarantor whether or not FST has: (i) made demand upon the Customer; (ii) given notice to the Customer or any other person in respect of anything; or (iii) taken any other steps against the Customer or any other person, and whether or not the guarantee given by the Guarantor under this clause 10 is unenforceable for any reason, either in whole or in part. 11 Security Interest The Customer and the Guarantor each: (i) (ii) grant a security interest in all of its present and after-acquired personal property (as defined in the PPSA) (Personal Property) and in all of its present and future rights in relation to any Personal Property to FST; charge as a fixed charge all of its other rights, property and undertaking of any kind and wherever situated, whether present of future including, without limitation, any Page 3

4 (f) (g) (h) 12 Attorney interest in any real property (both legal and beneficial) (other than any Personal Property to which the PPSA applies) to FST; and (iii) agree to mortgage all of its present and future interests in any real property to FST, on request from FST, as security for the performance of its obligations under these Terms including payment of any Amount Payable. The Customer and the Guarantor must each: (i) within 10 days of request from FST, execute such documents as FST requires to perfect the security interest, charge and mortgage; and (ii) pay on demand any duty (including any fines and penalties) assessed on the charge or mortgage. Unless FST otherwise agrees, the costs of registering a financing statement must be paid by the Customer and may be debited against the Customer s trading account, if any. The Customer and each Guarantor acknowledge that FST, by virtue of the charge and mortgage, has a caveatable interest in any real property of the Customer and/or the Guarantor which is or becomes subject to the charge and/or mortgage and may lodge a caveat over that property. The Customer and each Guarantor appoints FST (and if FST is a corporation, each officer of FST for the time being) as its agent and authorised representative for the purpose of requesting information from other secured parties under section 275 of the PSSA. Without limiting any other provision of these Terms, the Customer and each Guarantor waives its rights to receive any notice under the PPSA (including a copy of any verification statement) unless the notice is required by the PPSA and that requirement cannot be excluded. If Chapter 4 of the PPSA would otherwise apply to the enforcement of the security interest created under these Terms, the Customer and each Guarantor agrees with FST that: (i) nothing in section 125, Division 6 of Part 4.3 and section 143 of the PPSA will apply to these Terms or the security interest under it; and (ii) it waives its rights to do any of the following: (A) object to the purchase of the collateral by FST under section 129; (B) receive a statement of account under section 132(3) following a disposal showing the amounts paid to other secured parties and whether security interests held by other secured parties have been discharged; (C) receive a statement of account under section 132(4) if there is no disposal; and (D) redeem the collateral under section 142. The Customer, the Guarantor or FST will not disclose information of the kind mentioned in section 275(1) of the PPSA unless required by law. The Customer and each Guarantor irrevocably appoints FST and each of FST s authorised officers, jointly and severally, to be its attorney to do any act or thing which it is required to do under these Terms. FST may only exercise the power set out in clause 12 where the Customer or Guarantor (as applicable) is in breach of these Terms. FST may exercise its powers even if this involves a conflict of duty and even if it has a personal interest in doing so. A third party may rely on a copy of these Terms certified by a solicitor as evidence of the appointment of FST as the attorney of the Customer or Guarantor. The Customer and each Guarantor must ratify all acts and things done by FST and its authorised officers in the exercise of the power of attorney granted in accordance with this clause. 13 Special Items Items marked on FST documentation with the words "Special", an X, or Product Codes SP, QP, WP, CP, NP, or TP are special items which are not normally stocked by FST (Special Items) and would be specially indented for the Customer. As such, Special Items are not returnable for credit. Specials Items are noncancellable once ordered from FST s supplier. 14 Competition and Consumer Act 2010 Where the provisions of the CCA apply, the provisions of these Terms will be read subject to the application of the CCA and in the case of any conflict, the provisions of the CCA will apply: nothing in these Terms is intended to limit or replace any rights of consumers as that term is defined under the CCA. The Customer agrees that if the Customer buys any Goods for the purpose of re-supply manufacturer or repair of other goods, the CCA will not apply to such supplies; If the Customer on sells any Goods it agrees that it will not make any representations in relation to the goods which are not: (i) contained on the packaging of the Goods; (ii) contained in any materials supplied by FST; (iii) set out in any applicable manufacturer s warranty; or (iv) approved in writing by FST. if the Customer on sells the Goods to consumers who purchase them for the purposes of re-supply, manufacture or repair of other goods, the customer agrees to contract out of the CCA in writing with those consumers. the Customers agrees that it will indemnify FST against any claim, liability or cost incurred by FST as a result of any breach by the Customer of its obligations in sub clause. 15 Goods Returned for Credit No request for credit will be recognised unless: (i) the Customer s request is made within seven (7) days of delivery of the Goods; (ii) the Customer shows proof of purchase by providing a copy of the tax invoice; and (iii) the Goods are either in their original, unopened packages or, where the packaging has been opened, the Goods have not been used, are not shop soiled, or damaged in any way. 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5 All returned items will be subject to inspection by FST s Quality Control Manager. FST reserves the right to charge Customer a 20% restocking fee on the original invoiced amount of the returned Goods. 16 Applicable Law These terms are governed by the law of Western Australia. The Customer and FST submit to the non-exclusive jurisdiction of the courts of Western Australia. 17 General 17.1 Waiver Waiver of any right, power, authority, discretion or remedy arising upon a breach of or default under this agreement must be in writing and signed by the party granting the waiver Severance If any term or part of these Terms is found to be illegal or unenforceable, that part or term shall be deemed not to be part of these Terms and the remainder of these conditions shall continue in full force and effect Indemnities Each indemnity in these Terms is a continuing obligation, independent of the other obligations of the party giving it, and survives the end of these Terms or the supply arrangement between the Customer and FST Further co-operation The Customer must do anything (including executing a document) FST reasonably requires in writing to give full effect to these Terms Terms binding These Terms bind the Customer and each Guarantor both personally and as trustee of any trust of which it is trustee Notices Notices in respect of these Terms may be provided to the customer and the Guarantors by mail or facsimile to the recipient s address provided by it to FST Variation of Terms FST reserves the right to vary these Terms from time to time. It may give notice of any variation of these Terms by publishing the revised Terms on its website and may (but is not obliged to) notify the Customer and/or the Guarantors that it has done so on an invoice, statement or other written communication. If the Customer continues to deal with and place orders for the supply of Goods with FST after any such variation of these Terms, the Customer is taken to have agreed to those Terms as varied and to have taken the supply of Goods on those varied Terms. No terms and conditions sought to be imposed by the Customer upon FST shall apply unless otherwise agreed to in writing by FST Delays Force Majeure FST is not responsible for any delay or failure of performance occasioned or caused by an act of God or other causes beyond the control of FST, even if the cause could be alleviated by the payment of money, or the performance is prevented or delayed because of the failure by FST. Page 5