Conditions of Sale
The following shall apply to the exclusion of all other terms and conditions conflicting with or purporting to modify:-
- Incoterms 2000 (as amended) are expressly incorporated into this Contract;
- The United Nations Convention on Contract for the International Sale of Goods 1990 (the Vienna Convention) is excluded from this Contract.
Until payment of all monies owing to Seller, on any account whatever, Seller remains the legal and equitable owner of and has property in the Goods. Until the Purchaser has paid all the monies to Seller:
- (the Goods are held by the Buyer as fiduciary bailee of Seller;
- the Buyer must store the Goods separately and so that they are readily identifiable as the property of Seller;
- the Buyer must keep the Goods in good and merchantable condition and fully insure the Goods against loss or damage however caused;
- the Buyer must not sell the Goods except with the prior written consent of Seller or in the ordinary course of the Buyer’s business, provided that any such sale is at arms length terms and on market terms;
- the Buyer must not create any encumbrance over the Goods which is inconsistent with Seller’s title and ownership to the Goods;
- any proceeds of such re-sale, insofar as they relate to the Goods, shall be held on trust for Seller in separate accounts; and, If the Buyer uses the Goods in manufacturing or production and sells the finished product in the ordinary course of business, the Buyer shall hold that part of the proceeds of the finished product relating to the Goods in a separate account in trust for the Supplier. That part will be taken to be of equal value to the amount owing by the Buyer to Seller at the time of receipt of proceeds.
- Delivery and Claims
- Deliveries may be made in one or more parcels and each delivery shall be considered a separate contract. The failure of any delivery shall not affect the contract in relation to other deliveries;
- If Buyer makes default in payment at the time agreed or becomes insolvent subject to external administration the Seller may at its option withhold or cancel further deliveries. If required, Buyer shall pay cash before delivery for any further deliveries;
- The Seller shall be under no liability whatsoever to the Buyer in respect of any claim, whether for breach of contract, negligence or otherwise, which is not made within seven days of delivery of the goods.
- Price Variations / GST
- If Goods and Services Tax is payable in respect of the sale the Seller may increase the goods by an amount equal to the Goods and Service Tax payable;
- The price specified is based on the rate of customs duty at the date of this Contract. A variation of this rate before the date of delivery/payment is for the account of the Buyer unless otherwise agreed;
- Unless otherwise specified trans-shipment or partial shipment shall be permitted;
- Shipment within the times stipulated in the mode agreed in the Contract shall be subject to freight space being available.
- Liability of Seller
- Seller warrants that it has the right to sell the goods and the goods will on delivery be free of any charge, encumbrance or other adverse claim of any description;
- Except as set out in this Contract and to the full extent permitted by Law no other conditions or warranties expressed or implied of merchantability, fitness or suitability of the goods for any particular purpose or otherwise are given by the Seller other than that the goods conform with any tolerances stated and to the description stated in this Contract. The Buyer acknowledges that Seller is selling the goods on the basis of the manufacturer’s specification;
- Where any act of Parliament implies, any term, condition or warranty that may not be excluded or modified such term, condition or warranty shall be deemed to be included in this Contract. However, the liability of Seller for any breach of such term condition or warranty shall be limited, at the option of Seller, to replacing the goods or supplying equivalent goods or repairing the goods or paying the cost thereof.
- The Seller’s liability to the Buyer, whether for any breach of contract, negligence or otherwise, shall not in any circumstance exceed the price of the goods.
- The Seller shall have no liability whatsoever to third parties in respect of the goods or anything done, or not done, by the Seller under or in relation to this contract or the goods whether any such claim is for breach of contract or on any other basis. The Buyer indemnifies the Seller in respect of any claim made against the Seller by any third party in respect of the goods or which is connected in any way with the manufacture or supply of the goods by the Seller whether that claim be for breach of contract, negligence or on any basis whatsoever.
This Contract shall not be assigned or dealt with in any way by Buyer without the prior written consent of Seller.
- Force Majeure
In the event of Seller being unable to observe the terms of this Contract through causes beyond its reasonable control and provided that Seller promptly notifies Buyer of those causes and uses all possible diligence to overcome or remove them as quickly as possible Seller will not be in default under this Agreement unless such failure continues for a period exceeding 45 days. Causes beyond the reasonable control of Seller shall be earthquake, fire, flood, strikes, labour disputes, government intervention, power failures, communication failures, plant failures and other disasters.
- Proper Law
This Contract shall be governed by and construed in accordance with the laws of New South Wales, Australia.
- Dispute Resolution
It is the intention of the Parties, without creating any legal obligation or preventing either Party, in its discretion, commencing legal proceedings, that any dispute or difference arising out of or in relation to this Contract be determined in accordance with the following provisions of this condition.
Any dispute or difference whatsoever arising out of or in connection with this contract shall be and is hereby submitted to arbitration in accordance with, and subject to, the UNCITRAL Arbitration Rules. The appointing and administering body shall be The Institute of Arbitrators and Mediators Australia (“IAMA”). There shall be one arbitrator, the language of the arbitration shall be English and the place of arbitration shall be Sydney, New South Wales, Australia.