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“Application” means the application by the Purchaser to the Seller for commercial credit;
“Purchaser” means the Purchaser named overleaf of the Specified Goods.
“Sale Contract” means the terms and conditions of the purchase and sale of the Specified Goods as set out and described in the Sale Order.
“Sale Order” or “Order” means this Sale Order form incorporating the terms and conditions hereof.
“Seller” means Vale Steel Constructions ((ABN: 85 966 110 573) of 2 Irwin Street, Bellevue, in the State of Western Australia.
“Specified Goods” means the goods and/or services or any part of them the subject of this Order.
- This Sale Order together with:
- all conditions implied by law (except where inconsistent with the express terms of this Order); and
- all representations made by the Purchaser for the benefit of the Seller in relation to the Specified Goods (except where expressly excluded in this Order); and
- any documents incorporated by reference herein to the extent that they or any part of them is not inconsistent with the express terms of this order;
shall contain all the terms and conditions of purchase and sale in relation to the supply of the Specified Goods and acceptance of this Order by the Purchaser includes acceptance of these terms and conditions as the sole basis of the purchase and sale to the exclusion of any conditions of sale appearing on any document of the Purchaser save as aforesaid.
- Without limiting the foregoing:
- any purported terms and conditions of sale seeking to limit the liability of the Seller in relation to the Specified Goods and which may be contained in sales literature, tenders, quotations, information, notices, delivery dockets, acceptance letters, tax invoices or other material provided by the Seller but which are not expressly contained in this Order, or incorporated by express reference herein are deemed to be included; and
- modification of these terms and conditions expressed in any document of the Purchaser shall not apply to this Order unless expressly accepted in writing by the Seller; and
- no amendment or alteration to this Order shall be made without the written agreement of the Seller;
- Notwithstanding the completion of this Sale Order any condition which is capable of taking effect after completion shall remain of and in full force and effect.
- QUALITY, QUANTITY, DELIVERY, WARRANTIES:
- Any and all statements made by the Seller as to weight, length, quantity or other characteristics of the Specified Goods are approximate and the Seller may supply the Specified Goods on an actual or calculated basis.
- A calculated basis will be in accordance with the applicable Australian standards.
- The Seller’s statements as to weight, length, quantity or other characteristics are final and the Seller is not liable for any errors in such statements unless the Purchaser gives the Seller:
- written notice of any error within 14 days of delivery;
- a reasonable opportunity to examine and re-test the Specified Goods before they are used or dealt with.
- The Seller will make all reasonable efforts to have the Specified Goods delivered to the Purchaser or his designated agent as agreed between the parties (or if there is no specific agreement then at the Seller’s reasonable discretion), but the Seller shall not be liable for
- any failure to deliver or delay in delivery for any reason; or
- any damage or loss due to unloading or packaging; or
- damage to property caused upon entering premises to deliver the Specified Goods.
- Any costs incurred by the Seller due to any failure by the Purchaser to accept the Specified Goods at time of delivery will be reimbursed by the Purchaser to the Seller.
- Except as required by law, the Seller will be under no obligation to accept Specified Goods returned for any reason.
- Specified Goods supplied which are not manufactured by the Seller (or to the extent that they are not manufactured by the Seller) are subject to the chemical composition, physical properties and product standards of the original manufacturer, and by such warranty as specified by the original manufacturer (if any), and the Seller does not, unless specifically required by law, give any warranty beyond such warranty.
- All warranties implied at law shall apply to the Specified Goods in addition to any warranty expressly herein contained. In the event of any inconsistency between any implied warranty or express warranty or guarantee the most favourable to the Seller shall prevail.
- PRICE AND PAYMENT:
- Unless otherwise agreed in writing, the price charged for the Specified Goods shall be
- exclusive of any transaction tax (“transaction tax” includes the goods and services tax as well as any identified or new transaction taxes that come into existence after the effective date of these Terms and Conditions), and
- according to the price ruling as determined by the Seller at the date of delivery.
- Any price indications or price lists are subject to alteration in accordance with the price ruling as at that date of delivery.
- Where a product margin is included on the invoice for the Specified Goods the Purchaser will pay that product margin in addition to any quoted price.
- Where a transaction tax applies to any supply made under these terms and conditions, the Seller may recover from the Purchaser an additional amount on account of that transaction tax.
- Notwithstanding any provision in this Sale Contract, the Seller may increase the price of the Specified Goods after the commencement of the Sale Contract and prior to delivery of the Specified Goods if the price increase results from an increase in the price of any inputs which comprise part of the Specified Goods.
- The purchase price stated in this Order is deemed to include the cost of delivery to and off loading at the destination specified overleaf and packaging of the Specified Goods in accordance with the delivery instructions specified overleaf unless expressly stated to the contrary.
- Payment for the Specified Goods must be made in full (without any set off) and received by the Seller by the last business day of the month following the month of delivery unless otherwise identified by the Seller on any statement of account or invoice.
- Payment is only received by the Seller when it receives cash or when the proceeds of other methods of payment are credited and cleared to the Seller’s bank account.
- The Purchaser will be in default if:
- the Purchaser breaches the Terms and Conditions;
- payment for the Specified Goods has not been received by the Seller by the due date of payment;
- the Purchaser being an individual commits an act of bankruptcy or becomes an insolvent under administration;
- the Purchaser being a body corporate becomes an externally-administered body corporate or has an application for winding up filed against it;
- The Seller forms the opinion that the Purchaser’s credit worthiness or credit standing alters from that indicated in its Application.
- If the Purchaser defaults, the Seller may:
- treat the whole of the Sale Contract and any other Contract with the Purchaser as repudiated and sue for breach of contract; and/or
- refuse to supply any Specified Good to the Purchaser; and/or claim the return of any Specified Goods in the Purchaser’s possession where title has not passed to the Purchaser; and/or
- without notice to the Purchaser withdraw or vary any credit the Seller has provided to the Purchaser; and/or
- without notice to the Purchaser make all monies owing by the Purchaser to the Seller on any account immediately due and payable.
- PROPERTY, TITLE AND RELATED MATTERS:
- Risk in the Specified Goods passes to the Purchaser upon delivery (including all risks associated with unloading) or upon title in the Specified Goods passing to the Purchaser, whichever is the earlier.
- The legal and equitable title to the Goods will only be transferred from the Seller to the Purchaser when the Purchaser has met and paid all that is owed to the Seller on any account whatsoever.
- The Purchaser acknowledges that until the Purchaser has met and paid all that is owed to the Seller on any account whatsoever, the Purchaser holds the Specified Goods as bailee for the Seller and that a fiduciary relationship exists between the Purchaser and Seller.
- Until the Seller receives full payment of all monies due to it from the Purchaser, the Purchaser shall keep the Specified Goods separate and in good condition as a fiduciary of the Seller, clearly showing the Seller’s ownership of the Specified Goods and, shall keep books recording the Seller’s ownership of the Specified Goods and the Purchaser’s sale or otherwise of them in accordance with paragraphs 6(f) and 5(g). The Purchaser if required, shall deliver the Specified Goods up to the Seller.
- If the Purchaser defaults, in addition to clause 7(b), the Seller may take possession of the Specified Goods wherever the Specified Goods are located and the Purchaser agrees that representatives of the Seller may enter upon the Purchaser’s premises for that purpose.
- Despite paragraph 6(a), the Purchaser may sell as fiduciary agent for the Seller the Specified Goods to a third party in the normal course of the Purchaser’s business provided that where the Purchaser is paid by that third party, the Purchaser holds the proceeds of sale to the extent of the amount owing by the Purchaser to the Seller at the time of receipt of such proceeds on trust for the Seller. The Purchaser must keep those proceeds separate on trust for the Seller and not mix those proceeds with any other monies.
- If the Purchaser uses the Specified Goods in some manufacturing or construction process of its own or some third party, then the Purchaser shall hold such part of the proceeds of such manufacturing or construction process as related to the Specified Goods on trust for the Seller. Such part shall be deemed to equal in dollar terms the amount owing by the Purchaser to the Seller at the time of the receipt of such proceeds. The Purchaser must keep that part of the proceeds separate on trust for the Seller and not mix those proceeds with any other monies.
- Notwithstanding the above, the Purchaser is still required to pay the Seller for Specified Goods already delivered and for goods manufactured or ordered to specification and not yet delivered.
- INTELLECTUAL PROPERTY:
(a) The Purchaser warrants to the Seller that all documents provided by the Purchaser are accurate and that the Seller is entitled to use all such documents for the purposes of the Sale Contract and that such use does not infringe any third party’s intellectual property rights.
(b) The Purchaser indemnifies the Seller against all claims and all losses and damages incurred by the Seller as a result of documents provided by the Purchaser to the Seller for the purposes of or in the course of the supply of the Specified Goods breaching a third party’s intellectual property rights.
(c) If the Purchaser receives any confidential information from the Seller the Purchaser may not use or disclose such information unless it receives the prior written consent of the Seller, such information enters the public domain (other than as a result of a breach of this paragraph) or the use or disclosure is required by law.
- The Seller may grant the Purchaser credit upon the Terms and Conditions on the basis of the Application and such other documents and information as may be required by the Seller.
- Until the Seller grants the Purchaser credit by notice in writing, the Seller will only supply Specified Goods to the Purchaser on the basis of cash in advance.
- The granting of credit does not oblige the Seller to extend any particular amount of credit to the Purchaser.
- The Purchaser must notify the Seller in writing if there is any change in the shareholding or ownership of the Purchaser or any material change in the Purchaser’s financial position.
- The Purchaser agrees that if requested by the Seller the Purchaser will:
- charge in favour of the Seller all beneficial interests (freehold and leasehold) in real estate held now or in the future by it as security for payment of all and any moneys payable by the Purchaser to the Seller.
- execute a mortgage or other instrument of security in form requested by the Seller.
- FORCE MAJEURE:
- The Seller is not liable for failure to perform the Sale Contract to the extent and for so long as its performance is prevented or delayed because of:
- circumstances outside the Seller’s control;
- failure of Seller’s machinery; or
- failure of a supplier to the Seller.
- REPRESENTATIONS AND FITNESS FOR PURPOSE:
- Except as expressly provided to the contrary in the Sale Contract, all representations, warranties, terms and conditions in relation to the Specified Goods (whether implied or otherwise) are hereby excluded to the maximum extent permitted by law.
- The Purchaser agrees that if it is aware (or should be aware) that the Specified Goods, the subject of an Order, are for a particular purpose (including, but not limited to, use as a component part of another product) or are required to possess special or uniform characteristics, the Purchaser will clearly specify that purpose or those characteristics in any such Order.
- LIMITATION OF LIABILITY
(a) Subject to clause 12(a), the Seller’s liability to the Purchaser (and any party claiming through the Purchaser against the Seller) for any claim for loss or damages (including legal expenses) made in connection with the Sale Contract for contract, tort (including negligence), under statute, in equity or otherwise shall be as follows:
(i) If the Seller is in breach of a Sale Contract the Seller’s liability is strictly limited to:
(A) for goods, products or materials the cost of replacement of the defective Specified Goods as soon as reasonably practicable, or the repair of the defective Specified Goods or the repayment (or allowance) of the Invoice price of the defective Specified Goods at the option of the Seller;
(B) for services, to the provision of the services again or payment of the cost of having the relevant services provided again at the option of the Seller.
- The Seller’s liability for breach of a Sale Contract does not extend beyond the defective Specified Goods to any other Specified Goods that are part of an Order or otherwise;
- where loss or damage is not covered by subparagraph 13(a)(i), the Seller is not liable to the Purchaser under statute, in equity or in tort (including negligence or otherwise) for any loss or damage to person or property arising from or caused in any way by the Specified Goods;
- The Seller shall not be liable for any indirect, special or consequential loss or damage of any nature whatsoever resulting from or caused in any way by the Specified Goods;
- “indirect, special or consequential loss or damage” includes:
(A) any loss of income, profit or business;
(B) any loss of goodwill or reputation;
(C) any loss of value of intellectual property.
(b) Any claim by the Purchaser in respect of defective Specified Goods and/or damaged Specified Goods must be made in writing within 14 days of the delivery of the Specified Goods.
(c) The Seller’s obligations in the event of paragraph 13(a) applying do not include:
(i) the cost of removal of defective Specified Goods whether installed or otherwise;
(ii) the cost of installation of replacement for defective Specified Goods;
(iii) defects in Specified Goods caused by improper installation or maintenance of Specified Goods or related components or normal wear and tear and damage.
- The Seller waives a right under a Sale Contract only by written notice that it waives that right.
- A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.
- If a provision of a Sale Contract would, but for this clause, be unenforceable:
- the provision must be read down to the extent necessary to avoid that result;
- if the provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of the Sale Contract.
- The Seller may vary the Terms and Conditions without notice to the Purchaser.
- The Purchaser must pay the Seller all costs and expenses incurred by the seller in connection with the Sale Contract including legal expenses (on a solicitor-client basis), stamp duty and costs incurred in the recovery of monies owing by the Purchaser to the Seller or in otherwise enforcing Seller’s rights against the Purchaser under the Contract.
- APPLICABLE LAW
- This document is governed by the law of the State of Western Australia and that State shall have exclusive jurisdiction in connection with this document.