Terms and Conditions | Bituminous Products
Terms of Sale
In these terms and conditions:
“Goods” means all equipment, products and services agreed to be supplied by the Seller to the Buyer under any contract, arrangement, understanding between the Seller and the Buyer (including pursuant to a quotation or letter of offer accepted by the Buyer);
“Buyer” means the person to whom any quotation is made, any person offering to contract with the Seller on these Conditions of Sale and any person who purchases Goods from the Seller; “Consumer” means:
(i) a Person acquiring Goods at a price not exceeding $100,000; or
(ii) a Person acquiring Goods of a kind ordinarily acquired for personal, domestic or household use or consumption.
But excludes a Person acquiring the Goods, or holding himself or herself out as acquiring the Goods for commercial purpose including for the purpose of:
(i) resupply; or
(ii) using them up or transforming them, in trade or commerce in the course of a production or manufacture or in the course of repairing or treating other goods or fixtures on land;
“Contract” means the Seller’s pricing letter or letter of offer to which the supply of the Goods relates, as updated in writing by the mutual agreement of the parties, the attachments (if any) to that letter and these Conditions of Sale;
“Individual” means a Buyer who is a natural person; “Person” means an Individual and a corporation; and
“PPS Act” means the Personal Property Securities Act 2009 (Cth).
“Seller” means Bituminous Products Pty Ltd (ACN 106 887 094).
2. ENTIRE AGREEMENT
(a) Clause 2(b) and (d) shall not apply to a Consumer.
(b) Unless the Seller otherwise agrees in writing, the Contract contains the only terms and conditions of sale to which the Seller will be bound in connection with the supply of Goods to the Buyer.
(c) The Buyer agrees that the Conditions of Sale contained in this Contract will in all circumstances prevail over the Buyer’s terms and conditions of purchase or supply (if any).
(d) These Conditions of Sale supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the Goods including, but not limited to, those relating to the performance of the Goods or the results that ought to be expected from using the Goods, except to the extent that any prior representations are recorded in the Contract.
(e) Without limiting any other mode of acceptance of this Contract exercised by the Buyer, the Buyer acknowledges that by accepting delivery of the Goods and/or the credit terms offered by the Seller, the Buyer by such conduct agrees to be bound by the Conditions of Sale of this Contract. Where the Buyer is not a Consumer, these Conditions of Sale will apply to the exclusion of all other terms and conditions of purchase or supply.
(f) The Seller may change its Conditions of Sale from time to time. The Seller’s current Conditions of Sale and any changes to the Conditions of Sale will be shown on the websites: www.bituminous.com.au/terms-and-conditions/ and
www.ixom.com/saleconditions — Bituminous Products, together with the date on which any new Conditions of Sale become effective. It is the Buyer’s obligation to check the Seller website or ask the Seller to provide a copy of the most up to date Conditions of Sale at the time the Buyer enters into a Contract. By entering into a Contract after the date upon which the new Conditions of Sale become effective the Buyer accepts and is bound by the changed Conditions of Sale for that Contract and future Contracts. If the Buyer does not accept the changes to the Conditions of Sale, it may notify the Seller to close its account. For the avoidance of doubt, any change to the Conditions of Sale will only apply to transactions entered into after the date on which the new Conditions of Sale become effective and does not result in amendments to any existing Conditions of Sale.
(g) No amendment or variation of the Contract, other than as expressly provided for by these Conditions of Sale is valid or binding on a party unless made in writing and executed by both parties.
3. WARRANTIES, GUARANTEES & LIABILITY
(a) Clause 3 shall not apply to a Consumer with the exception that clause 3(d) shall apply where the Goods are acquired at a price not exceeding $100,000 and the Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption.
(b) The Seller warrants that the Goods supplied accord with any relevant specification contained or referenced in the Contract and are of acceptable quality.
(c) Apart from the warranties contained in clause 3(b), to the maximum extent permitted by law, all warranties and guarantees expressed or implied by statute, the common law, equity, trade, custom or usage or otherwise, in relation to the supply of the Goods, are expressly excluded. Where the exclusion of any of the warranties and guarantees referred to in this clause 3(c) would be illegal, the Seller’s liability for breach of such warranty or guarantee is limited in the manner set out below in clause 3(d).
(d) The Seller’s liability for breach of clause 3(b) or a non-excludable consumer guarantee or warranty implied into this Contract by law or other means is limited to performance of any one of the following:
(i) the prompt retrieval of the non-compliant Goods at the Seller’s cost and the replacement of the Goods or the supply of equivalent Goods;
(ii) the repair at the Seller’s cost of the Goods or payment of the cost of having the Goods repaired; or
(iii) the payment by the Seller of the cost of replacing the Goods or of acquiring equivalent Goods.
(e) To the extent permitted by law, subject to clause 3(d) and without limiting any other provision in these Conditions of Sale, each party’s total liability to the other party for any claim howsoever arising in connection with the Contract or the supply of Goods, whether based on contract, tort, statute, equity or any other cause, is limited to the contract price payable by the Buyer to the Seller for the quantity of Goods to which the claim relates.
(f) The Buyer is responsible for examining the Goods for non-conformance with clause 3(b) and must notify the Seller of any non-conformance in writing within 30 days of delivery and the Buyer may reject the non-conforming Goods in that period. If the Buyer does not notify the Seller within 30 days of delivery the Buyer will be deemed to have accepted the Goods and will no longer be entitled to exercise its rights in this clause 3(f) in respect of the relevant batch of Goods.
(g) To the extent permitted by law and notwithstanding anything else in the Contract, where the Buyer is not a Consumer, each party excludes all liability whatsoever to the other party arising out of or in any way connected with a Contract for any loss of profits, loss of business revenue, failure to realise expected profits or savings, overhead costs, loss of goodwill, loss of reputation, loss of value in any intellectual property, damages or liquidated sums payable pursuant to other agreements, other economic losses, or any consequential or indirect losses of any kind howsoever arising and whether caused by breach of statute, breach of contract, negligence or other tort.
(h) Clause 3(g) does not exclude or reduce the Buyer’s liability to pay the contract price payable by the Buyer to the Seller for the Goods.
(i) In relation to a Consumer, these Conditions of Sale are subject to all Commonwealth and State consumer laws, and no clause in these conditions purports to or has the effect of excluding any of the consumer rights provided such laws.
(a) This clause 4 does not apply to a Consumer.
(b) The Buyer acknowledges that:
(i) it has not relied on any service involving skill or judgement, or on any advice, recommendation, information or assistance provided by the Seller in relation to the Goods or their use or application; and
(ii) it is responsible for ensuring that Goods that comply with the warranties in clause 3(b) are fit and suitable for its purposes, requirements, processes, plant and equipment.
5. DELIVERY & RESPONSIBILITY TO PURCHASE
(a) Clause 5(c) does not apply to a Consumer.
(b) The Seller must make all reasonable efforts to have the Goods delivered to the Buyer on or about the date or within the timeframe forming part of the Contract.
(c) The Seller is not liable for delay in delivery for any reason.
(d) The Buyer must take delivery of and pay for all Goods ordered by it from the Seller, and which the Seller supplies or makes available to the Buyer in accordance with the Contract. Any order placed by the Buyer with the Seller is irrevocable.
(e) Where the Buyer does not take delivery of or collect the Goods from the Seller upon such Goods becoming available to the Buyer at the agreed delivery point, the Buyer will pay the Seller for additional storage costs and reimburse the Seller for any demurrage, transport or futile delivery costs incurred by the Seller, subject to any contrary written agreement contained elsewhere in the Contract.
(a) Unless otherwise agreed in writing, all risk in and to the Goods purchased passes to the Buyer in accordance with the delivery term FCA (as defined in the Incoterms 2020), the place or point of delivery is the Seller’s premises or such other delivery point agreed in writing by the parties.
(b) Without limiting clause 6(a), upon delivery of the Goods to the Buyer or its agent or to a carrier commissioned by the Buyer, the Buyer warrants to the Seller that, in the storage and handling of the Goods, the Buyer and its agents and carriers will comply with all relevant environmental laws and
regulations, and comply with all necessary and/or relevant permits or licences pertaining to the storing and handling of the Goods, and the Buyer must ensure that the Buyer and its agents and carriers are familiar with and adhere to all the necessary and appropriate precautions and safety measures relating to the storing and handling of the Goods. If the Goods comprise bulk chemicals, the Buyer must ensure that its storage tanks and vessels and the pipes, hoses, valves and other components used for the storage or transfer of those Goods are properly installed and maintained so as to prevent any death, injury or loss of containment during the processes of unloading the Goods into and storing those Goods in those tanks or vessels.
(c) If the Seller does not receive forwarding instructions sufficient to enable it to dispatch the Goods within 14 days of notification to the Buyer that they are ready, the Buyer shall be deemed to have taken delivery of the Goods from such date. The Buyer shall thereafter be liable for reasonable storage charges payable monthly on demand.
(d) Where the Buyer re-sells or distributes the Goods to any third parties, it shall be responsible for ensuring that it provides detailed instructions to those third parties regarding the safe storage, handling and use of those Goods and any cylinders, drums or other packaging in which those Goods are stored.
(a) Title in and to the Goods shall not pass to the Buyer until payment in full for all Goods supplied is received in full and in cleared funds.
(b) The Buyer acknowledges that until title to the Goods passes to the Buyer in accordance with this clause, the Buyer holds the Goods as bailee of the Seller. Until the Buyer has paid the Seller in full for the Goods supplied, the Seller remains the owner of such Goods.
(c) Until title in and to the Goods passes to the Buyer in accordance with this clause the Buyer shall store the Goods separately and in such a manner that they are clearly identified as the property of the Seller. In addition to any rights the Seller may have under Chapter 4 of the PPS Act, the Seller shall be entitled at any time until title in and to the Goods passes to the Buyer to demand the return of the Goods and, except where the Buyer is an Individual, shall be entitled without notice to the Buyer and without liability to the Buyer to enter (or have its representatives enter) any premises occupied by the Buyer in order to search for and remove the Goods. The Buyer and its representatives shall provide all reasonable assistance to the Seller and its representatives for this purpose. If there is any inconsistency between the Seller’s rights under this clause 7(c) and its rights under Chapter 4 of the PPS Act, this clause 7(c) prevails.
(d) The Buyer acknowledges that if it sells, leases or otherwise deals with the Goods or products incorporating the Goods before title in and to the Goods has passed to the Buyer in accordance with this clause, it shall hold the proceeds of sale, lease or such dealing on trust for the Seller in a separate account up to the amount owed by the Buyer to the Seller in relation to such Goods.
(e) If title to the Goods has not passed to the Buyer in accordance with this clause, the Buyer’s implied right to sell, use or consume the Goods in its operations shall immediately terminate upon the happening of any of the events stipulated in paragraph 10(b)(i)-(v) hereof.
(f) The Buyer grants to the Seller a security interest (for the purposes of the PPS Act) in the Goods as supplied by the Seller and all proceeds described in sub-clause 7(d) until title passes to the Buyer in accordance with this clause 7, and in all returnable containers, cylinders, drums, packaging and storage vessels in which the Goods are made available such security interest to apply until such storage items are returned to the Seller in good condition and proper working order. This security interest secures all moneys owing by the Buyer to the Seller under any Contract or otherwise. The Buyer acknowledges that each security interest over Goods (or their proceeds) arising under this clause 7 is a “purchase money security interest” under the PPS Act to the extent that it secures payment of the amounts owing in relation to those particular Goods. The Buyer will do anything reasonably required by the Seller to enable the Seller to register these security interests, with the priority the Seller requires, and to maintain those registrations.
(g) The security interests arising under this clause 7 attach to the Goods and storage items when the Buyer obtains possession of the Goods and the storage items and the parties confirm that they have not agreed that any security interest arising under this clause 7 attaches at any later time. Each security interest arising hereunder is a continuing security interest and is not extinguished or in any way diminished even if the Goods or any part of them are processed or comingled with or become part of another product. Such security interests secure the due and punctual payment of all moneys payable to the Seller by the Buyer under the Contract and, in respect of the storage items, the prompt return of those items in good condition and proper working order and in accordance with the Contract.
Unless otherwise agreed in writing, the price charged for the Goods shall be determined and adjusted in accordance with the Seller’s final pricing letter or offer forming part of the Contract. Without limiting its rights in clause 10, the Seller may in its sole discretion charge interest on overdue invoiced amounts at the rate of 1% per calendar month (pro-rated to part of a month), compounding monthly and commencing from the date on which the invoiced amount becomes overdue.
9. FORCE MAJEURE
Deliveries may be totally or partially suspended by the Seller during any period in which the Seller may be prevented or hindered from manufacture, delivery or supply through any circumstances outside the Seller’s reasonable control or where such manufacture, delivery or supply is rendered materially more expensive by such circumstances. Circumstances beyond the Seller’s reasonable control shall include, without limitation, strikes, lockouts or other labour difficulty, inability to obtain any necessary materials, inputs, equipment, facilities or services on usual terms, power or water shortage, accidents or breakdowns of plant or machinery, delays, congestion or blockages at any sea ports or transport depots, software, hardware or communication network. The Seller shall not incur any liability to the Buyer in respect of such suspension.
10. PAYMENT AND DEFAULT
(a) Unless otherwise agreed in writing all accounts are payable within 30 days of delivery, or, if clause 10(c) applies, as otherwise identified on any statement of account issued by the Seller, acting reasonably.
(b) If any of the events set out in (i) to (v) below occur, the Seller may, in its absolute discretion withhold further deliveries or cancel the Contract without prior notice to the Buyer and without prejudice to any other action or remedy which the Seller has or might otherwise have
had, and/or open a new trading account for the Buyer with cash on delivery payment terms.
(i) The Buyer makes default in any payments or is unable or states that it is unable to pay its debts as and when they fall due.
(ii) The Buyer being an individual commits an act of bankruptcy or has a controller or trustee appointed in respect of the Buyer’s estate or any part of the Buyer’s property or assets.
(iii) The Buyer being a company passes a resolution for its winding up or enters into liquidation or has an application for winding up filed against it.
(iv) A receiver, receiver and manager, controller or voluntary administrator is appointed over any part of the property or assets of the Buyer.
(v) The Buyer experiences any analogous event having substantially similar effect to any of the events specified above.
In such circumstances all moneys owing and outstanding to the Seller on any account whatsoever and irrespective of whether the due date on any statement of account has occurred or passed shall become immediately due and payable. The Buyer indemnifies the Seller from and against all costs and disbursements incurred by the Seller in pursuing payment of any overdue debt owed by the Buyer to the Seller (including enforcing any security interest arising under this Contract), including without limitation legal costs on an indemnity basis and the costs charged to the Seller by a debt collection agency and/or bailiff.
(c) Notwithstanding sub-clause 10(a), the Seller may alter or terminate the Buyer’s credit limit or payment terms if:
(i) the Buyer fails to comply with the credit terms offered by the Seller;
(ii) the Buyer’s long-term unsecured credit rating falls below any of BBB/Baa2/BBB issued by Standard and Poor’s Ratings Services, Moody’s Investors Services and Fitch Ratings Limited respectively; or
(iii) the Seller, acting reasonably, determines that the existing credit terms of the Buyer represent an unacceptable credit risk based on credit and liquidity information available to the Seller at the relevant time.
The Seller accepts no liability or responsibility for any loss, incurred by the Buyer due to the operation of this condition.
(d) If the Seller alters or terminates the Buyer’s credit limit or payment terms in accordance with clause 10(c):
(i) the Seller must notify the Buyer as soon as reasonably practicable and in any event within 14 days after altering or terminating the Buyer’s credit limit or payment terms; and
(ii) if the Contract specifies that the Buyer must buy the Goods (or goods of the same kind as the Goods) exclusively from the Seller, the Buyer may terminate the Contract by providing written notice to the Seller within 5 business days of receiving notice under clause 10(d)(i) above.
(e) If the Buyer terminates the Contract under clause 10(d)(ii) and Goods supplied to the Buyer have not been paid for in full, the Seller remains the owner of those Goods and may alter the Buyer’s credit limit or payment terms in respect of those goods under clause 10(c).
11. CONTAINERS AND PALLETS
(a) Containers/IBCs and pallets in/on which Goods are delivered and for which a deposit or rental charge is payable or which are otherwise made available by the Seller on a returnable basis, remain the property of the Seller and must not be used for any other commodity than that contained therein at the time of delivery. On their return in good order and condition by the Buyer and at the Buyer’s expense, to the factory or store of the Seller from which the Goods were delivered, the full amount of any deposit will be repaid or credited to the Buyer. Containers/IBCs and pallets will be deemed to be still in the Buyer’s possession until received at such factory or store. In the case of containers/IBCs or pallets which are received at a factory or store of the Seller otherwise than in good order and condition, only such part of the deposit as in the opinion of the Seller is reasonable, having regard to their actual condition, will be allowed to the Buyer.
(b) The Buyer acknowledges that the Seller may have a security interest (for the purposes of the PPS Act) in any containers/IBC and pallets described in sub-clause 11(a) and the proceeds of these items. The Buyer will do anything required by the Seller to enable the Seller to register these security interests, with the priority the Seller requires, and to maintain those registrations.
12. GENERAL LIEN
In addition to any right of lien to which the Seller may be entitled under the common law, the Seller shall be entitled to exercise a general lien over all items in its possession belonging to the Buyer until the Buyer has paid in full for all Goods supplied by the Seller to the Buyer. The Seller may in its sole discretion sell any item that is subject to the said lien, provided that the Seller shall pay to the Buyer any surplus proceeds that are realised by it from a sale of any such items after discharging in full all monies outstanding to the Seller in respect of Goods that have been Delivered by it to the Buyer and all reasonable costs of sale incurred by the Seller.
The Buyer acknowledges that the Seller has a security interest (for the purposes of the PPS Act) in these items, and the proceeds of these items, until the Buyer has paid in full for all Goods supplied by the Seller in accordance with this clause 12. The Buyer will do anything required by the Seller to enable the Seller to register this security interest, with the priority the Seller requires, and to maintain that registration. Despite this requirement for registration of this security interest, and regardless of whether or not it is actually registered, the Seller may perfect this security interest by possession of the relevant items.
No failure to exercise nor any delay or omission in exercising any right, power or remedy by the Seller operates as or constitutes a waiver. A single or partial exercise by the Seller of any right, power or remedy does not preclude any other or further exercise by it of that or any other right, power or remedy. A waiver is not valid or binding on the Seller unless made in writing. No failure by the Seller to exercise, nor any delay or omission by the Seller in exercising, any right, power or remedy, nor any representation made or conduct carried out by the Seller under the Contract or in connection with the supply of the Goods or any of them shall constitute or provide grounds for a common law or equitable estoppels.
If any provision of these Conditions of Sale or its application to any person or circumstance is or becomes invalid, illegal or unenforceable the provision shall so far as possible be read down to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down the provision or part of it shall be deemed to be void and severable and the remaining provisions of these Conditions of Sale shall not in any way be affected or impaired.
15. GOVERNING LAW
The supply of Goods under these Conditions of Sale is governed by the law of the State of Victoria and the Seller and the Buyer submit to the non-exclusive jurisdiction of the courts of the State of Victoria.
16. TRANSACTION TAX
Where a transaction tax, including a goods and services tax (“GST”) and any transaction taxes that come into existence after the date of these Conditions of Sale, applies to any supply made under these Conditions of Sale, the Seller may recover from the Buyer an additional amount on account of that transaction tax in accordance with clause 10.
17. CHANGE OF LAWS
Without limiting clause 17, if any of the Seller’s costs of:
(a) manufacturing, importing, supplying or transporting the Goods; or
(b) procuring raw materials, services or inputs directly related to the activities in (a),
increase as a result of compliance by the Seller, the Seller’s affiliates and related bodies corporate, or third parties, with:
(c) the introduction of or any change (including a change in interpretation) in any federal, state, local or other law or regulation or order, including any introduction of or a change in a tax; or
(d) any introduction of or change in of a scheme for management or reduction of greenhouse gas emissions or concentrations, or water use conservation or management,
Then the Seller may, by notice to the Buyer, increase the Price for the Goods to the extent required to pass through such increased costs (which may include, without limitation costs of acquiring permits or credits or costs of required plant modifications or additions). Such cost increase shall take effect immediately from the date such notice is provided.
Additional terms relating to price, delivery date/time frame, place(s) of delivery, delivery quantities, purchasing deadlines Inco terms, documents and Goods specifications and other commercial matters are as indicated in the pricing letter or letter of offer to which the supply of the Goods relates, as updated in writing by the mutual agreement of the parties.
The Buyer and the Seller agree that neither of us will disclose to an “interested person” (as defined in section 275(9) of the PPS Act) or any other person, any information of the kind described in section 275(1) of the PPS Act.
20. ENFORCEMENT OF SECURITY INTERESTS
If Chapter 4 of the PPS Act would otherwise apply to the enforcement of the security interests created under this Contract, the Buyer agrees that the provisions referred to in section 115(1) of the PPS Act are hereby contracted out of by the parties and will not apply.
21. NOTICES UNDER PPS ACT
The Seller does not need to give the Buyer any notice under the PPS Act (including a notice of a verification statement) unless the notice is required by the PPS Act and that requirement cannot be excluded or contracted out of.
(a) For the purposes of this clause, “Hardship Event” means:
(i) any changes in raw material inputs outside of the manufacturer’s or the Seller’s control which leads to increased costs to Seller in sourcing, manufacturing or supplying the Goods, including but not restricted to increases in fuel prices, energy costs, raw material cost or freight and transport costs; and/or
(ii) any changes to or introduction of new national, central or regional laws, regulations or policies in any territory, country or jurisdiction which lead to increased costs to Seller in sourcing the Goods or raw materials or services used in the manufacture of the Goods, including but not restricted to increases in government charges, taxes, excises, or any other duties or charges, or any change or revaluation in the medium or long term exchange rate between the local currency in the relevant country and the Australian or US dollar.
(b) If, at any time during the supply period to which the Contract relates, a Hardship Event occurs, Seller may notify the Buyer of such occurrence, and request a meeting to discuss appropriate changes to the terms of the Contract (including pricing terms or delivery dates) or adjustments to the supply price in light of such Hardship Event (such notice, a Hardship Notice).
(c) The Buyer is not obliged to agree to any change to the terms of the Contract as a result of a Hardship Event, but the Seller may suspend supply of the Goods for the balance of the term of the Contract if the Seller, acting reasonably, is not prepared to continue supplying the Goods at the current price or on the current terms and the parties are unable to reach agreement on appropriate changes to the Contract price or other terms of the Contract within 14 days of the date of the Hardship Notice.
(d) This clause operates independently of clause 17 and is not intended to limit the application of clause 17. To the extent of any inconsistency between this clause and clause 17, clause 17 takes priority.
Terms of Purchase
(i) “Australian Consumer Law” means Schedule 2 to the Competition and Consumer Act 2010 (Cth) and the applicable fair trading legislation in the State or Territory in which the relevant Buyer’s site issuing the Purchase Order is situated.
(ii) “Buyer” means Bituminous Products Pty Ltd or its related companies as indicated in the Purchase Order.
(iii) “Consumer” has the same meaning as in section 3 of the Australian Consumer Law.
(iv) “Goods” means all services (including but not limited to consultancies, maintenance) goods or products covered by the Purchase Order, including raw materials, processed materials or fabricated products.
(v) “Purchase Order” means the Buyer’s official purchase order or (in the absence of an official purchase order) a written request to supply, and includes printed purchase orders or a written request to supply, whether delivered by hand, mail, email or facsimile, and purchase orders issued by means of Electronic Data Transfer or otherwise.
(vi) “Seller” means the person, firm, partnership, company or other legal entity to whom the Purchase Order is issued and includes its servants, agents and sub-contractors.
2. ENTIRE AGREEMENT
2.1 These Conditions of Purchase and the Purchase Order represent the entire agreement between the parties and shall be incorporated in the contract for the purchase of Goods specified on the face of the Purchase Order and the Seller shall, by accepting this Purchase Order, be bound by these Conditions of Purchase. These Conditions of Purchase shall apply to the Purchase Order, to the exclusion of all other terms and conditions, whether contained in the Seller’s invoice, offer to supply, pricing offer, or conditions of sale or otherwise. By supplying or delivering the Goods and/or accepting the Purchase Order, the Seller is deemed to have thereby accepted the application of these Conditions of Purchase to the Purchase Order, to the exclusion of all other terms and conditions.
2.2 Where the Seller is certified to ISO9001 or ISO9002 or a higher level of certification, this Purchase Order must be fulfilled in accordance with the terms of that certification.
3. RESPONSIBILITY FOR PURCHASE
The Buyer will not be responsible for any order unless it is issued on a Purchase Order. No variation of a Purchase Order will be effective unless approved in writing by the Buyer. The number appearing on the Purchase Order must be quoted on all invoices, delivery dockets and parcels.
4.1 The Seller warrants that the Goods:
(a) conform with the description provided by the Seller;
(b) conform with any applicable specifications agreed by the Buyer and the Seller;
(c) are of merchantable quality and are fit for the purpose for which they are sold;
(d) are free of defects in material, workmanship and design;
(e) are new (unless otherwise specified); and
(f) are free from all liens and encumbrances and the Seller has good marketable title thereto.
4.2 These warranties are in addition to any other warranties or guarantees contained in the Purchase Order or implied by law or provided by the Seller or any third party.
4.3 If the Buyer is a Consumer, these Conditions of Purchase shall be subject to the provisions of the Australian Consumer Law
5.1 The Seller shall, without limitation, indemnify the Buyer for any loss, damage, expense, claim or liability suffered or incurred by the Buyer, whether consequential or otherwise as a result of a breach of any of the warranties contained in Clause 4 hereof or as a result of a breach of any other term of these Conditions of Sale or the Purchase Order.
5.2 Notwithstanding Clause 5.1, and without limiting the generality thereof, the Seller shall repair or replace, at the Buyer’s option, all Goods which are or become defective or otherwise fail to comply with all warranties contained in Clause 4 within 30 days of notification of such defect or failure from the Buyer. Such repairs or replacements shall be subject to the warranties contained in Clause 4 and the liabilities contained herein.
5.3 If the Buyer is a Consumer, nothing in this clause 5 limits the Buyer’s rights under the Australian Consumer Law.
6. LOSS OR DAMAGE IN TRANSIT
6.1 The Buyer shall advise the Seller of any loss or damage to or defect in the Goods within the following time limits:
(a) partial loss, damage, defects or non-delivery of any separate part of a consignment of Goods within 120 days of the date of delivery of the consignment or part consignment; or
(b) non-delivery of whole consignment of Goods within 60 days of the intended date of delivery as specified in the Purchase Order.
6.2 The Seller shall make good free of charge to the Buyer any loss of or damage to or defect in the Goods where notice is given by the Buyer in compliance with this condition.
Notwithstanding Clause 6, the Buyer may reject Goods not conforming for any reason whatsoever to the Purchase Order upon delivery of such Goods or within a reasonable time thereafter. Any payment by the Buyer for such Goods shall not prejudice its right of rejection contained herein. The Seller shall reimburse the Buyer for:
(a) any purchase price paid by the Buyer with respect to such Goods; and
(b) any costs incurred by the Buyer in connection with the rejection of such Goods.
8.1 The date and place of delivery of the Goods shall be that specified in the Purchase Order unless otherwise agreed between the Buyer and the Seller.
8.2 Time is of the essence hereof insofar as it applies to the obligations of the Seller. If any Goods are not delivered within the time specified in the Purchase Order, the Buyer may either:
(a) refuse to accept such Goods and terminate the Purchase Order without penalty, cost or charge; or
(b) cause the Seller to deliver the Goods by the most expeditious means, whereupon any additional delivery charges in excess of those which would apply for the usual means of delivery shall be borne by the Seller.
8.3 If any Goods are not delivered to the place specified in the Purchase Order or otherwise agreed between the Buyer and the Seller, the Seller will be responsible for any additional expense incurred in delivering them to their correct destination.
9. TITLE AND RISK
Title to and risk of loss in the goods shall pass to the Buyer upon delivery to the Buyer in accordance with Clause 8 but without prejudice to any right of rejection or other rights which may accrue to the Buyer hereunder.
10. INSPECTION IN PROGRESS AND PRIOR TO DISPATCH
The Seller agrees that the Buyer or its agents shall have the right of inspection of all work performed pursuant to the Purchase Order while in any stage of engineering, manufacture or installation, and of the Goods prior to their despatch. The Seller shall make this a condition of any sub-contracted work. The Buyer or its agents shall have the power to reject any work performed or being performed or any Goods that do not conform to the Purchase Order, whereupon the work or Goods rejected shall be reperformed at no additional cost to the Buyer. Any such inspection shall not relieve the Seller of any obligations contained in the Purchase Order or at law.
11. INTELLECTUAL PROPERTY
The Seller shall indemnify the Buyer in respect of any loss, damage, expense, claim or liability suffered or incurred by the Buyer as a result of any claim by a third party alleging infringement of any intellectual property rights in relation to the Goods or any work to be performed pursuant to the Purchase Order.
12.1 The purchase price of the Goods payable by the Buyer shall be that specified in the Purchase Order and shall be fixed firm, and cannot be varied without the prior written agreement of the Buyer.
12.2 The purchase price specified in the Purchase Order shall be on an F.I.S. basis unless otherwise agreed.
12.3 If the Buyer notifies the Seller that it is able to buy any Goods at a lower delivered cost than similar Goods supplied by the Seller, then either the Seller must meet the lower delivered cost for those Goods or the Buyer may cancel any Purchase Order in respect of Goods that have not been delivered and acquire the Goods from the alternative source.
13. TERMS OF PAYMENT
The terms of payment unless otherwise stated on the Purchase Order are 62 days from the completion of the month of invoice. The Buyer reserves the right to set off any amount owing under any Purchase Order against any amount due from the Seller to the Buyer for any reason whatsoever.
14. SUB-CONTRACTING AND ASSIGNMENT
14.1 The Seller shall not assign its rights or obligations hereunder or sub-contract any work to be performed pursuant to the Purchase Order without the prior written consent of the Buyer.
14.2 The Buyer’s consent to the Seller sub-contracting any work to be performed pursuant to the Purchase Order shall not relieve the Seller of its responsibility for the
whole of the work to be performed pursuant to the Purchase Order or of any obligations contained in the Purchase Order or at law.
14.3 Where the Buyer has consented to the placing of sub-contracts by the Seller, copies of each sub-order shall be sent by the Seller to the Buyer immediately they are issued and the Buyer reserves the right to inspect all sub-contracted work.
15. PACKAGING, STORAGE AND HAZARDOUS GOODS
15.1 The Goods shall be properly packed to avoid being damaged during delivery of loading and unloading. All packages shall be clearly marked with the Purchase Order number and the location of delivery.
15.2 The Seller shall comply with all applicable Australian and International Laws, regulations and other relevant requirements relating to the transport, packaging, storage, handling and use of the Goods.
15.3 All Goods which are hazardous goods must be marked by the Seller with international danger symbol(s) and display the name of the material in English. Products classified as “Dangerous Goods” in accordance with the Australian Dangerous Goods Code (ADG Code) must be marked in accordance with that Code. Delivery and other documents must include disclosure of the hazard(s) and name of the material in English. Goods must be accompanied by emergency material in English in the form of written instructions, labels or markings and Safety Data Sheets.
15.4 If requested by the Buyer, all information held by or reasonably available to the Seller regarding any potential hazards or special requirements known or believed to exist in the transport, packaging, storage, handling or use of the Goods must be communicated in writing to the Buyer as soon as practicable upon acceptance of the Purchase Order. The Buyer may cancel the Purchase Order by written notice to the Seller if:
(a) the Seller has not provided the requested information; or
(b) the Buyer, acting reasonably, is not satisfied that the requested information is accurate and complete; or
(c) after having regard to the information provided by the Seller, the Buyer (in its absolute discretion) does not wish to proceed with acquiring the Goods.
15.5 Subject to clause 15.3, the Goods shall be packed and labeled in accordance with any packaging and labeling requirements or specifications communicated by the Buyer to the Seller. Any proposed alteration to the Buyer’s packaging requirements or specifications shall be subject to the Buyers’ prior approval.
15.6 Where required by the Buyer or at law, the Seller shall provide all necessary certificates of conformance, certificates of analysis and test certificates together with the Goods delivered pursuant to the Purchase Order.
16.1 The Seller must maintain adequate insurance including, without limitation:
(a) product and public liability insurance with coverage of not less than USD $20 million per insured event;
(b) worker’s compensation or employer’s liability insurance;
(c) motor vehicle insurance with coverage of not less than USD $10 million per insured event;
(d) product / marine transit insurance for 125% of the replacement cost of the Product; and
(e) additional insurance as specified in the Purchase Order.
16.2 Such insurance must note the Buyer’s interests under the Purchase Order and the Conditions of Purchase. The Seller must, within 5 days of a request from the
Buyer, provide to the Seller certificates of currency for all such insurance policies.
17. FORCE MAJEUR
Neither the Seller nor the Buyer is liable to the other for default or delay in performing its obligations under the Purchase Order caused by any occurrence beyond its reasonable control including, without limitation, fire, strike, industrial disturbance, riot, war, act of God and governmental order or regulation, PROVIDED THAT the party affected by such occurrence gives written notice thereof to the other party within 7 days of the commencement of that occurrence.
18. BUYER’S RIGHTS IN SPECIFICATIONS, PLANS, PROCESS INFORMATION, ETC
Any specifications, plans, drawings process information, patterns or designs supplied by the Buyer to the Seller in connection with the Purchase Order shall remain the property of the Buyer, and any information derived therefrom or otherwise communicated to the Seller in connection with the Purchase Order shall be kept confidential and shall not, without the written consent of the Buyer be published or disclosed to any third party, or made use of by the Seller except for the purpose of implementing the Purchase Order. Any specifications, plans, drawings, process information, patterns or designs supplied by the Buyer to the Seller must be returned to the Buyer on request by the Buyer. Any invention or improvement made by the Seller attributable in whole or in part to such specifications, plans, drawings, process information, patterns or designs shall be the property of the Buyer.
19. WORK ON BUYER’S SITE
Should the Purchase Order require the Seller to carry out any work on a site of the Buyer, such work shall be subject to, in addition to the conditions of the Purchase Order and any conditions imposed by law, the conditions contained in the General Conditions for On-Site Work by Contractors for the particular site, a copy of which will be given to the Seller before any such work commences.
20. APPLICABLE LAW
The Purchase Order shall be governed by, subject to and construed in accordance with the laws of the State or Territory in which the relevant Buyer’s site issuing the Purchase Order is situated and the parties accept the jurisdiction of the courts of that State or Territory and the Commonwealth of Australia. The Seller shall comply at all times with all applicable Federal, State and local laws and regulations.
The Seller acknowledges that the purchase price includes provision for any GST payable with respect to the supply of the Goods and the Buyer is not therefore required to pay any separate or additional amount on account of GST. The Seller must, as a condition of payment of the Price, provide a tax invoice to the Buyer where the supply of the Goods is subject to GST.