2. CONTRACT
Any contract for the sale of Goods by Seller to Buyer ("Contract")
is upon and subject to these Conditions and the terms on the reverse
hereof and no other, unless other written terms are signed by a duly
authorized representative of Seller. No order shall be binding on
Seller unless and until it is accepted by Seller in writing. If no
Quotation or written acceptance is given by Seller all deliveries
are made subject to these conditions.
3. QUOTATIONS
Any Quotation;-
(i) is an offer to sell on these Conditions only and if accepted is
accepted without qualification.
(ii) Unless otherwise agreed in writing, will lapse without notice
after two (2) months from the date it is made.
(iii) Is subject to availability of goods in stock.
4. PRICE
All Goods are sold at the price current at the time of dispatch
notwithstanding any prior statements of price and all costs and
charges for freight and handling are payable by Buyer (unless
otherwise stated on the reverse hereof). Seller reserves the right
to apply the extent of any increase in costs to the amount charged
for any Goods. Special delivery charges incurred in complying with
Buyer's instructions will be charged as an extra to Buyer.
5. PAYMENT
(1) Interest:
The price is payable net cash not later than the last day of the
calendar month following the month of delivery. Thereafter any part
of the Price unpaid shall bear interest from such date until payment
at a rate equal to the Commonwealth Bank Corporate Overdraft
Reference Rate most recently published before that date.
(2) Delivery by Instalments:
If Goods are delivered by instalments the sale of each instalment
comprises a separate contract. Payment for any such instalment
shall be in accordance with sub-clause (a) and failure to pay on
the due date shall entitle Seller to suspend deliveries of other
instalments without prejudice to any other remedy available to Seller.
(3) Taxes:
The price does not include any taxes, duties or other governmental
charges of any type imposed on this Contract or any performance
hereof. Buyer shall pay all such taxes, charges and duties or
reimburse Seller for such costs at the time of payment for the
Goods. All costs after delivery are Buyer's responsibility.
(4) Credit Standing
If Seller becomes dissatisfied with Buyer's credit standing,
Seller may suspend further deliveries until Buyer's credit standing
has been established to Seller's satisfaction.
6. RISK AND TITLE
(1) The risk in respect of all Goods shall pass to Buyer upon
delivery, notwithstanding that Seller may arrange and charge for
the costs of carriage. Delivery of the Goods to a carrier
constitutes delivery to Buyer. Seller will not in any circumstances
be liable for damage, breakage or loss occurring after the Goods
have been so delivered.
(2) Seller shall retain title to the Goods until payment in
accordance with clause 5 has been made and has the right to
repossess and sell the Goods upon Buyers Default under clause
12 hereof, whereupon title to the Goods shall pass to the Buyer.
7. DELIVERIES
(1) Transport:
Where the Seller is responsible for arranging the transport of the
Goods to the Buyer's premises then the Seller may select the route,
method and agency of transportation and has the right of stopping
the Goods in transit.
(2) Excess:
The maximum permitted percentage in excess of the quantity
ordered by Buyer which Seller shall be allowed on each delivery
of non-standard refractory brick (and which, if available, shall
be added to quantities ordered) is as follows:
 |
Quantity Ordered |
Allowance |
| |
0-25 pieces |
100% |
| |
26-200 pieces |
30% |
| |
201-1000 pieces |
6% |
| |
1001-10,000 pieces |
3% |
| |
over 10,000 pieces |
1% |
(3) Delivery:
Seller shall endeavour to comply with any date for delivery of the
Goods but unless the Contract expressly otherwise provides, such
date shall not be binding. If Seller fails to deliver the Goods by
such date such failure shall not constitute a breach of the Contract
and Buyer shall not be entitled to any remedy in respect of it.
(4) Suspension:
If Seller is unable to supply Goods or any part thereof due to force
majeure. Seller may suspend performance of the Contract or make
partial deliveries for so long as such circumstances exist, provided
that if performance is suspended for more than three consecutive
calendar months, Buyer or Seller may by written notice terminate
the Contract or cancel any outstanding parts thereof. In such
circumstances Buyer shall pay for all work done and materials used
by Seller to the date of termination. Seller shall not be liable
for any direct or consequential loss or damage suffered by Buyer
as a result of Seller's inability to perform its obligations in
such circumstances.
In the event of any failure by Buyer to perform its obligations
under the Contract, Seller shall be entitled without prejudice to
any other remedy of Seller or to the obligation of Buyer to pay for
goods already delivered or manufactured:
(a) to suspend delivery to Buyer so long as such failure shall
continue; and/or
(b) by notice to Buyer to cancel any further obligations of Seller
under the contract.
(5) Liability Limitation:
Seller shall not be liable in contract or in tort or otherwise
howsoever for any loss or damage including consequential loss or
damage arising from delay in manufacture or delivery howsoever
caused or for any delay in failure of delivery after goods have
been dispatched from Seller's work (unless otherwise agreed by
Seller in writing).
8. DEFECTIVE GOODS
(1) Refund, Repair or Replace:
Seller undertakes at its option to refund the price of or to repair
or replace, free of charge, any Goods manufactured and supplied by
it which are returned carriage paid to Seller and which are shown
to Seller's satisfaction to be defective (provided that they have
been properly stored, assembled, maintained, not combined with other
goods and used in accordance with Seller's directions, and fair
wear and tear excepted) by reason of faulty material or workmanship
within ninety (90) days from the date of their original despatch.
If the Goods are shown to be so defective, Seller will refund the
carriage costs. Subject to clause 15, Seller shall not be liable
for any loss or damage caused by, or arising out of, any alteration
or modification or any change whatsoever to the Goods, or any part
thereof, by Buyer or any third party without Seller's prior written
consent.
(2) Liability Limitation:
Subject to clause 15, Seller shall not otherwise be liable for any
loss or damage whether direct, indirect or consequential incurred
by Buyer resulting indirectly from a defect in the Goods, or loss
resulting therefrom including loss of profits, loss of production,
or any other consequential loss or damage, or incurred in consequence
of any negligence or default on part of Seller its servants or
agents in the manufacture or supply of Goods.
9. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY
(1) Seller's Property
Unless otherwise agreed in writing, patterns, jigs, tools, fixtures
and any other plans, drawings and specifications (information)
manufactured or prepared by Seller in relation to any Contract shall
remain Seller's property notwithstanding any charge therefore Seller
may, in its discretion, make to Buyer and Seller reserves all
proprietary and industrial property rights vested in it in relation
to such information. Buyer shall not without Seller's written
consent deal in any way with the information and when in possession
of any information shall as promptly as possible and in any case
immediately upon demand return it to Seller.
(2) Buyer's Tools
Where the Seller at Buyer's request uses Buyer's patterns, jigs,
tools or fixtures Buyer shall be liable for any repairs, alterations
or replacement necessary thereto or for any damage or loss (unless
occurring exclusively due to the negligence of Seller, its servants
or agents/whether due to fair wear and tear, inherent unsuitability
for the production of satisfactory Goods or otherwise.
(3) Seller's Specifications
Unless Seller agrees in writing to work to Buyer's drawings or
specifications, Seller's normal tolerances and material
specifications shall apply.
(4) Proprietary Rights
Seller and its suppliers shall have no liability to Buyer in
connection with any claim that buyer's intended or actual use or
resale of any of the goods either as sold or in conjunction with
other materials constitutes an infringement of any proprietary or
industrial property rights of third parties and buyer agrees to
indemnity Seller against all such claims in relation to the
production or sale of any goods in conformity with Buyer's
specifications or instructions.
10. REPRESENTATIONS
(1) Subject to clause 15, Buyer assumes responsibility for the
suitability or fitness for any particular purpose of the Goods, and
acknowledges that any statement or representation as to the
suitability or fitness of Goods is a statement of opinion only and
that no reliance is placed on it.
(2) It is expressly agreed that any technical advice furnished
by Seller is, unless furnished pursuant to an express agreement
supported by valuable consideration given gratis and accepted at
Buyer's risk and Seller assumes no obligation or liability for any
advice given or results obtained by Buyer.
11. BUYER'S PREMISES
If Seller's employees or agents work on Buyer's premises or
elsewhere at Buyer's request in relation to the manufacture, supply,
installation or use by Buyer of the Goods, Seller shall not be
liable to Buyer in respect of any claims for damage to Buyer's
property.
(1) Except where the liability incurred is wholly and exclusively
due to the negligence of Seller's employee or agents: and
(2) Seller shall not be liable for any indirect or consequential
loss or damage whatsoever or howsoever arising and whether suffered
by Buyer or any third party: and
(3) Seller shall in no event be liable for any amount in excess
of the price of Goods.
12. BUYER'S DEFAULT
If (i) Buyer commits a breach of the Contract or any of its
obligations: or
(ii)The Buyer threatens to cease to carry on its business or is
unable to pay its debts within the meaning of section 460(2) of the
Corporations Law or any amending legislation: or
(iii) A receiver, liquidator, trustee in bankruptcy or official
manager or administrator of the Buyer or any of its business or
property is appointed.
Seller may terminate the Contract forthwith and upon written
notice of such termination posted to Buyer's last known address
any Contract shall be deemed to have been terminated without
prejudice to any claim or right Seller might otherwise make or
have against Buyer but it is nevertheless agreed that Buyer shall
pay Seller at the Contract rate for all the work done, materials
used and Goods supplied up and/or including the date of termination.
13. Waiver by the Seller of any specific default
by the Buyer under these Conditions of Sale, or a failure of the
Seller to cancel the sale or any part thereof when such right arises,
shall not constitute a waiver by the Seller of any of the Conditions
of Sale except such defaults as are specifically waived, and then
only in respect of the actual defaults.
14. LIEN
Seller shall in respect of all unpaid debts or monies due from
Buyer have a general lien on all Goods and property of Buyer in its
possession and may on the expiration of fourteen (14) days notice to
Buyer dispose of such goods or property as it thinks fit and apply
the proceeds towards reduction of such debts.
15. STATUTORY LIABILITY
Nothing in this Contract shall exclude, restrict or modify any
term, condition, warranty or liability implied into this Contract
by statute, where to do so would render any provision of this
Contract void or Seller subject to penalties. Subject to that, any
implied conditions warranties and liabilities, including liability
for consequential loss and for loss arising from negligence, are
hereby excluded. Where it is legally permitted, any remaining
liability implied by statute or resulting from breach of any
condition or warranty implied by statute is limited to repair or
replacement of the Goods at the Seller's option.
16. FORCE MAJEURE
If by any reason of Act of God, war, government control, storm,
fire, tempest, strike, lockout or any other cause beyond its control
Seller is prevented from performing any under this contract Seller
shall be entitled to suspend deliveries and, at its option, should
such suspension continue for a period of six (6) months, by written
notice to cancel the unfulfilled part of the Contract.
17. GOVERNING LAW
These conditions and any Contract made between Seller and Buyers
shall be governed by and construed in all respects in accordance
with the laws of the State of Victoria and any disputes arising
thereunder shall be submitted to the jurisdiction of the Courts of
that State and for such purpose the parties hereby irrevocably
submit to the non-exclusive jurisdiction of those Courts. |
