Interpretation and Definitions:
“Seller” means NMT Electrodes (Australia) Pty Ltd (ACN 161 657 763)
“Purchaser” means any person or persons, company, or business entity, to whom the Seller sells or supplies any of its products, goods, or services.
“either Party” means either the Seller or the Purchaser.
“both Parties” means the Seller and the Purchaser.
“Products” means any products, goods, or services (including any instalment of the Product or parts for it) which the Seller has been asked by the Purchaser to supply in accordance with a signed, written quotation or purchase order.
“Product Specification” means the product specification provided either by the Seller or the Purchaser.
“Quotation” means that written quotation provided and executed by the Seller as an offer for the sale of the Product to, and purchase by, the Purchaser and which Quotation will always exclude Australian GST.
“Accepted Quotation” means the Quotation which has been duly executed by the Purchaser and, having been executed by the Seller, now constitutes the Contract of Sale between both Parties,
“Valid Purchase Order” means a purchase order issued by the Purchaser to the Seller, supplied in writing, email, or any other suitable media and which Valid Purchase Order contains sufficient detail to be accepted by the Seller as to constitute a Contract of Sale between the Parties.
“Contract of Sale” means either an Accepted Quotation or Valid Purchase Order.
“Commercial Invoice” means the commercial invoice provided by the Seller to the Purchaser in respect of the purchase and sale of the Product as detailed upon the Contract of Sale,
“Purchase Price” means the total ex-works, purchase and sale price as reflected upon the Commercial Invoice.
“Nominated Bank Account” means the Seller’s Australian Bank Account.
“these Terms and Conditions” means all the terms and conditions set out in these Standard Conditions of Purchase and Sale, together with those as set out on the Contract of Sale and, unless the context otherwise requires, any additional special terms and conditions agreed to in writing by both Parties.
“in Writing” means electronic mail, telex, cable, facsimile transmission, and any other comparable means of written communication.
“Authorised Representative” means the duly authorised signatory of either the Seller or the Purchaser.
“Warranty” means any Product-Specific Warranty issued in respect of the Product by the Seller to the Purchaser.
Words imparting the singular include the plural and vice-versa.
a) The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation.
b) These Terms and Conditions will apply to the sale and purchase of the Products as detailed in the Contract of Sale.
c) Such Contract of Sale will include all pertinent details, including, but not necessarily limited to, the Seller, the Purchaser, Total Purchase Price, Currency and Payment Terms, Seller Bank Account, Shipping and Delivery information, Product, Quantity, Weight, Unit and Validity.
d) All drawings, specifications and product details supplied by the Seller remain the property of the Seller and do not form part of the Sale Agreement.
e) No variation to the Quotation, Product Specification, Contract of Sale, Commercial Invoice, or these Terms and Conditions, shall be binding unless agreed to and confirmed in Writing by both Parties.
f) No Quotation signed by the Purchaser can be accepted by the Seller unless and until it has first been signed by the Seller’s Authorised Representative.
g) The Seller reserves the right to require the Purchaser’s Authorised Representative to provide documentary evidence of his/her purchasing authority.
2) Purchase Price
a) The Purchase Price of the Products will be as set out in the Contract of Sale and reflected on the Commercial Invoice.
b) Unless otherwise agreed, the Purchase Price will be in Australian Dollars and inclusive of Australian GST (Goods and Services Tax).
c) The Seller shall sell to the Purchaser, and the Purchaser shall purchase from the Seller, the Products as described in the Contract of Sale, and in accordance with the express terms and conditions of sale and purchase as set out therein.
d) The Purchaser understands and accepts that all quoted prices will remain valid for 14 (fourteen) days only, or until such earlier acceptance by The Purchaser.
e) The Seller reserves the right, by giving appropriate written notice to the Purchaser at any time prior to delivery, to adjust the Purchase Price of the Products to reflect any unavoidable increase in production cost to the Seller as caused by any factor beyond its direct control.
f) Such factors may, but not necessarily be limited to changes in, or to foreign currency exchange rates, banking or currency regulations, alterations to tariffs and duties, material price, delivery dates and rates, quantities, or specifications for the Product, which has been requested by the Purchaser in Writing, or any delay caused by any instructions from, or failure by the Purchaser to give the Seller adequate information or instructions.
g) Unless the Seller has expressly agreed to deliver the Products to the Purchaser’s premises or alternative, nominated delivery address, the Purchase Price quoted by the Seller is on an ex works basis.
h) Should a change of delivery address be requested in Writing by the Purchaser, the Purchaser shall be liable to pay the Seller’s additional charges for transport, packaging, and insurance.
i) The Seller only accepts payments from the Purchaser made by Electronic Funds Transfer into its Nominated Bank Account.
3) Products’ Specification
a) If the Products are to be manufactured, or any process is to be applied to the Products by the Seller in accordance with a specification submitted by the Purchaser, then the Purchaser shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights or any other person which results from the Seller’s use of the Purchaser’s specification.
b) The Purchaser shall be responsible for ensuring the accuracy of its own product specification or specifications submitted to the Seller, and for providing all necessary technical information relating to that product to enable the Seller to manufacture and deliver the Products to the Purchaser in accordance with the Quotation.
c) The Seller reserves the right to make any changes to the specification of the Products which are required to conform with any applicable statutory or regulatory requirements or, where the Products are to be supplied to the Seller’s own specification, which do not materially affect its quality or performance.
d) Only an Authorised Representative of the Seller is permitted to make representations concerning the Product to the Purchaser and all such representations must be in Writing. The Purchaser hereby acknowledges that it will not rely on any representations which are not so confirmed.
e) Any advice or recommendation given by the Seller’s employees or agents to the Purchaser or its own employees or agents as to the storage, application or use of the Products which has not been confirmed In Writing by the Seller, is followed, or acted upon entirely at the Purchaser’s own risk, and accordingly the Seller shall not be held liable for any inconvenience or loss resulting from such advice or recommendation.
4) Terms of Payment
a) Subject to any Credit Term limit already agreed to and in place between both Parties, the Terms of Payment shall be as set out on the Commercial Invoice.
b) Where the Products are to be supplied for export from Australia, pre-payment of either part of, or all the amount due to the Seller, as negotiated and recorded on the Commercial Invoice, shall be made prior to despatch.
c) Should the Purchaser fail to make any payment by due date then, without prejudice to any other rights or remedies available to it, the Seller shall be entitled to:
(i) Cancel the Contract of Sale and/or suspend any further deliveries of Products to the Purchaser.
(ii) Appropriate any payment already made by the Purchaser to such other Product supplied under any other Contract of Sale, as the Seller in its sole but reasonable discretion may think fit.
(iii) Charge the Purchaser penalty interest on any unpaid amount, at the rate of one per cent (1%) per month over and above the overdraft rate applied from time to time by the Seller’s Bankers, Messrs Westpac Limited, calculated from the date payment was due until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
5) Collection or Delivery
a) The Seller will arrange for collection or delivery of the Products at the address specified in the Contract of Sale.
b) Collection from the Seller’s premises shall be during factory opening hours and only after the Seller has notified the Purchaser that the Products are ready for collection.
c) For the avoidance of doubt, factory opening hours are 0800-1600 hours, Monday to Friday, excluding local public or bank holidays.
d) Delivery of the Products shall be to the Delivery Address as stated on the Contract of Sale.
e) All dates quoted for either collection or delivery of the Products are approximate only and the Seller shall not be liable for any delay in collection or delivery of the Products however caused.
f) Unless previously agreed by the Seller in writing, the Products may be offered for collection or delivery by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Purchaser.
g) Where the Products are to be collected or delivered in instalments, failure by the Seller to arrange collection or delivery of one or more of the instalments shall not entitle the Purchaser to cancel the Contract of Sale.
h) If the Purchaser fails to take delivery of the Products or give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Purchaser’s reasonable control or by reason of the Seller’s default) then, without prejudice to any other rights or remedies available to it, the Seller may:
(i) Store the Products until actual delivery and charge the Purchaser for all reasonable costs (including insurance) of such required storage; or
(ii) Sell the Products at the best price readily obtainable and, after deducting all reasonable storage and selling expenses, charge the Purchaser for any shortfall below the price under that stated in the Contract of Sale.
6) Insurances, Risk and Ownership of the Products
a) All risk of damage and/or loss regarding the Products, shall pass to the Purchaser:
(i) in the case of the Products to be collected at the Seller’s premises, at the time when the Purchaser or its authorised transport agent collects the Products and signs acceptance thereof.
(ii) in the case of the Products delivered to the Purchaser’s premises or nominated delivery premises, at the time of such delivery or, alternatively, if the Purchaser wrongfully fails to take delivery of the Products, the time when The Seller has tendered delivery of the Product.
b) Notwithstanding the passing of risk in connection with the Products, or any other provision set out in these Terms and Conditions, ownership of the Products together with all other Products for which payment is then due and outstanding, will not pass to the Purchaser until the Seller has received payment, in cash or cleared funds, to settle the outstanding account in full.
c) Should the Purchaser’s account with the Seller remain outstanding, or, more than, any Credit Limit already set, the Purchaser undertakes to hold the Products on a fiduciary basis as the Seller’s bailee and store same safely and securely, insured against all risks for the full Purchase Price, until such time as the Purchaser’s outstanding account is settled in full.
7) General Product Warranty:
a) Subject to the other listed conditions set out in any written Warranty provided by it, the Seller further warrants that the Products will correspond with the Purchaser’s specifications at the time of collection or delivery and be free from defects in material and workmanship for a period of 12 months from the date of its initial use, or 12 months from collection or delivery, whichever is the first to expire.
b) The above general product warranty is provided by the Seller subject to the following, express conditions:
(i) The Seller shall be under no liability in respect of any defect in the Products arising from any drawing, design or specification supplied by the Purchaser.
(ii) The Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s written instructions, general misuse or alteration or repair of the Products without the Seller’s approval in Writing.
(iii) The Seller shall be under no liability under the above warranty (or any other warranty condition, or guarantee) if the Purchase Price of the Product has not been paid in full by due date.
(iv) The above warranty does not extend to parts, materials or equipment not manufactured by the Seller.
c) Any claim by the Purchaser which is based on any defect in the quality or condition of the Products or the Seller’s failure to correspond with the Products’ Specification shall (whether, or not delivery is refused by the Purchaser) be notified to the Seller in writing within 7 days from the date of collection or delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure.
d) The Seller will only accept returned Products if the Seller, in its sole but reasonable discretion is satisfied that the Products are defective and, on this basis, the Seller reserves the right to repair, replace or refund the Purchase Price of the Products.
e) If delivery is not refused, and the Purchaser does not notify the Seller accordingly, the Purchaser shall not be entitled to reject the Products and the Seller shall have no liability for such defect or failure, and the Purchaser shall be bound to pay the Purchase Price in full as if the Products have been delivered in accordance with the Sale Agreement.
f) The Purchaser must notify the Seller in writing, full details of any defect, damage, or shortfall in the Products within 7 (seven) days of collection or delivery.
8) Force Majeure:
Neither Party shall be held liable for any failure or delay in performing its obligations where such failure or delay results from an event or circumstance that is beyond its reasonable control. Such an event or circumstance may include but not necessarily be limited to:
a) An act of God, explosion, fire, flood, storms, earthquakes, epidemic or accident,
b) War or threat of war, terrorism, sabotage, insurrection, civil disturbance, or requisition,
c) Any act, restriction, regulation, by-law, prohibition, or measure of any kind on the part of a governmental, whether that be a national or local authority,
d) Import or export regulation or embargo,
e) Strike, lockout, or other industrial action or trade dispute (whether involving employees of the Seller, the Purchaser or of a third party),
f) Difficulties in obtaining raw materials, labour, fuel, parts, or machinery,
g) Power failure or breakdown in machinery.
a) The Seller reserves the right to cancel the Contract of Sale in the event of:
(i) A material breach by the Purchaser of its obligations under these Terms and Conditions or,
(ii) The Purchaser has become or about to become the subject of a bankruptcy order or commits any act of insolvency.
b) Otherwise, no cancellation of the Contract of Sale may be affected by the Purchaser except through agreement by both Parties in Writing and on terms acceptable to the Seller, in its sole but reasonable discretion.
c) The terms of such cancellation shall, inter alia, include the Purchaser indemnifying the Seller in full against all its losses, including but not necessarily limited to loss of profit, labour costs and materials used, damages, charges and other proven expenses incurred by the Seller, due to such cancellation.
10) Limitation of Seller’s Liability:
The Seller’s total liability under these Terms and Conditions, whether of a contractual nature or not, will, in any event, not exceed the total Purchase Price paid by the Purchaser for the Products.
11) Governing Laws and Jurisdiction:
a) The Contract of Sale together with these Terms and Conditions and any dispute arising therefrom, whether of a contractual or non-contractual nature, or any subsequent claim, shall be governed by, and in accordance with, the federal laws of Australia.
b) Both Parties hereby consent to the jurisdiction of the Courts of Perth, Western Australia in connection with any such dispute or claim.