MULWARRA EXPORT PTY LTD – TERMS & CONDITIONS OF SALE (Terms of Sale)
The following terms shall, unless the context otherwise dictates, have the following meanings:
Consumer means a “consumer” as that term is defined in section 3 of the Australian Consumer Law.
Consumer Contract means a contract for the supply of goods or services to a Consumer.
“Customer” means any person or entity to whom Mulwarra supplies or offers to supply Goods.
“Financing statement” has the meaning given to it by the PPSA
“Goods” means the Goods or services Mulwarra Export Pty Limited supplies subject to the terms & conditions.
“Mulwarra” means Mulwarra Export Pty Limited, ABN # 65 079 120 415, Level 18, Tower A, 821 Pacific Highway, Chatswood NSW 2067.
“PPSA” means the Personal Property Securities Act 2009 (as amended)
“Purchase Order” means an order issued to Mulwarra Export Pty Limited in writing by either facsimile or email using the words “Purchase Order” as a heading and transmitted in one of these fore mentioned acceptable forms of communication.
“The Regulation” means the Personal Property Securities Regulation (as amended)
“Sales Confirmation” means a confirmation issued by Mulwarra titled “Sales Confirmation” that an order has been received and is confirmed.
“Security agreement” has the meaning given to it by the PPSA
“Security interest” has the meaning given to it by the PPSA
“Terms & Conditions” means the terms & conditions of trading set out in this document which shall govern to the exclusion of any other terms & conditions:
1. THESE TERMS TO PREVAIL
These Terms prevail over any terms & conditions set out in the Customers purchase order deviating from or inconsistent with these Terms of Sale notwithstanding any statement by the customer in its order that its terms & conditions shall prevail over these Terms of Sale. Mulwarra reserves the right to amend or add to these terms & conditions at its discretion. Any such alterations will be advised to customers in writing.
2. SECURITY INTEREST IN THE GOODS SUPPLIED
The Customer acknowledges that by agreeing to these terms & conditions:
Constitute a Security Agreement with the purposes of PPSA, and Create a Security Interest in all Goods previously supplied by Mulwarra to the Customer and all Goods that will be supplied in the future by Mulwarra to the Customer.
The Security Interest in the Goods created by this Agreement extends to the proceeds of any dealing with the Goods in accordance with the Act.
The Customer consents to Mulwarra protecting its interest in any goods supplied by Mulwarra and their proceeds by registration under the PPSA, and agrees to do anything reasonably requested by Mulwarra to enable it to do so.
For the purposes of the PSSA (i) the Customer and Mulwarra contract out of each provision which, under section 115(1) of the PSSA, they are permitted to contract out of, and (2) the Customer waives its right to receive each notice which, under section 157(3) of the PSSA, it is permitted to waive.
3. PPSA – AGREEEMENT & ACKNOWLEDGEMENT
The Customer shall promptly do such acts and provide such information as in the opinion of Mulwarra (acting in its absolute discretion) may be necessary or desirable to enable Mulwarra to register a financing statement or financing change statement in relation to security interest on the Personal Property Securities Register or register any other document required to be registered by the Act and Regulation to perfect the Security Interest created by this Agreement with respect to the Goods and any proceeds (as defined in the Act) of the sale of the Goods.
The Customer waives any rights it may have now or in the future to receive a copy of any verification statement in accordance with section 157 of the Act or other confirmation related to the interest created or provided for by, or perfected in the manner contemplated by, this Agreement.
The Customer acknowledges that Mulwarra will register (and as appropriate register a renewal of) the Security Interest created by this Agreement in the Personal Property Securities Register established under the Act.
The Customer will pay to Mulwarra each cost, loss and expense (including legal expenses on a solicitor and own client basis) incurred or sustained by Mulwarra as a result of any default by the Customer under this Agreement or as a result of exercising, protecting or otherwise enforcing its rights under this Agreement, in each case on demand on a full indemnity basis.
4. PASSING OF TITLE
Ownership of the Goods shall not pass to the Customer until the Customer has paid Mulwarra all amounts owing for the particular Goods. Furthermore:
The Customer charges in favour of and grants a Security Interest to Mulwarra in all of the Customer’s right, title and interest in the Customer’s inventory and its proceeds to the extent that such inventory comprises Goods, as security for the payment by the Customer to Mulwarra of:
The purchase price of the goods, and any other moneys owing to Mulwarra from time to time whether in relation to this Agreement or any other agreement with Mulwarra
Notwithstanding the Security Interest in the Goods created by the Customer in favour of Mulwarra , the Customer is authorised by Mulwarra to sell the Goods for full consideration in the ordinary course of its business.
Pursuant to section 123 of the PPSA Mulwarra may take possession of and sell the Goods if the Customer is in default under this Agreement.
5. PURCHASE ORDERS & SALES
Any purchase order for the supply of Goods will not bind Mulwarra until accepted by Mulwarra in writing (“Sales Confirmation” and/or “Proforma Invoice”).
Purchase Orders must (1) be in writing and signed by an authorised Company representative, dated and stamped with the Customer’s company stamp (2) include the item price, item code/number, and description, number of units/kg ordered, a value of the item ordered (3) include a nominated delivery point and (4) include a requested delivery date.
A Sale Confirmation and/or Proforma Invoice issued by Mulwarra that is stamped and/or signed by the customer is accepted as a Purchase Order in lieu of any Purchase Order being issued by the Customer.
Once Mulwarra has issued a Sales Confirmation and/or Proforma Invoice (1) the sale contract is binding whether or not the customer has notified Mulwarra of the delivery details for the goods (2) the Customer cannot suspend, cancel or vary the purchase order unless Mulwarra agrees in writing to do so.
a. List Price
Mulwarra reserves the right to change its prices. However, prices shown in the Price Lists issued by Mulwarra from time to time are binding for the duration of the validity period shown thereon, or if no validity period is shown, then the price list is valid until the next price list is issued by Mulwarra.
b. Non price list/spot offers
Any non-price list price for Goods offered by Mulwarra’s employees or agents will only be valid if in writing and will only be open for acceptance for within 24 hours from the date of the written offer – unless the time for acceptance is extended in writing by Mulwarra.
The Goods will be delivered in accordance with the written Purchase Order and Sales Confirmation and/or Proforma Invoice.
Mulwarra is deemed to have delivered Goods when they are delivered to the Customer’s nominated delivery point – even where the customer is unable to accept delivery of the Goods.
When Mulwarra is responsible for delivery, any delivery times provided by Mulwarra are estimate only and will not be binding on Mulwarra. Mulwarra will not be liable for any damages, costs or loss or whatever nature caused by reason of any delay in delivery.
Mulwarra is not liable for any claims for non-fulfilment or late delivery of Goods or for any loss or damage (including consequential loss or damage) suffered by the Customer arising from delay in delivery of Goods or failure to deliver due to circumstances beyond Mulwarra’s reasonable control and the Customer releases Mulwarra from any claims and must accept and pay for the Goods notwithstanding late delivery of Goods.
Unless otherwise agreed in writing by the Customer and Mulwarra, Mulwarra is entitled to deliver the Goods in one or more lots. Where delivery of the Goods is affected by way of part delivery Mulwarra is entitled to invoice the customer for pro-rata progress payments in respect of the part delivery.
8. IMPORT LICENCE & CUSTOMS
The Customer is solely responsible for payment of all duty, excise, imposts and levies and for obtaining any necessary import licence and other official authorisation and for carrying out all customs requirements.
The customer is solely responsible for the costs associated with any samples taken by customs, or any other official body in the procedure of customs clearance, or for any other purpose either at the time of clearing or at any time that the goods are in the possession of the customer.
After Mulwarra issues a Sales Confirmation and/or Proforma Invoice the Customer will be responsible for and liable for all additional payments to Mulwarra for any delays caused in delivering the Goods as a result of customs or other governmental or official requirements in the Customer’s country of business.
9. PAYMENT TERMS
Payment for goods is as agreed with the Customer and as advised on the Sale Confirmation and/or Proforma Invoice. Any credit terms offered are from date of invoice on each and every invoice.
In the absence of any written agreement to the contrary, payment shall be made:
i. by EFT, in the currency stated on the invoice; and/or
ii. if the Company so agrees, by irrevocable letter of credit;
iii. by telegraphic transfer with all bank charges incurred to be borne by the Customer; and within the period specified on the invoice.
iv. and full payment stated on the invoice received by Mulwarra with any bank fees including correspondent bank charges to be borne by the customer.
Without in any way limiting Mulwarra’s right to require payment in full on the due date, Mulwarra may, at its sole discretion, charge interest on overdue accounts at the rate of 16% per annum until overdue amounts are received in full.
Mulwarra reserves the right to refer invoices to a debt collector and/or remove or reduce any offered credit terms if invoices repeatedly remain unpaid beyond the credit terms. Any cost incurred in recovering outstanding monies, including collection, mercantile agent and legal costs will be recoverable and payable by the Customer.
If payment for the Goods is not made by the Customer by the due date specified by Mulwarra to the Customer then the Customer shall return the Goods to Mulwarra on demand and at the cost of the Customer. If the Customer does not return the Goods to Mulwarra within 48 hours of receipt of the demand, Mulwarra shall be entitled to enter upon the Customer’s premises at any time to do all things necessary to recover the Goods. The Customer shall be liable for all costs associated with the exercise by Mulwarra of its rights under this clause, which shall be repayable on demand.
10. PAYMENT OF MULWARRA’S ADDITIONAL COSTS
Mulwarra reserves the right to charge the Customer for any costs, charges or expenses that Mulwarra may incur as a result of;
Detention of the Goods (to the extent the same is not caused or contributed to by Mulwarra)
Demurrage on ships as a consequence of any act or omission of the Customer
Any special requirements or stipulations of the customer accepted by Mulwarra but not provided for in these Terms of Sale or the Sales Confirmation
Any increase in duties, taxes, freight, insurance or other charges or expenses from the date of acceptance of the Customer’s order by Mulwarra to the date of delivery of Goods.
Any additional costs as provided for in clause 9
Storage costs as provided for in clause 12
Unless otherwise expressly agreed by Mulwarra in writing, all bank fees will be charged to the customer including correspondent bank charges
The Customer may not claim any right of set-off against Mulwarra or otherwise deduct or counter claim any amounts from any amounts payable to Mulwarra in relation to the sales price for the Goods or these additional costs.
11. CLAIMS & RETURNS
The Customer agrees to inspect the Goods immediately upon delivery. Any claim by a Customer that the Goods are damaged or not otherwise in conformity with the Sales Confirmation relating to their supply must be (1) given in writing within 5 days of the date of delivery (2) specifying the defect or non-conformity (3) include photographs or other evidence supporting the customer’s claim.
Acceptance of the Goods by the Customer will be deemed, for all purposes, to have taken place immediately after delivery has occurred unless the Customer notifies Mulwarra in accordance with this clause.
If Mulwarra notifies the Customer that the Goods are ready for delivery and the customer requests Mulwarra to hold the Goods on its behalf, those Goods will be held by Mulwarra at the Customer’s risk, and Mulwarra will be entitled to charge storage fees in respect of the Goods so stored. Notwithstanding that Goods are held at Mulwarra facility, Mulwarra will have no liability for any loss or damage occurring through incorrect storage or handling.
Mulwarra is also entitled to charge the Customer for any costs associated with the issue of shipping documentation required as a result of a Customer’s request to hold Goods.
13. PASSING OF RISK & RETENTION OF TITLE
The Customer agrees that risk in the Goods will pass according to the terms stated on the Sale Confirmation and/or Proforma Invoice.
Legal and equitable title in the Goods remains with Mulwarra until payment in full for all debts accrued or owed by the Customer to Mulwarra is received by Mulwarra.
Until Mulwarra has received payment for the Goods in full it reserves the following rights:
Legal and equitable ownership of the Goods
The right to enter the customer’s premises and retake possession of the Goods; and
To keep or resell any Goods repossessed under point (b) above.
Notwithstanding these provisions Mulwarra may maintain an action against the Customer for the purchase price of the Goods.
Until Mulwarra has received full payment for the Goods the Customer:
agrees to take the Goods as bailee for Mulwarra;
must insure the Goods against all usual risks to full replacement value until title passes to the Customer noting on such insurance policy the interest of Mulwarra. Any insurance monies received by the Customer in respect of Goods where title is held by Mulwarra, shall be received on trust for and paid to Mulwarra.
must, where reasonably possible, store each delivery of Goods separately, clearly identified as Mulwarra property and in a manner to enable such Goods to be identified and cross-referenced to particular Mulwarra invoices; and
many only sell, use or part with possession of the Goods in the ordinary course of its business. Any such sale shall be as fiduciary agent for Mulwarra and the Customer must receive on trust for, and account to Mulwarra for, that part of the proceeds of sale that equates to the amount owing by the Customer to Mulwarra for those Goods. However, any such agency shall only extend to the obligation to account for proceeds and the Customer will not be bound by any contract between the Customer and the Customer’s Customer.
If the Customer fails to make due payment for any Goods supplied by Mulwarra, fails to open a letter of credit within the time reasonably specified by Mulwarra, fails to prepay prior to shipment (when these are the agreed terms) resulting in goods being held for one month or more, or commits a breach of these Terms of Sale, or any other term of the sale, Mulwarra may, without prejudice to any other rights it may have, do any or all of the following:
withdraw any credit facilities which may have been extended to the Customer and require immediate payment of all moneys owing or accrued and if this is not forthcoming commence recover action.
withhold any further deliveries of Goods required under an accepted purchase order;
suspend and/or terminate performance of any other contracts which Mulwarra has with the Customer.
Without prejudice to any other rights Mulwarra may have against the Customer, and to the extent permitted by law, the Customer shall indemnify Mulwarra for, and save it harmless from, any loss, damage, claim, demand, expense and cost (including legal costs on a full indemnity basis) incurred by Mulwarra should the Customer breach any of these Terms of Sale or cancel any order or part thereof for the Goods after acceptance by Mulwarra.
The Customer indemnifies Mulwarra against any claims, demands, actions or proceedings made or initiated against Mulwarra by any third party in respect of any damage, death or injury caused by or in any way attributable to the Goods as a result of the Customer’s negligence including but not limited to failing to properly store and transport the Goods.
16. EXCLUSION OF LIABILITY
MULWARRA ACKNOWLEDGES THAT CERTAIN LEGISLATION IN AUSTRALIA, INCLUDING THE AUSTRALIAN CONSUMER LAW, PROVIDES CONSUMERS WITH GUARANTEES AND RIGHTS WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED OR WHICH MAY IN CERTAIN CASES ONLY BE MODIFIED OR RESTRICTED TO A LIMITED EXTENT. NOTHING IN THESE TERMS AND CONDITIONS EXCLUDES, RESTRICTS OR MODIFIES, OR IS INTENDED TO EXCLUDE, RESTRICT OR MODIFY, ANY GUARANTEE, CONDITION, WARRANTY, RIGHT OR LIABILITY IMPLIED BY LAW (INCLUDING ANY GUARANTEE, CONDITION, RIGHT OR LIABILITY IMPOSED UNDER THE AUSTRALIAN CONSUMER LAW) WHICH CANNOT LAWFULLY BE EXCLUDED, RESTRICTED OR MODIFIED.
TO THE EXTENT PERMITTED BY THE AUSTRALIAN CONSUMER LAW, MULWARRA’S LIABILITY FOR GOODS OR SERVICES SUPPLIED UNDER A CONSUMER CONTRACT THAT ARE NOT OF A KIND ORDINARILY ACQUIRED FOR PERSONAL, DOMESTIC OR HOUSEHOLD USE OR CONSUMPTION IS LIMITED, AT MULWARRA’S OPTION, TO ANY ONE OR MORE OF THE FOLLOWING:
(A) IN THE CASE OF GOODS, THE REPLACEMENT, REPAIR OR PAYMENT OF THE COST OF REPLACEMENT OR REPAIR OF THE GOODS; AND
(B) IN THE CASE OF SERVICES, SUPPLYING THE SERVICES AGAIN OR PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
IN THE CASE OF GOODS OR SERVICES WHICH ARE NOT SUPPLIED BY MULWARRA UNDER A CONSUMER CONTRACT:
(A) MULWARRA ACCEPTS NO LIABILITY FOR ANY ECONOMIC, INDIRECT OR CONSEQUENTIAL LOSS, INCLUDING LOSS OF PROFIT, LOSS OF INCOME, LOSS OF CONTRACTS OR BUSINESS AND LOSS OF DATA; AND
(B) MULWARRA’S MAXIMUM AGGREGATE LIABILITY FOR ANY CAUSE AND UNDER ANY HEAD OF LIABILITY WILL NOT IN ANY CIRCUMSTANCES EXCEED THE TOTAL PRICE PAID BY THE CUSTOMER FOR THOSE GOODS AND SERVICES.
THESE TERMS AND CONDITIONS DESCRIBE THE FULL EXTENT OF MULWARRA’S OBLIGATIONS AND LIABILITIES IN RESPECT OF THE SUPPLY OF THE GOODS AND, EXCEPT AS EXPRESSLY STATED OR REFERRED TO IN THIS AGREEMENT OR AS OTHERWISE SPECIFICALLY PROVIDED IN WRITING BY MULWARRA, THERE ARE NO GUARANTEES, CONDITIONS, WARRANTIES OR OTHER TERMS THAT BIND MULWARRA NOR WILL MULWARRA OTHERWISE BE LIABLE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR FOR BREACH OF STATUTORY DUTY FOR ANY LOSS, DAMAGE, COST OR EXPENSE OF ANY KIND. TO THE EXTENT PERMITTED BY LAW ALL IMPLIED CONDITIONS, WARRANTIES AND UNDERTAKINGS ARE EXPRESSLY EXCLUDED AND EXCEPT AS PROVIDED IN THIS CLAUSE, MULWARRA IS NOT LIABLE FOR ANY LOSS OR DAMAGE, WHETHER DIRECT OR INDIRECT (INCLUDING CONSEQUENTIAL LOSSES OR DAMAGE) ARISING OUT OF ANY BREACH OF CONTRACT BY MULWARRA OR ANY NEGLIGENCE OF MULWARRA, ITS EMPLOYEES OR AGENTS AND THE CUSTOMER RELEASES MULWARRA FROM THOSE CLAIMS.
THE CUSTOMER AGREES THAT IT DOES NOT RELY ON THE SKILL OR JUDGEMENT OR REPRESENTATIONS OF MULWARRA’S EMPLOYEES OR AGENTS IN RELATION TO THE SUITABILITY OF ANY GOODS FOR A PARTICULAR PURPOSE UNLESS IT HAS INDICTED THAT PURPOSE IN WRITING TO MULWARRA AND MULWARRA HAS ACKNOWLEDGED IN WRITING THAT THE GOODS WILL BE FIT FOR THAT PARTICULAR PURPOSE.
Mulwarra reserves the right to assign or sub-contract its obligations to the Customer to any third party.
Except with the prior written consent of Mulwarra (which consent may be withheld by Mulwarra at its sole discretion), the Customer must not assign, novate or sub-contract any of its rights or obligations under these Terms of Sale or any Sales Confirmation.
Where the Customer sub-contracts or assigns its obligation, Mulwarra reserves, and the Customer grants to Mulwarra, the right to pursue the Customer as principally liable for any amounts owed to Mulwarra.
18. FORCE MAJEURE
Mulwarra will not be liable for any claims for non-fulfilment or late delivery should actual delivery of the Goods be delayed in consequence of unforeseen events such as strikes, suspension of any relevant power supply, riots, war, acts of terror, robbery, civil commotion, adverse non foreseeable weather conditions, disaster caused by fire and/or water, action by government or port authority, delay of vessel, and the inability to obtain transportation facilities.
19. INTELLECTUAL PROPERTY
Mulwarra for and on behalf of itself, its licensees (if any) reserves ownership and intellectual property rights in all inventions, names, illustrations, drawings, plans, specifications, formulas and documents relating to the Goods. Nothing in these terms and conditions operates or is intended to deny Mulwarra, or its licensees, or confer on the Customer, such rights or any other intellectual property rights in the Goods.
The Customer will indemnify Mulwarra for and in respect of claims by any third party in relation to the Goods which arise from or can be attributed to the special processes, requirements or specifications of the Customer, including the use or transfer of designs, logos, trade marks and techniques, equipment and tools in the manufacture, production and labelling of the Goods.
In this clause a reference to intellectual property rights includes patents, trade marks, copyright, registered designs and licences and applications in respect of any of the above.
20. EXPORTS AND EMBARGOES
This section applies where the Customer undertakes export, re-export or resale of the Goods or where our commercial arrangement is not restricted solely to the Australian market (Exports).
The Customer warrants and undertakes to Mulwarra:
(a) The Customer shall comply with all the (re-) export control regulations of Australia, France, the EU and the USA and those of any other applicable jurisdiction and it shall obtain all necessary licences, shipping documents and authorisations required under such legislation in respect of such Exports.
(b) The Customer shall not export or re-export the Goods to a country or entity that is subject to embargo or sanction without having obtained all necessary authorisations from Australian, French, European or American authorities, the United Nations or any other country or organisation that imposes such restrictions.
(c) All transfer and receipt of funds by the Customer comply with all national and international regulations.
(d) To enable authorities or Mulwarra to conduct compliance audits, the Customer upon request by Mulwarra, shall promptly provide Mulwarra with all relevant licences and authorisations, information as to the identity of the customer to whom the Goods are supplied, the destination and intended use of the Goods and the financial institutions or entities used to collect and issue payments.
(e) Customer shall indemnify and hold harmless Mulwarra from and against any and all claims, proceedings, actions, fines, losses, costs and damages arising out of or relating to any noncompliance by the Customer with any of the above undertakings or breach of any relevant export control regulations or sanction or embargo.
The Customer’s compliance with all the above undertakings is a condition of Mulwarra continuing to supply the Goods to the Customer and Mulwarra has the right to suspend such supply and terminate any agreement where we have a reasonable belief that the above undertakings are not being complied with or if any obligation under any agreement would constitute a breach of any national or international regulations or any embargo or sanction and Mulwarra shall have no liability to the Customer or any third party by way of damages or otherwise in respect of such suspension or termination.
Mulwarra may terminate the Agreement, or suspend or cancel any current Order, by written notice to the Customer without cause.
This Agreement is immediately terminate if the Customer becomes, or resolves to become, subject to external administration or proceedings under Chapter 5 of the Corporations Act 2001 (Cth); or a receiver or manager is to be or has been appointed over its assets or any part of its business or undertakings or a petition to wind up is to be or has been presented or any notice of a resolution to wind or any act of bankruptcy as defined in section 40 of the Bankruptcy Act 1966 (Cth) has occurred.
Upon the expiration or termination of this Agreement or the suspension or cancellation of any Order for any reason, the Customer must promptly pay all amounts owing to Mulwarra under this Agreement.
22. PRODUCTION SPECIFICATION AND DISCONTINUANCE
Mulwarra reserves the right to:
(a) discontinue Goods;
(b) substitute comparable Goods; and
(c) modify the Goods,
at any time including during the currency of these terms and conditions and any current Order and, in each case, without incurring any liability or other obligation to the Customer.
The laws of New South Wales and the Commonwealth of Australia govern these Terms. The parties submit to the exclusive jurisdiction of the courts of New South Wales and the Federal Court of Australia.
The United Nations Convention on Contracts for the International Sale of Goods (Vienna 1980, known as the Vienna Sales Convention 1980) is expressly excluded from these Terms of Sale.
These Terms of Sale contain the entire agreement between the parties on the subject matter of this agreement.
Any variation or modification of these Terms of Sale must be in writing.
Mulwarra’s failure to exercise a power or right does not operate as a waiver of that power or right and the exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right. A waiver is not effective unless it is in writing and is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
If any of these Terms of Sale is held invalid, unenforceable or illegal for any reason, these Terms of Sale remain otherwise in full force and effect apart from such provision which will be deemed deleted.
Notices to under these Terms of Sale must be in English and may be delivered by hand, mail, email or facsimile to the postal address, email address or facsimile number of a party specified on the Customer purchase order or such other address or facsimile number as the party has notified to the other in writing.