Terms & Conditions
1. Standard Conditions of Sale
1.1 These conditions and the accompanying Contract of Sale (collectively, the “Agreement”) constitute the entire agreement between the Buyer and Seller for the sale and purchase of the Product.
1.2 In the event of any conflict between these conditions and the provisions of the Contract of Sale, the Contract of Sale will prevail.
For the purposes of these conditions, unless the context indicates otherwise, the following words have the following meanings:
(a) Buyer means the buyer specified in the Contract of Sale;
(b) Contract of Sale means the contract of sale to which these conditions are annexed, and any appendices thereto;
(c) Day means a business day in the State of Western Australia on which banks are open for business;
(d) GST means Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(e) Parties mean Seller and Buyer;
(f) Port of Discharge means the port specified in the Contract of Sale;
(g) Port of Loading means the port specified in the Contract of Sale;
(h) Product means the product/s forming the subject matter of the Agreement; and
(i) Seller means the seller specified in the Contract of Sale.
3. Trading terms
Save where specifically provided to the contrary, all trade terms used in the Agreement will be governed by and interpreted in accordance with the International Rules for the Interpretation of Trading Terms of the International Chamber of Commerce published in 2010 (“Incoterms 2010”).
4. Delivery and Shipment
4.1 The Product shall be delivered in accordance with the Incoterms 2010 and any other terms stipulated in the Contract of Sale.
4.2 Unless otherwise agreed between the Seller and Buyer, the Buyer is responsible for all port and unloading costs at the Port of Discharge or destination.
4.3 Seller shall use all reasonable endeavours to effect delivery of the Product by the date(s) specified in the Contract of Sale, but under no circumstances will the Seller be liable for any loss accruing to Buyer as a result of late delivery.
4.4 Seller may invoice Buyer for storage, insurance and any other holding charges (“Additional Charges”) incurred by Seller if shipment of Product is delayed by Buyer.
4.5 Where Product is delivered in bulk shipments on FOB or FCA terms:
(i) Seller shall notify the Buyer of its proposed stem date for each delivery of Product no less than 30 days before the proposed stem date or such later date as may be mutually agreed.
(ii) Buyer shall, at its expense, arrange for and secure a vessel for each shipment of Product at least 20 days prior to the proposed stem date.
(iii) Buyer shall notify the Seller of the name of the vessel and estimated date of arrival at Port of Loading at least 14 days prior to arrival.
(iv) Product shall be loaded at the rate of not less than 7,500mt per weather working day, Sundays and public holidays excluded, unless used, in which case the days used shall count in the calculation of laytime.
(v) The vessel shall be spout trimmed, or as otherwise agreed between the parties, and the cost of any trimming which cannot be reasonably performed by the shiploader at the Port of Loading shall be to the Buyer’s account.
(vi) Demurrage costs incurred due to port congestion beyond Seller’s control shall be sole liability of Buyer.
5. Survey of Vessel
5.1 If Buyer’s Vessel is to be used, Seller may arrange for inspection of the holds for cleanliness and protection of Product prior to loading. The inspection will be conducted by a registered independent surveyor or such other inspector acceptable to Buyer and Seller.
5.2 The cost of such surveys shall be borne by Seller. Such surveyor shall be entitled to reject any Buyer's Vessel not found to be suitable to protect the Product from contamination.
5.3 The cost of such rejection and associated cleaning and/or protection shall be for Buyer's account. Furthermore, laytime shall not count until Buyer’s Vessel is suitable in all respects for loading.
5.4 Seller shall not be responsible for contamination of Product which has occurred after Product has been loaded into the holds of Buyer’s Vessel, regardless of whether an inspection has been conducted or whether the holds have been inspected and have been found suitable in all respects.
6. Weights and Assays
6.1 Seller shall provide Buyer with a certificate of weight which shall specify the quantity of the Product as determined using equipment certified by a government approved third party. The loaded weight set out in the certificate of weight shall be conclusive and binding on the Parties.
6.2. In the event of a variation which is greater than 0.5% between the loaded weight and the discharged weight of the relevant shipment of the Product as determined by an independently certified shore scale at the port of discharge, the Seller shall, unless otherwise agreed between the Buyer and the Seller, raise either an additional invoice or a credit note for the value of the weight difference to the extent that it exceeds the acceptable weight variation of plus or minus 0.5%.
6.3 Seller shall provide Buyer with Seller’s certificate of analysis in relation to the Product supplied in each shipment. Subject to the provisions of clause 12 the results set out in the certificate of analysis shall be conclusive and binding on the Parties.
7.1 Seller shall issue and invoice for each delivery of the Product on the date of the bill of lading to Buyer, or as soon as reasonably practicable (“Invoice”).
7.2 Buyer shall pay all Invoices in accordance with the terms of payment of the Contract of Sale (“Due Date”). Buyer must pay the outstanding amount as set out in the invoice in cash by electronic transfer into the account nominated by Seller in the currency nominated in the Invoice, free of any set-off or deduction.
7.3 If payment is not made in full by the Due Date then interest shall accrue on the unpaid amount from the Due Date until payment is made at the rate of 1.5% (one and one half percent) per calendar month, or the highest rate permitted by law if less. The interest shall be included in the Additional Charges.
7.4 Buyer agrees that any Invoices not contested by Buyer in writing within seven (7) Days of the date set forth on the Invoice shall be deemed accepted by Buyer without objection of any kind.
7.5 Seller may require prompt payment or change the payment terms in the event of circumstances which, in the reasonable judgment of Seller, have a material adverse effect on the creditworthiness of Buyer and/or Buyer’s ability to perform its obligations.
7.6 All bank charges relating to transfer of money shall be for Buyer’s account. All costs relating to non-compliance with this Agreement by Buyer, including the cost of collection of payments shall be for Buyer’s account.
7.7 Where the Contract of Sale specifies that payment is to be made by way of letter of credit, Buyer is to open and maintain an irrevocable letter of credit with a first class bank approved by the Seller in writing to cover the full amount of the invoice for each shipment of Product The letter of credit shall:
(i) be opened at least 10 days prior to each relevant shipment;
(ii) be in a form and on terms reasonably acceptable to the Seller; and
(iii) have a validity period of at least 21 days from the bill of lading date to allow for normal delays in the presentation of the relevant documents.
(iv) have a variance of + or -2% of the value of the invoice to allow for normal variances in volume of the Product due to ship loading.
The Buyer will bear the costs associated with any amendments required to be made to the letter of credit to ensure compliance with the above requirements.
8. Tax and Import Duties
8.1 All Australian taxes and duties now and hereafter imposed on the Product during the term of this Agreement shall be for the sole account of the Seller. All other taxes or duties arising with respect to the Product now or hereafter imposed during the term of the Agreement shall be for the sole account of the Buyer.
8.2 If Seller becomes liable to remit GST in respect of any taxable supply made to Buyer under or in connection with this Agreement, Buyer must pay an additional amount to Seller equal to the GST payable by Seller on that supply at the time Buyer first provides any part of the consideration for that taxable supply. However, no additional amount will be payable by Buyer unless and until Seller provides Buyer with a valid tax invoice for that taxable supply.
8.3 If Seller becomes liable to remit any tax in respect of any taxable supply made to Buyer under or in connection with this Agreement, Buyer must pay an additional amount to Seller equal to the liability incurred by the Seller.
Title to the Product passes to Buyer when Seller receives payment in full of all amounts specified in the Invoice(s) corresponding to the Product plus any applicable Additional Charges.
Transfer of risk from Seller to Buyer shall be on delivery in accordance with the relevant Incoterms 2010.
11.1. The Parties must comply with the insurance obligations set out in the relevant Incoterms 2010.
11.2 The Buyer must ensure such policies of insurance provide sufficient coverage so as to cover the value of loss of the entire shipment of Product and are effected and maintained with a reputable and solvent insurer.
12.1 Seller warrants solely to Buyer for a period of fifteen (15) Days after the Product is delivered (the “Warranty Period”) either:
(a) that the Product will materially conform to the specifications set forth in the Contract of Sale (“Guaranteed Specification”); or
(b) if no Guaranteed Specification is specified in the Contract of Sale, that the Product will materially conform to the Guaranteed Chemical Analysis set forth in Seller’s General Specification for the Product ( “Limited Warranty”)
12.2 Except for the Limited Warranty set forth in this section, any and all Product is provided to Buyer “as is” with “all faults” and Seller does not make any other warranties and does not make any representations and all warranties, whether express, implied or statutory, including but not limited to any implied warranties of merchantability or fitness for a particular purpose are hereby excluded.
12.3 In the event of a breach of the Limited Warranty, Buyer shall, within the Warranty Period, deliver written notice to Seller accompanied by documentation and the Product samples demonstrating that the Product does not comply with the Limited Warranty and identifying how much of the Product is not in compliance ( “Notice of Defect). Buyer shall be deemed to have fully and finally accepted all of the Product without objection or reservation if a Notice of Defect is not delivered to Seller by Buyer within the Warranty Period and in strict accordance with this Section. In the event of a breach of the Limited Warranty and Buyer timely delivers to Seller a Notice of Defect, Seller shall, at its option:
(a) deliver, free of charge, replacement Product; and / or
(b) refund Buyer the amount actually paid for the defective portion of the Product not replaced by Seller.
12.4 The performance of Seller’s obligations under this section shall be Buyer’s sole and exclusive remedy and constitute Seller’s entire obligation and aggregate liability to Buyer for any breach of the Limited Warranty.
12.5 The limitation on warranties, liability and remedies set forth in this section shall apply even if one or more of them fails of their essential purpose.
13. Limitation of Liability
13.1 Subject to Clause 13.2 the Seller’s maximum liability to Buyer in respect of any claim for loss or damage arising in connection with the supply of Product shall be limited to the price of the Product in respect of which such loss or damage is claimed regardless of the form of action, whether based in contract, tort, strict liability or otherwise.
13.2 In no circumstances shall the Seller be liable for any consequential, special or indirect loss or damage including loss of profit, loss of goodwill, loss of revenue or loss of business opportunity.
13.3 Buyer is a sophisticated purchaser and acknowledges and agrees that the allocation of risks in this Agreement are reflected in the fees and charges for the Product, that higher charges would be made but for the limitation of liability, damages and warranties set forth in this Agreement, and that the allocation of risks under this Agreement is reasonable and appropriate under the circumstances. Each of the provisions of Clauses 13.1, 13.2 shall apply even if any other remedies fail of their essential purpose.
13.4 Where any liability, warranty or damages has been limited in this Agreement including, without limitation, those set forth in Clauses 12.2, 12.3, 12.4, 13.1 and 13.2, such limitation shall have effect to the maximum extent permitted by applicable law. In some jurisdictions, mandatory, statutory legislation does not allow such exclusion of limitation of liability that may entail that the limitations stated herein do not apply to Buyer, either in whole or part.
The Parties choose their respective addresses set out in the Agreement for all purposes arising out of or in connection with this Agreement, at which addresses all processes and notices arising out of or in connection with this Agreement, its breach or termination may validly be served upon or delivered to the Parties.
15. Governing Law
15.1 Unless otherwise expressly stated in the Contract of Sale, this Agreement shall be governed exclusively by and construed in accordance with the laws of the State of Western Australia and the Parties agree to submit to the non-exclusive jurisdiction of the courts of Western Australia.
15.2 Notwithstanding anything else in this Agreement, the United Nations Convention on Contracts for International Sale of Goods adopted at Vienna, Austria on 10th April 1980 shall not apply to this Agreement.
16. Dispute Resolution
16.1 In the event of any dispute, claim, or failure to agree, arising out of or relating to this Agreement, its negotiation, performance, formation, or any breach thereof, the parties shall try to settle that dispute, claim or failure to agree, amicably by negotiation within thirty (30) days of giving notice of the dispute in writing to the other Party. If the Parties to this Agreement cannot resolve the dispute or difference within thirty (30) days then such dispute or difference shall be resolved exclusively by arbitration by a single arbitrator.
16.2 Any arbitration will be conducted in the State of Western Australia and the commercial rules of the International Chamber of Commerce (ICC) applicable to commercial disputes where the Contract of Sale is for shipment.
16.3 All proceedings, decision and findings shall be confidential. The Parties shall be entitled to be legally represented in the arbitration. The arbitration award shall be final and binding upon the Parties. However, the foregoing exclusivity of the arbitration obligations shall not apply to any claims by Seller to collect passed due Invoices that were not timely contested in writing, and any such action may be brought by Seller in any state or federal court having jurisdiction over the Parties. In any dispute arising out of or relating to this Agreement the prevailing party in any court of arbitration proceeding shall receive an award of its reasonable attorneys’ fees, costs and expenses.
17. Force Majeure
17.1 Where a Party is unable, wholly or in party, by reason of a Force Majeure event to carry out any obligation under the Agreement (“Affected Party”) and the Party:
(a) gives the other Party prompt notice of the Force Majeure event with full particulars and, in so far as known, the probable extent to which it will be unable to perform or be delayed in performing that obligation;
(b) states in such notice that it is seeking the benefit of this Clause; and
(c) states what reasonable actions the Affected Party has taken and will take to avoid, remove, and mitigate the effect of the Force Majeure event,
then the obligation is suspended so far as it is affected by the Force Majeure event during the continuance of the Force Majeure event.
17.2 Force Majeure means any event or circumstance not within the reasonable control of the Party affected by it, including;
(a) acts of God, interruptions to transportation, civil commotion, national emergency (whether in fact or law), martial law, fire, flood, cyclone, earthquake, landslide, explosion;
(b) strikes or other labour difficulties;
(c) breakdown of any facilities or essential equipment;
(d) a suspension, shortfall or cut to the fuel, gas, water, power or other energy supply provided by a third party necessary to any of the Seller’s operations or which are related to the Seller’s operations;
(e) unavailability of essential equipment supplies or services, provided that the affected Party has acted in a timely manner in endeavouring to secure them; and
(f) governmental interference or intervention,
and which the Affected Party is not reasonably able to prevent or overcome, or the effects of which the Affected Party is not reasonably able to predict and take measures to avoid, by the exercise of reasonable technical and commercial diligence and prudence.
17.3 If the Force Majeure event exceeds 60 (sixty) Days, either Party may issue the other Party with a Termination Notice designed to effect termination of all or the affected part of the Agreement two (2) Days from the date of the Termination Notice.
Unless otherwise agreed, no amendment or variation of the Contract is valid or binding on a Party unless the variation notice is made in writing and signed by both Parties.
This Agreement is not assignable or transferable by Buyer in whole or in part without prior written consent of Seller. Seller will not unreasonably withhold consent. No assignment shall be effective until the assignee agrees in writing with the other party to be bound by and to perform the obligations of the agreement assigned to it.
20.1 Either Party may terminate this Contract immediately, and without prejudice to its rights accrued before the date of termination, upon the happening of any of the following event:
(a) if the other Party is unable to demonstrate solvency upon request; or
(b) if a receiver, or administrator is appointed.
20.2 If either Party breaches any term of the Agreement the other Party may serve a notice of default (Default Notice) specifying:
(a) either that the breach be remedied within a specified period of not less than twenty (20) Days after service of the Default Notice on the other Party or state that the breach is incapable of remedy; and
(b) state that if the breach is not remedied within the period specified in the Default Notice or is incapable of remedy, then the Party may, by further notice, do one or more of the following:
(i) elect to wholly or partially suspend the Agreement;
(ii) take such action as it deems necessary to cure the breach; or
(iii) terminate the Contract or any part of it with effect from a specified date.
20.3 The Seller may immediately terminate this Agreement if the Buyer breaches Clause 21.1 (Confidentiality) and the Buyer shall have no cause of action against the Seller in the event of such a termination.
21.1 This agreement is considered Confidential Information and may not be disclosed except in accordance with this Agreement, provided that either Party may disclose this Agreement and its terms and conditions to its advisors, lawyers, accountants, related parties, affiliates, business advisors, associates, personnel, investors who are bound by confidentiality provisions equivalent to that set forth herein, or if obligated to do so under applicable law and regulations, provided that such disclosures are only the minimum required to satisfy the applicable law and regulations unless the other Party provides its prior written consent to such disclosure.
21.2 Neither Party shall use the name or trademark ,or any part thereof, of the other party in any advertising publicity endorsement, or disclose any of the terms of this Agreement to any third party without securing the prior written approval of the other Party to this Agreement.
22. Closure of Seller’s Operations
In the event that Seller elects to permanently close any of its mining and/or processing operations which routinely supply Product to Buyer and Seller is unable to meet its sales obligations pursuant to the Agreement, Seller shall inform Buyer in writing within five (5) Days of its decision to close any such facility. Buyer shall keep such information in confidence. Within Seller’s ability to do so, every reasonable effort shall be made to provide Buyer with at least six (6) calendar months notice of such potential closure. In the event of such closure, Seller shall be relieved of all obligations to sell Product hereunder from its mining and/or processing operations so affected at the date of closure without penalty or liability hereunder.
This Clause shall only apply to Contracts of Sale with a term exceeding 90 days in duration.