Conditions of Sale
1 In this contract
the "Goods" means the physical things sold under this contract, the "Transfer Time" means the time when property in and title to in the Goods passes to Buyer, words importing the singular import the plural and vice versa, words importing one gender import the other genders and no provision limits the generality of any other provision.
2 (a) This contract shall include these conditions of sale and the terms and conditions appearing on the reverse of this page and all attached pages.
(b) A provision typed on the face of this document prevails over any inconsistent term in these clauses 1-29,
(c) Where an expression used in this contract is unclear then the expression shall be given the meaning that gives this contract business efficacy, having regard to all of the terms of this contract. If there is dispute between the Seller and the Buyer about the meaning of an expression that gives the contract business efficacy, then that expression shall have meaning the Seller (acting reasonably) shall determine and advise to the Buyer of.
(d) Subject to any term which is implied by law and not legally able to be excluded not being excluding:
(i) the front and reverse sides of this document express the complete and final understanding of Buyer and Seller with respect to the subject matter of this contract;
(ii) there are no terms or specifications other than those expressly contained on either the front or reverse side of this document; and
(iii) if there has been any prior course of dealing or if there is any usage of trade and in either case it is not expressly set out in this document then it will not form part of or affect this contract in any way.
(e) The terms of this contract prevail over and supersede any inconsistent correspondence, tenders and quotations, verbal exchanges and other communications (including Buyer's order forms or confirmations) for all purposes relating to its subject matter. This is so regardless of whether the inconsistency:
(i) arose before or after this contract; and
(ii) even if the inconsistency:
(1) purports to override, exclude or supersede all or any part of this contract; or
(2) contains a specific and prominent objection to this clause 2.
(f) No alteration or modification to this contract will be valid unless made in writing signed by both parties to this contract.
(g) Buyer warrants and represents to Seller that in entering in to this contract Buyer does not rely on any condition, warranty or representation which is not:
(i) expressly stated on the front or reverse of this document; or
(ii) implied by law and not legally able to be excluded or negatived.
3 (a) The prices specified on the face of this document are based on freight and shipping cost, and where appropriate insurance costs and duty, applicable at the date of this contract. Any increase or decrease of those costs or duty in effect as at the time of shipment will be for Buyer's account.
(b) Prices are exclusive of taxes (including without limitation any value added tax, sales tax, goods and services tax or the like) port rates, customs duties, licence fees and like charges, all of which will be to Buyer's account.
(c) Buyer will reimburse Seller on demand for all sums which Seller expends for Buyer's account.
(d) Buyer will pay for inspection of the materials, if any.
(e) All collection and bank charges, stamps, stamp duties and fees are to Buyer's account.
4 (a) If the face of this document states that the sale is under C & F or CIF terms then tender to Buyer of the specified shipping documents will constitute full and final delivery.
(b) The specifications of any applicable letter of credit will for all purposes remain subordinate to the terms of this contract.
(c) If payment is not made to Seller pursuant to an applicable letter of credit, then without prejudice to Seller's other rights, Seller may present to Buyer the documents the presentation of which was required by the letter of credit and Buyer will be obliged to accept delivery of them and pay for them, provided the documents comply with the terms of this contract.
(d) If iron or steel products are sold then Buyer will accept as "clean" documents any bill of lading, dock receipt, forwarder's receipt etc containing terms disclaiming liability for damages in relation to rust or surface deterioration or lack or inadequacy of packing, or any two or more of those matters.
(e) If the terms as to delivery, carriage or shipment set out on the reverse of this document oblige Seller to tender to Buyer a bill of lading or an insurance policy relating to the Goods, or both, then Seller may tender a combined transport bill of lading or an insurance certificate (as the case may be) and Buyer will not object to it or them.
5 Buyer will be solely responsible for obtaining any import permits or licences for the Goods.
6 Seller will not be responsible for:
(a) the surface condition of bare, uncoated metal products whether or not shipped with protective covering, nor
(b) providing protective covering for such metal products.
7 Seller may:
(a) select the carrier, routing and receiving dock or terminal, and
(b) ship or deliver in advance of specified dates and make partial deliveries, and
in either case payments in respect of such shipments and deliveries will become due accordingly.
8 (a) Delivery dates quoted by Seller and set out on the face of this document will:
(i) be estimates only, and
(ii) not impose contractual obligations on Seller, and
(iii) in no event be of the essence of the contract.
(b) Seller will not be liable for loss, damage, detention or delay due to any cause of any kind beyond Seller's reasonable control.
(c) Without limiting that generality, Seller will not be liable for loss, damage, detention or delay due to:
(i) industrial disputes affecting Seller's or the manufacturer's own labour force, or
(ii) inability to obtain labour materials or Goods from usual sources in circumstances which could not reasonably have been foreseen.
(d) If delay occurs then the date for delivery will be adjusted by such length of time as may be necessary properly to reflect the nature and extent of the delay.
(e) Buyer's acceptance of the Goods, in whole or part, after a delay will constitute a full waiver of any claims for delay.
9 (a) (i) If through circumstances beyond Seller's reasonable control delivery cannot be made at the place stipulated in this contract then Seller will be deemed to have fulfilled its obligations by delivering the Goods at the nearest practicable place.
(ii) Payment will be due from Buyer to Seller accordingly.
(b) If Buyer:
(i) fails to take delivery of the Goods, or
(ii) refuses to accept shipment, or
(iii) fails to give Seller adequate delivery instructions then, without prejudice to any other right or remedy available to Seller, Seller may:
(1) store the Goods until actual delivery and charge Buyer for all expenses (including insurance) for storage, or
(2) sell the Goods at the best price readily obtainable and after deducting all reasonable storage and selling expenses charge Buyer for any shortfall below the contract price.
10 (a) The Goods are supplied only to the description, if any, stated on the reverse side of this document.
(b) Except for:
(i) warranty of title, and
(ii) warranties expressly set out in this contract, and
(iii) warranties which cannot be excluded under the law applicable to this contract, all conditions, warranties, representations and other terms of any kind express or implied and statutory or otherwise, including all implied warranties and conditions relating to description, merchantability, quality or fitness for a particular purpose or end use, are now excluded.
11 (a) It will be the responsibility of Buyer to inspect the Goods the subject of this contract immediately after receipt at the destination shown on the reverse of this document.
(b) Seller will not be liable for any claims by Buyer, and Buyer will be deemed to have accepted the Goods and to have waived all claims against the Seller with respect to the Goods, unless Buyer:
(i) inspects the Goods:
(1) within ten days of receipt, or
(2) before use,
whichever is earlier, and
(ii) sends written notice of any claim, specifying the nature and precise extend of the claim within twenty days of receipt, and
(iii) Buyer affords Seller an opportunity to inspect the Goods in their original, as delivered, condition.
12 (a) If not more than 70% of a shipment of Goods is found not to comply with the specifications of this contract then Buyer will accept that part of the shipment of Goods which complies with those specifications.
(b) If there is any dispute as to whether the Goods comply or are damaged then Seller may designate an appropriately qualified independent testing laboratory or expert in order to determine the matter in dispute.
(c) The determination of the independent testing laboratory or expert will bind both parties and the arbitrators.
(d) All costs of this testing or use of Seller's designated laboratory or expert will be to Buyer's account unless the determination establishes that the Goods do not comply with the specifications of this contract.
(e) Seller will have the right to require that:
(i) the testing laboratory or expert pick a specified number of samples, and
(ii) the samples be picked from different parts - top, middle or bottom - of the shipment of Goods.
CONDITIONS OF SALE
13 (a) If the testing laboratory or expert determines that the Goods do not comply with the specifications of this contract then Seller's total liability will be limited to the difference (if any) between:
(i) the value of the Goods at the place and time of delivery, and
(ii) the value which the Goods would have had that place and time if the Goods had complied with the specifications of this contract.
(b) Neither the Seller nor its suppliers will be liable to:
(i) Buyer, or
(ii) any successors in interest to Buyer nor any beneficiary or assignee of this contract,
for any consequential, incidental, indirect, special or punitive damages arising out of this contract, or any breach of it, or any defect in, or failure of, the Goods.
(c) Subclause (b) applies whether the claim for damages is based on
or arises from:
(i) loss of use, loss of profits or revenue, interest, lost goodwill, labour expenses, market losses, work stoppage, impairment of other Goods, loss by reason of shutdown or non-operation, increased expense of operation, cost of purchase of replacement of Goods or claims of Buyer or customers of Buyer for production interruption, and
(ii) breach of contract. breach of warranty, negligence, an obligation to indemnify, strict liability or otherwise.
(d) Seller may, at its option, repurchase the non-complying or damaged Goods at the unit price for the same specified in this contract in full satisfaction of any claim.
14 Risk of damage to or loss of the Goods will pass to Buyer:
(a) if the face of this document states that the sale is under C & F, CIF, C & F duty paid, CIF duty paid FIS, FOB Buyer's premises or similar term, at the time applying under a sale of the particular nature; or
(b) otherwise, on the earliest to occur of the signing of this contract, the Seller's allocation of particular Goods as those to be delivered under this contract and delivery of the Goods to the Buyer.
15 (a) Notwithstanding delivery and the passing of risk in the Goods, or any other provision of this contract, the property in and title to the Goods will not pass to Buyer until Seller has been paid in full the price of:
(i) the Goods, and
(ii) all other goods which Seller has agreed to sell to Buyer for which payment has become due.
(b) Until the Transfer Time, Buyer will as Seller's fiduciary agent:
(i) hold the Goods as bailee, and
(ii) keep the Goods separate from those of Buyer and third parties, and identified as Seller's property, and
(iii) properly store, protect and insure the Goods.
(c) Prior to the Transfer Time, Buyer:
(i) will be entitled to resell or use the Goods in the ordinary course of its business;
(ii) must account to Seller for the proceeds of sale or other disposal or use of the Goods, whether tangible or intangible, including insurance proceeds; all of which Buyer will held as agent of seller and
(iii) must keep all such proceeds separate from any money or property of Buyer and third parties and. in the case of tangible proceeds, properly stored, protected and insured.
(d) (i) At any time up to the Transfer Time Seller may require Buyer to deliver the up to Seller any or all Goods which exist and which have not been resold.
(ii) If Buyer fails to forthwith deliver up Goods in accordance with paragraph (i), then Seller may (including by Seller's agents and representatives) enter on any premises of Buyer or any third party where the Goods are located and repossess the Goods.
(e) (i) Buyer is not entitled to, and must not, pledge the Goods or in any way charge them by way of security for any indebtedness before the Transfer Time.
(ii) If Buyer breaches paragraph (i), then all money which Buyer owes Seller will without prejudice to any other right or remedy of Seller immediately become due and payable.
16 (a) Where payment for Goods is due on or prior to delivery of the Goods to Buyer, payment in accordance with the terms for payment will be a condition precedent to delivery by Seller of Goods under this contract or any other contract between the parties.
(b) If Buyer fails to make payment in accordance with the terms for payment or any other conditions of this contract or any other contract between the parties, then Seller may at its option postpone deliveries under this contract or any other contract between the parties.
(c) If in Seller's opinion Buyer's financial condition so warrants, then before delivery of the Goods, Seller may:
(i) limit or cancel Buyer's credit as to time and amount, and
(ii) demand adequate financial assurance, consisting of any or all of:
(1) payment in cash before delivery of the Goods,
(2) payment in advance of amounts Buyer owes Seller on any other obligation or contract, and
(3) guarantees acceptable to Seller of such payments, and
(4) security acceptable to Seller for them.
17 (a) If Buyer breaches this contract then Seller may recover from Buyer actual damages plus the costs and expenses of suit and collection (including complete indemnity for legal fees) which Seller incurs in so doing.
(b) Unless otherwise agreed, past due invoices will be subject, by way of liquidated damages, to late payment charges calculated from the due date for payment until payment in full on a daily basis on the principal sum outstanding at the prime rate from time to time of Seller's principal bankers in New York for the time being plus two percent.
18 (a) Buyer will not be entitled to withhold payment of any sum after it has become due nor to make any deduction from any such sum by reason of any right of set-off or counter claim which Buyer may have or allege or for any other reason whatsoever, whether arising from this contract or any other contract with Seller.
(b) The Buyer specifically waives any right against Seller of set-off or counter claim.
19 (a) Buyer will be deemed to have accepted this contract by signing and returning a copy of it to Seller or by taking any step to affirm this contract.
(b) In the absence of Buyer's signature, Buyer will be bound by all the terms and conditions of this contract from the earlier to occur of:
(i) when Buyer receives and retains this contract without objection for ten days, or
(ii) when Buyer acknowledges receipt of this contract, or
(iii) when Buyer accepts delivery of all or any part of the Goods, or
(iv) when Buyer has otherwise assented to these terms and conditions, whether expressly or by implication or conduct.
(c) If Buyer having indicated acceptance does not return a signed original of this contract to Seller within twenty days from the making of the contract then Seller will have the option to cancel this contract without any liability on its part, by sending to Buyer a notice of cancellation within one hundred and eighty days from the date the contract was issued.
(d) Seller may cancel this contract or revoke any offer to sell the Goods or any materials to Buyer, without liability on its part, at any time before it physically receives the duplicate signed by Buyer.
20 (a) Buyer must commence any action, suit or proceedings of any kind against Seller in relation to this contract, breach or performance of this contract by Seller or the Goods within sixty days of the date when the Goods were shipped.
(b) For the purposes of paragraph (a):
(i) if the sale is C & F, CIF, C & F duty paid or CIF duty paid, then the date when the Goods were shipped shall be the date of the bill of lading; and
(ii) if the sale is FIS, FOB Buyer's premises or similar term of sale, then the date when the Goods were shipped shall be the firstday of delivery to Buyer's premises (subject to clause 14).
(c) If Buyer does not commence such action suit or proceeding against Seller within the period provided for in paragraph (a), then Buyer will be deemed to have waived all rights against Seller in respect of this contract, breach or performance of this contract by Seller or the Goods which are legally able to be waived.
21 (a) Buyer must not assign or transfer this contract without Seller's prior without written consent which Seller may grant or withhold at Seller's discretion.
(b) If Seller consents to an assignment or transfer of this contract, then:
(i) Seller it may require as a condition of such consent that the assignment will be subject to the terms and conditions of this contract, and
(ii) no greater rights or remedies will be available to the assignee or transferee than would be available to Buyer under this contract.
(c) (i) Seller will be at liberty to assign or transfer any of Seller's rights, benefits and obligations in respect of this contract to any of its related corporations.
(ii) An assignment or transfer by Seller pursuant to paragraph (a) can be in whole or in part as Seller thinks fit.
22 (a) All notices and other communications under this contract will be in writing and in the English language originally signed by or on behalf of the party giving the notice. A notice shall be taken as given:
(i) when the originally signed writing is delivered to the addressee; or
(ii) at the time a successful fax transmission of that notice to the addressee completes, provided that originally signed notice is delivered to the addressee within 7 days of that time.
(b) The addresses for notices and other communications will be as set out on the reverse side of this document or such other address or addresses as may from time to time be specified by one party to the other for this purpose.
23 If a court of competent jurisdiction finds any provision of this contract to be invalid or unenforceable then:
(a) the invalid provision will be severable,
(b) the unenforceable provision will not affect the operation of any other provision, and
(c) no such provision will affect the enforceability or validity of that or any other provision in any other jurisdiction.
24 (a) This contract will be governed by and construed in accordance with Singapore law.
(b) Each party agrees to submit to the non-exclusive jurisdiction of the courts of Singapore. Where Goods are delivered to a place in Australia or Buyer is resident or incorporated in Australia, each party also submits to the non-exclusive jurisdiction of the courts of New South Wales.
25 (a) Each party irrevocably agrees that any controversy or claim arising out of this contract or its interpretation, performance or breach may be settled by arbitration under the rules of the Arbitration Act of Singapore at the sole option of the Seller.
(b) Anything to the contrary contained in rules of the Arbitration Act of Singapore notwithstanding, the parties consent that any papers, notices or processes necessary or proper for
(i) the entry of judgment with respect to an award made under that act,
(ii) the institution of any legal action in Singapore including any proceeding related to arbitration, and any appeal in connection with it,
may (in addition to any other lawful method of service) be served on each of them by registered or certified mail addressed to each of them at its his or their respective addresses shown on the reverse side of this document.
(c) In any arbitration proceeding in which an award is made in favour of Seller, Seller will be entitled, in addition to other damages awarded to it, to recover from Buyer all costs and expenses of arbitration including full indemnity for Seller's legal costs.
(d) Any arbitration respecting this contract may he consolidated with any other arbitration proceeding arising from the purchase of the Goods covered by this contract.
(e) Any action or proceedings to confirm or modify the arbitrator's award may be instituted in Singapore.
(f) The arbitrator will make findings of fact and will render an award based on them.
26 (a) If:
(i) Buyer becomes bankrupt or insolvent, or proceedings are commenced under any law relating to bankruptcy or insolvency or for Buyer's reorganisation or other debit adjustment, or
(ii) Buyer defaults in performing any of its obligations to Seller under this or any other agreement between them, or
(iii) Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or being a company goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction while solvent), or
(iv) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of Buyer, or
(v) Buyer ceases, or threatens to cease, to carry on business,
(vi) Seller reasonably apprehends that any of the events above is about to occur in relation to Buyer and notifies Buyer accordingly, then all money which Buyer owes Seller on any account will immediately become due and payable and without limiting its other rights and remedies Seller at its option and without liability to Buyer may do any one or more of the following:
(1) cancel the contract,
(2) terminate any other contract with Buyer,
(3) suspend any further deliveries under the contract, or any other contract with Buyer,
(4) accept Buyer's prior financial assurance that Buyer's obligations will be completely paid and performed.
(5) hold Buyer liable for any unpaid instalments under the contract or any other contract, and for any damage to Seller under that contract or those contracts, and
(6) retain any amounts already paid under this or other contracts as damages to Seller.
(b) If the Goods have been delivered but not paid for then the price will become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
(c) The Buyer will give notice to the Seller of any matter under paragraph (a) within 24 hours of becoming aware of it.
27 (a) The Seller will have the option (but not the obligation) to transfer to the Buyer property in and title to the Goods (or any part of them) notwithstanding that the Goods have not been paid for in full.
(b) The Seller will give notice to the Buyer of the Seller's intention to exercise this option, and may require the Buyer to execute a charge in form and substance acceptable to the Seller over or in relation to the Goods to which property and title are to pass as a result.
(c) The charge may also secure any and all of the Buyer's outstanding payment obligations to the Seller.
(d) The Buyer will execute the charge promptly and before Seller transfers the property and title to the Goods.
28 The Buyer:
(a) must, for so long as it remains legally possible for liability to arise in respect of the Goods or their use or storage, maintain product and general liability insurance:
(i) which provides cover of not less than Singapore $5.000,000 for any one occurrence for all claims for product and general liability howsoever arising by any person in relation to the Goods or their use or storage;
(ii) which covers the Seller (alone or jointly with the Buyer) or, if the Seller has been paid, the Buyer;
(iii) which covers the Seller's liability to the Buyer or to any third party; and
(iv) under which the insurer waives all rights of subrogation against Seller;
(b) must, forthwith upon the Buyer failing to comply with paragraph (a), give notice of the fact to the Seller;
(c) warrants to the Seller that the Buyer will comply with its obligations under paragraphs (a) and (b); and
(d) must indemnify the Seller (in addition to any other remedies which Seller may have) from and against all claims, demands and proceedings brought against the Seller, arising from or in relation to the Goods or their use or storage, in respect of which the Buyer does not have in place a policy of insurance as required by paragraph (a).
29 (a) This clause 29 applies only where Buyer is an individual located in Australia or is a company or registrable Australian body (within the meaning of the Australian Corporations Act 2001),
a corporation sole established under a law of the Commonwealth of Australia or of an Australian State or Territory or a public authority or agency or instrumentality of the Crown in right of the Commonwealth of Australia or of an Australian State or Territory.
(b) In this clause 29:
"Financing Statement", "Financing Change Statement" and "Verification Statement" have the meanings set out in s10 of the PPSA;
"PPSA" means the Personal Property Securities Act, 2009 (C'th of Australia);
"PPSR" means the Personal Property Securities Register,
"Purchase Money Security Interest" (or PMSI) has the meaning set out in s14 of the PPSA;
"Security Agreement" has the meaning set out in s10 of the PPSA; and
"Security Intereit" has the meaning set out in s12 of the PPSA.
(c) Buyer acknowledges and consents to Seller maintaining registration on the PPSR of any Security Interest arising under, or contemplated by, this contract in any manner Seller considers appropriate. Buyer agrees to execute all documents and provide all information and assistance required by Seller to ensure registration and maintenance of any Security Interest, including to ensure that Seller may acquire and maintain any perfected Security Interests relating to the Goods and any proceeds, to register a Financing Statement or Financing Change Statement and to ensure that Seller's position, rights and obligations are maintained notwithstanding (and to the extent permitted by) the PPSA. Notices or documents required or permitted to be given to Seller for the purposes of the PPSA must be given by Buyer in accordance with the PPSA.
(d) Buyer acknowledges that Seller may register a Financing Statement or Financing Change Statement in respect of a Security Interest (including any Purchase Money Security Interest), and waives any right to receive notice of a Verification Statement in relation to any registration in respect of the Goods.
(e) Buyer agrees not to register, or permit or suffer the registration of, a Financing Change Statement in respect of a Security Interest contemplated by this contract, or in favour of a third party, without Seller's prior written consent.
(f) To the extent that Chapter 4 of the PPSA would otherwise apply to any enforcement of a Security Interest arising under or in connection with this contract, and s115(1) of the PPSA allows parties to contract out of provisions of the PPSA, the following provisions of the PPSA will not apply and Buyer agrees that it has no rights under them: s95 (to the extent that it requires Seller to give notices to Buyer); s96; s121(4); s125; s130 (to the extent that it requires Seller to give notices to Buyer); section 132(3)(d); s132(4); s135; s142 and s143.
(g) Unless otherwise agreed in writing signed by the parties and to the extent permitted by the PPSA, both Seller and Buyer agree not to disclose any information contemplated in s275(1) of the PPSA to an interested person, or as requested by an interested person. Buyer agrees to waive any right it may have had under s275(7)(c) of the PPSA to authorise any disclosure of that information.
(h) It is agreed that for the purposes of the PPSA, this contract (and, in particular, the provisions of clauses 15 and 27) creates a Security Interest and is a Security Agreement. For the purpose of s20(2) of the PPSA, the collateral is the Goods, any amounts owing to Buyer in respect of Buyer's sale of any of the Goods and the proceeds of Buyer's sale of any of the Goods received by Buyer (in whatever form Buyer may hold those proceeds from time to time).
(i) Seller may, at its absolute discretion, apply any amounts received pursuant to this contract in any way Seller determines to satisfy any obligations relating to a Security Interest contemplated by this contract.