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Terms and Conditions Of Sale

[In these Conditions the expression Company means AGR Matthey]

1. CONTRACT TERMS AND VARIATION:

The contract arising between the Company and the Customer in respect of goods or services to be supplied by the Company shall be upon and subject to these Conditions. No terms or conditions contained in any order by the Customer or any correspondence or other document communicated in written or electronic form shall form part of the contract except insofar as the same are expressed in any document either written or electronic signed by or on behalf of the Company. No variation of these Conditions shall have any effect unless in writing and signed by or on behalf of the Company. Acceptance of an Order Acknowledgement by the Customer constitutes the Customer's acceptance of these Conditions and in the absence of acknowledgement the delivery of the goods and acceptance of such delivery by the Customer shall constitute a binding contract on and subject to these Conditions.

2. QUOTATIONS AND ORDERS:

Quotations given and orders accepted are subject to the following conditions

No binding contract shall exist until the Customer's order has been accepted by the Company.
Unless otherwise agreed in writing, quotations given and orders accepted are based on the Company's rates and costs as at the date of quotation of metals, materials, transport, labour and other costs.
The Company may vary prices quoted to reflect increases in the Company's cost of supply, production or delivery of the goods (including any change in metal market prices, duties and exchange rates).
Unless otherwise stated, freight and insurance will also be reimbursed by the Customer at rates ruling on date of dispatch.
An alteration in quantity, sizes, specification or delivery may also necessitate price variation.
No order may be suspended, cancelled or amended without the Company's agreement in writing and in that event the Customer must reimburse the Company for all costs incurred by the Company including, but not restricted to, purchases, stocks, work in progress, labour costs or unrecovered overheads consequent upon the suspension, cancellation or amendment of any order accepted by the Company.
Orders are accepted subject to the Company's minimum order conditions and manufacturing limitations specified for various items.
All prices quoted and invoiced by the Company are strictly net.
Unless otherwise agreed, there will be a minimum charge for any one order as nominated by the Company from time to time.

3. TAXES:

"GST" means any tax in the nature of a tax on, or on the supply of goods, real property, services or any other thing (or similar tax) levied, imposed or assessed by the Commonwealth of Australia or any State or territory of Australia, which may operate at any time during the term of this Agreement other than stamp duty, interest, fine, penalty, fee imposed on or in respect of the above - ? or specifically tie legislation.

The supply of goods and services by the company may be subject to GST. Prices quoted do not include GST.
If GST is payable in respect of a supply, then the amount payable in respect of the supply will be the price quoted by the Company or stated in the Order Acknowledgment, as the case may be plus an amount equal to the amount of GST payable.
If GST is payable in respect of the supply, then the Company will provide a tax invoice or adjustment note if the amount of the supply is in excess of the deminimis amount set by the Australian Taxation Office or other documentation containing specified information as required under GST law to enable or assist the customer to claim any credit, set-off, refund or rebate in respect of GST.
The Company may vary or adjust at any time all or any prices quoted to reflect an amount equal to any sales tax, consumption, retail or value-added or like tax, duty or charge payable by the company which may be levied on the supply for sale of goods and services or increased, whether by legislation or interpretation of the law or of the Australian Taxation Office, after the date of the quotation.
Any customs duties or other charges, fines or assessments whatsoever levied on the goods will be met by the Customer.

4. QUANTITIES:

The Company will use its best endeavours to supply the exact quantities ordered but the supply of a quantity within five (5%) percent of the ordered goods shall be accepted by the Customer as compliance with the Customer's order subject to a pro rata increase or reduction in the price to be paid for the goods.

5. DESPATCH DATES:

Although the Company will use its best endeavours to meet despatch forecasts, despatch dates given are estimates only and the Company shall not be liable in any circumstances for loss whether direct or consequential from delays in dispatch.

6. SEPARATE DELIVERIES:

For so long as payment for any delivery has become due and is unpaid, the Company shall not (without prejudice to its other rights hereunder) be liable pending payment to make any further delivery pursuant to the contract.

7. WARRANTY:

The Company warrants that goods of the Company's manufacture supplied under this contract shall be free from defective workmanship or material and shall conform to such written specifications that have been expressly accepted by the Company and shall, if precious metals, conform to standard levels of purity. [It is a term of this warranty that the Customer notify the Company within seven (7) days of receipt of goods of any claim that the goods have been defectively manufactured or processed and the Company shall then be entitled to require the Customer to return the goods for examination by the Company. The Company shall refund to the Customer "Carriage Paid" costs.]
The warranty is subject to the goods sold or supplied not being tampered with or subject to improper treatment.
Equipment or materials not of the Company's manufacture are sold only with such warranty as the manufacturer has given to the Company and as the Company may be able to enforce, such items not being warranted by the Company in any way.
Where goods are sold for use in combination with other equipment or materials this warranty is limited to the goods sold and not to any combination with other equipment or materials.
The warranty is in addition to the Customer's statutory rights, but it is a term of the Conditions that to the full extent permitted by law, all conditions, warranties, undertakings or representations, express or implied by law are excluded. To the extent to which liability cannot be excluded, the liability of the Company is limited, at the Company's option and where the law permits, to repair or replacement of any defective goods or payment of the cost of repair or replacement.
Once the Company has replaced defective goods or paid the cost of them, any goods returned to the Company shall become the property of the Company.
No claim will be accepted by the Company for labour or other expenditure incurred by the Customer (except to the extent required by law).
The Company shall not be liable for any consequential loss suffered by the Customer consequent upon the supply of defective or non-conforming goods.

8. PAYMENTS:

Unless otherwise stipulated payment shall be net cash payable by the end of the month following the date of invoice.
If any sum remains unpaid after the end of such month the Customer will pay interest at the rate of 2.0% above prime lending rate published on the first day of the month by Westpac Banking Corporation from the due date for payment per month on the sum unpaid until payment. Interest shall be paid prior to the end of the month in which invoiced.
The charging or payment of interest shall be without prejudice to all other rights and remedies the Company may have to recover any amount due for goods sold or agreed to be sold or services rendered or agreed to be rendered by the Company.
All monies due to the Company under the Contract shall be paid by the Customer as provided in the Contract notwithstanding any claim whatsoever the Customer may wish to take against the Company.
If, at any time, any payment by the Customer is overdue, the whole amount of all invoices then outstanding shall become immediately due and payable together with any interest and the costs of collection of any monies then due and payable including but not exclusively fees of any mercantile agent or solicitor engaged by the Company shall be recoverable in full against the Customer.
The Company reserves the right to vary the terms of payment and total value of credit allowed at any time and to require payment in cash in full prior to delivery should the credit worthiness of the Customer, at any time become, in the Company's opinion, unsatisfactory.

9. RETENTION OF TITLE:

The Company and Customer agree that the ownership of the goods delivered by the Company to the Customer is only transferred to the Customer when the Customer has paid all sums owing to the Company whether under this or any other contract.
Where the Company has not been paid in the manner specified in the last preceding sub-clause and the Company delivers the goods to the Customer, then, until disposed of by the Customer in accordance with the provisions of this clause, the Customer agrees with the Company to keep the goods as a fiduciary for the Company and, if required, store the goods in a manner that clearly shows the ownership of the goods by the Company.
Notwithstanding the provisions of the last two preceding sub-clauses, the Customer may sell the goods to a third party in the course of business and deliver them to that party subject to:

where the Customer is paid by that party, the Customer holds the whole of the proceeds of sale on trust for the Company; and
where the Customer is not paid by that party, the Customer agrees at the option of the Company, to assign the claim against that party to the Company upon the Company giving the Customer notice in writing to that effect.

For the purpose of giving effect to and perfecting.the agreement specified in paragraph (ii) of the last preceding sub-clause, the Customer irrevocably appoints the Company as its Attorney.
Where.

the Customer makes a new object from the goods, whether finished or not;
the Customer mixes the goods with other goods; or
the goods become part of other goods;
the Customer agrees with the Company that the ownership of the new object or other goods immediately passes to the Company; and
until payment of all sums owing to the Company whether under this or any other contract to hold them as a fiduciary for the Company.

For the purposes of removing doubt, the ownership of the new object or other goods passes to the Company at the beginning of the single operation or event by which the goods are converted into a new object, is mixed or becomes a part of other goods (called "the New Goods").
Where the Company has not been paid and the goods have been incorporated into New Goods the Customer agrees with the Company to keep the New Goods as a fiduciary for the Company and, if required by the Company to store the New Goods in a manner that clearly shows the ownership of the goods by the Company.
The parties agree that the provisions of this clause apply notwithstanding an agreement, whether subsequent to this agreement or not, between the parties under which the Company gives the Customer credit.
The Customer shall not pledge or in any way charge by way of security for any indebtness any of the goods which are the property of the Company. Without prejudice to the other rights of the Company, if the Customer does pledge or charge for goods, all sums owing by the Customer to the Company shall forthwith become due and payable.

10. PROPERTY RISK/TRANSIT:

Notwithstanding Clause 9, goods supplied by the Company shall be at the sole risk of the Customer from the time at which they are delivered to the Customer or carrier at the agreed place of delivery (whether the carriage is arranged or paid for by the Company or the Customer).
The Company shall not in any circumstances be liable for loss of or damage to goods in transit to the Customer unless:

The Company has agreed to deliver the goods and the loss of or damage occurs before the goods arrive at the agreed place of delivery; and
Any damage or shortage is reported in writing to the Company and the carrier within seven days alter delivery; and
In the case of a total loss, the Customer gives written notice to the Company of the non-arrival of the goods within a reasonable period (not exceeding two weeks) after receipt of the Company's invoice.
Goods sold by the Customer and returned by the Customer to the Company shall be at the sole risk of the Customer until such goods have come into custody of the Company at the premises of the Company where (having regard to the nature of the goods and the reason for their return) the goods will be unpacked and/or inspected. This paragraph shall apply notwithstanding that the goods shall come into the possession or custody of the Company at some earlier time, whether by collection or otherwise.

11. LIEN AND SET OFF:

Without prejudice to any other remedies the Company may have it shall in respect of unpaid debts due to it from the Customer have a lien on all goods or property of the Customer in the Company's possession (whether worked on or not) and it shall be entitled and is hereby authorised on the expiration of fourteen (14) days notice in writing to the Customer to dispose of such goods or property as the Company thinks fit and to apply any proceeds received towards such debts. The Company may also at any time without notice to the Customer set off any liability of the Customer to the Company against any liability of the Company to the Customer whether the liability of the Customer or the Company shall be actual or contingent primary or collateral or joint and several and whether expressed as a liability to pay money or a liability to delivery or transfer precious metal or goods.

12. NO ASSIGNMENT:

No contract entered into by the Customer with the Company and no liability of the Company to transfer or deliver metal to the Customer shall be assigned by the Customer without the written consent of the Company which the Company may give or withhold in its absolute discretion.

13. CANCELLATION BY THE COMPANY:

The Company shall be entitled to cancel an order accepted by the Company by a written notice to the Customer and without prejudice to the recovery of any costs and expenses incurred by it, if:

the Customer shall be become bankrupt or insolvent or being a company go into liquidation or pass a resolution for winding up or have a partition presented against it for its winding up;
a distress or execution is levied or enforced upon any of the property of the Customer and is not paid out or discharged within fourteen days;
an encumbrancer takes possession or a receiver is appointed of the undertaking of the Customer or any of its property; or
if the Customer stops payment or ceases or threatens to cease to carry on his business or pay his debts as and when they fall due; or
the provisions of clause 17 apply.

14. TOOLS:

Unless otherwise agreed by the Company in writing, all tools, dies, patterns and other items made by or for the Company for the execution of the Customer's orders shall remain the property of the Company notwithstanding any charge made to the Customer in respect thereof.

15. PATENTS:

The Customer shall not seek contribution or reimbursement from the Company for any claims against the Customer for infringement of any patent or other intellectual property rights in the use, resale or offering for resale of the goods.

16. FORCE MAJEURE:

In the event of the manufacture or delivery of the goods being prevented, interrupted, or delayed by any cause whatsoever beyond the control of the Company including, but not limited to, strikes, raw material shortages, accidents or breakdown of plant machinery or by lockout by the Company of its own employees the Company shall have the option, without incurring liability to the Customer, either to suspend delivery or at the discretion of the Company, according to the nature and extent of such event, cancel the order.

During any period of suspension of delivery the Customer may purchase elsewhere at its own costs and risk such quantities of alternate goods as may be necessary to cover its requirements during such period in substitution for the goods not delivered by the Company.
The Customer shall not seek contribution or reimbursement from the Company in any of the circumstances described in this clause.

17. PROPER LAW:

The contract shall be governed by the laws of the State of Victoria and Australia and the Company and the Customer shall submit to the non-exclusive jurisdiction of the courts exercising State or Federal jurisdiction in that State.

18. SEVERANCE:

[Should any part of the Conditions be held to be void or unlawful, these Conditions shall be read and enforced as if the void or unlawful provisions had been deleted.]

19. CREDIT INFORMATION:

The Customer irrevocably authorises the Company, its servants and agents to make such enquiries as it deems necessary to investigate the credit worthiness of the Customer from time to time including (inter alia) the making of enquiries with persons nominated as trade references, the Bankers of the Customer, any other credit provider or a credit reporting agency (hereinafter called "the information sources"). The Customer authorises the information sources to disclose to the Company such information concerning the Customer which is within their possession and which is required by the Company to the fullest extent permitted by the Privacy Act [1988] and other relevant laws.

The Customer agrees that the information provided on any credit application signed by it concerning the Customer may be disclosed to a credit reporting agency or any other interested person to the fullest extent permitted by the Privacy Act '1988' and other relevant laws.