1.         Limited Warranty; Disclaimer; Limitation of Warranties and Remedies.  H.B. Fuller Company Australia Pty. Ltd. (“H.B. FULLER”) warrants to the purchaser (“Buyer”) of products (“Product”) from H.B. FULLER that the Product will be manufactured in accordance with the specifications.  These specifications are available upon request.

TO THE EXTENT PERMITTED BY LAW:

      a.   This warranty does not cover test data or any defects, damages or other harm caused to any extent or in any way by (i) the failure of Buyer or Buyer’s customers to follow any applicable H.B. FULLER instructions, if any, or (ii) the abuse or misuse of the Product. 

      b.   THIS LIMITED WARRANTY IS IN PLACE OF ALL OTHER CONDITIONS AND WARRANTIES, EXPRESS OR IMPLIED. 

c.    H.B. FULLER EXPRESSLY DISCLAIMS ANY OTHER CONDITIONS AND WARRANTIES, INCLUDING CONDITIONS AND WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 

d.   ALTHOUGH H.B. FULLER MAY SUGGEST A PRODUCT OR DEVELOP A PRODUCT, IT IS THE RESPONSIBILITY OF THE BUYER TO TEST AND DETERMINE THE SUITABILITY OF THE PRODUCT FOR ANY INTENDED USE OR PURPOSE. 

e.   FOR ANY VALID CLAIM PRESENTED BY BUYER UNDER THIS WARRANTY, H.B. FULLER WILL REPLACE THE PRODUCT, OR AT ITS OPTION, REFUND OR CREDIT THE PURCHASE PRICE. 

f.    THIS REPLACEMENT/REFUND REMEDY IS BUYER’S EXCLUSIVE REMEDY AGAINST H.B. FULLER. 

g.   BUYER AGREES THAT NO OTHER REMEDY (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST SALES, INJURY TO PERSON OR PROPERTY OR ANY OTHER INCIDENT OR CONSEQUENTIAL LOSS) WILL BE AVAILABLE TO BUYER FOR CLAIMS ARISING OUT OF A  BREACH OF WARRANTY REGARDLESS OF THE LEGAL THEORY (CONTRACT, TORT OR OTHER).

h.   IN NO EVENT WILL H.B. FULLER BE OBLIGATED TO PAY DAMAGES TO BUYER FOR ANY AMOUNT EXCEEDING THE PRICE THAT BUYER PAID FOR THE PRODUCT.

i.    EXCEPT AS OTHERWISE PROVIDED HEREIN, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR OTHER ECONOMIC LOSS. 

j.    This Agreement confers no rights or remedies on any third parties, whether as third party beneficiaries or otherwise.

      k.   Upon delivery of the Products, Buyer shall inspect Products and within seven (7) days deliver to H.B. FULLER notice in writing of any claim against H.B. FULLER.  If no such notice is received by H.B. FULLER within those (7) days, the Products shall be deemed to be in all respects in accordance with the order and Buyer shall be bound to accept and pay for the same accordingly and Buyer shall have no claims against H.B. FULLER.

2.   Delivery.  Deliveries will be Ex Works H.B. FULLER’s manufacturing facility or warehouse, unless otherwise designated by H.B. FULLER.  H.B. FULLER will not be liable for any delay in production or delivery due to any cause whatsoever beyond the reasonable control of H.B. FULLER.  H.B. FULLER will not be liable for any damage to or loss of Product following delivery to the Ex Works point, including any damage or loss in transit.

3.   Order Acceptance.  All orders placed by Buyer are subject to acceptance by H.B. FULLER.  Unless otherwise agreed, delivery times will be from the date of receipt of Buyer’s purchase order. 

4.   Terms of Payment and Price.  Subject to approval and continuation of credit by H.B. FULLER, the terms of payment are thirty (30) days from the end of the month of invoicing. Prices will be in accordance with H.B. FULLER’s prices in effect at the date of shipment.  Any taxes or other charges imposed upon the purchase or resale of Products will be paid by Buyer.  H.B. FULLER may refuse orders, require prepayment in full, if all prior invoices are not paid in full or if H.B. FULLER reasonably deems such steps necessary to secure payment.  Pricing errors may be corrected at any time.  All payments that are past due will be subject to a late payment penalty of 1 ½% per month or the maximum legal rate, whichever is less.

5.   Security and Collection.  As further security for payment hereunder, Buyer hereby grants H.B. FULLER a security interest in all inventory and agrees to execute and deliver documents reasonably requested by H.B. FULLER to perfect this interest.  Buyer further agrees to pay to H.B. FULLER all reasonable and necessary costs of collection hereunder, including reasonable attorney’s fees.

6.   Title. Ownership and property shall pass from the H.B. FULLER to Buyer upon delivery of the Products.  However if payment is not made within the agreed payment terms, the H.B. FULLER shall without prejudice to any other remedies, be entitled to enter the premises where the Products are situated and re-take possession of the Products.  Upon the appointment of Receiver, Receiver and Manager, Liquidator or Mortgagee in possession of the business of the Buyer, ownership of any Products for which the H.B. FULLER has not been paid will immediately revert to the H.B. FULLER notwithstanding that the due date for payment may not have elapsed.  The H.B. FULLER is hereby granted an irrevocable license to enter such premises for the purpose of repossessing the Products and upon the re-taking of possession the H.B. FULLER shall have title to such Products.