Version Feb 2016 1
MINESITE MINING SPARES PTY LTD
SALES AND SERVICE TERMS AND CONDITIONS
Minesite Mining Spares Pty Ltd
T: (08) 9091 5595
F: (08) 9091 5594
Postal Address: PO Box 1071 Kalgoorlie WA 6433
0052016/VTB– AXS Access Management Pty Ltd– Personal Property Securities Document Review – Minesite Mining Spares Pty Ltd Sales and Services Terms and
1. Application of Terms and Conditions
1.1. These Terms and Conditions will apply to the sale of any Goods and the provision of any Services by the Company to the Customer and will form part of any Contract resulting from the Company’s acceptance of a Purchase Order.
1.2. In the event of any inconsistency between the terms of the Contract and the terms of a document issued by the Customer, the Customer agrees the terms of the Contract will prevail.
1.3. Upon acceptance of any Goods or Services from the Company, the Customer is deemed to have accepted these Terms and Conditions.
1.4. The Company may amend these Terms and Conditions on written notice to the Customer. If the Customer accepts Goods and/or Services from the Company following receipt of notice, the Customer is deemed to have accepted the amended Terms and Conditions.
2.1. Any quotation issued by the Company is not an offer to sell, hire or supply any Goods or Services and may be withdrawn or varied at any time prior to a related Purchase Order being accepted by the Company in accordance with clause 3. A quotation will only be valid for 30 days from its date of issue unless extended in writing by the Company.
2.2. Unless otherwise advised by the Company the terms of any Quotation will form part of the Contract between the Company and the Customer for the provision of Goods and/or Services upon the acceptance by the Company of a related Purchase Order.
3. Acceptance of Orders
3.1. The Customer may request the Company to sell Goods or Services to the Customer in accordance with these Terms and Conditions by providing a Purchase Order to the Company. All Orders
received by the Company are subject to acceptance by the Company in writing. The Company may accept or reject a Purchase Order in whole or in part in its absolute discretion. The issue by the Company of a written acceptance of a Purchase Order will not be or imply acceptance of any terms or conditions in the Purchase Order which are inconsistent with these Terms and Conditions or, if the Customer has a Credit Account with the Company, which are inconsistent with the terms of the Credit Agreement.
4. Terms of Payment
4.1. The Company will invoice the Customer for:
(a) the price of the Goods and/or the Services being the price set out in the Contract, subject to clause 4.2;
(b) any applicable GST or other tax, stamp duty or statutory charges or levies payable in relation to or in connection with the supply of the Goods or Services in accordance with clause 5.
4.2. Any change, after the earlier of the date of the Company’s Quotation (if applicable), the Purchase Order or the Contract and before the date of the invoice, in the cost of labour, materials, transport, essential services, tariffs, duties, exchange, or any other costs or expenses incurred by the Company must be paid for by the Customer.
4.3. Time for payment of the invoice will be stated on the invoice and, if no time is stated, then payment will be due within 7 days of the date of the Invoice. If the Customer has provided the Company with a Purchase Order, the Company will not be required to deliver the Goods to the Customer until payment has been received in accordance with this clause 4.
4.4. Notwithstanding clause 4.3, if the Customer possesses a current Credit Account with the Company then payment of the invoice will be due within the period required under the Credit Agreement or, if no period is stated in the Credit Agreement, within 30 days of the EOM in which the invoice is issued.
4.5. The Customer must pay the amount stated in the invoice in full and in cleared funds on or before the due date, without demand, deduction or set-off. If payment is made by way of cheque or electronic funds transfer, the Company will be deemed to receive payment of the funds on the date the Company receives cleared funds in its bank account.
4.6. The Company reserves the right to issue an invoice for partial deliveries and deliveries delayed at the request of the Customer.
5. Late payments and interest
5.1. Interest must be paid on any unpaid or outstanding amount payable to the Company, calculated from the due date for payment until final payment has been received by the Company, charged at the rate of 12% per annum.
5.2. Any and all expenses, costs and disbursements incurred by the Company in recovering or seeking to recover any outstanding monies due from the Customer including (without limitation) debt collection, agency fees and solicitor’s costs, shall be payable by the Customer to the Company on demand.
5.3. All sums payable by the Customer to the Company, whether or not such amounts are due for payment, will immediately become due and payable if:
(a) any payment by the Customer to the Company is overdue, in whole or in part;
(b) the Customer is otherwise in default under any Contract or Credit Agreement or any Contract or Credit Agreement is terminated; or
(c) the Customer or any Guarantor shall become bankrupt or commit any act of bankruptcy or enter into an arrangement with its creditors or have judgment entered against it in any court or, being a company, have a provisional liquidator, voluntary administrator, receiver or manager appointed or otherwise suffer some form of insolvency administration.
6. Taxes and duties
6.1. Unless stated otherwise, prices quoted to the Customer or set out in the Contract do not include the taxes, imposts and duties described in clause 6.2.
6.2. The Company may recover from the Customer, and the Customer must pay, the amount of any sales tax, customs duty, use tax, consumption tax, goods and services tax, value-added tax or any similar tax, impost or duty levied on any supplies made by the Company to the Customer under or in connection with these Terms and Conditions (excluding any income tax imposed on the
Company), whether that tax, impost or duty is currently in force or comes into force after the date of any Contract. Any such tax, impost or duty must be paid by the Customer at the same time as when payment for the supplies in respect of which the tax, impost, or duty is levied is due.
7. Application of payments
7.1. All payments to the Company must be made in the way reasonably required by the Company (which may include electronic funds transfer).
7.2. If the Customer makes a payment to the Company at any time, whether in connection with a Contract or otherwise, the Company may apply the payment to any part of the amounts owed by it to the Company as the Company sees fit.
7.3. The Company may, in its absolute discretion, offset any amount due from the Company to the Customer against any amount due from the Customer to the Company, or which will in thefuture be due from the Customer to the Company, whether in connection with a Contract or otherwise.
8. Delivery of Goods
8.1. The Goods will be delivered to the place nominated in writing by the Customer (“Delivery Point”) and all costs associated with delivery will be paid by the Customer unless otherwise agreed.
8.2. The Customer will be deemed to take delivery of the Goods and the Goods will be at the Customer’s risk from the date they are delivered to the Delivery Point.
8.3. The time within which the Company may advise the Customer that it will make delivery of Goods will be regarded as a best estimate, but will not be guaranteed and may be subject to extension to cover delays caused by or contributed to by Government priorities, manufacturers or suppliers, strikes, lockouts, breakdowns, delays in transport, fire, late delivery of raw material or components, or any other cause beyond the control of the Company and no responsibility will be accepted by the Company for the consequences of any such delays.
8.4. The Customer acknowledges and agrees that the Company will not be liable for and the Customer releases the Company from any liability in respect of any loss, damage or expense that the Customer may suffer or incur arising out of or contributed to by any delays in obtaining the Goods.
8.5. The Customer must take out and maintain insurance policies which terms satisfy the Company to cover any insurable loss in respect of the Goods between the delivery and the Company receiving full payment for the Goods,
9.1. The Company’s Goods and Services may come with guarantees that cannot be excluded under applicable law. The Customer is entitled to a replacement or refund for a major failure and
compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the
failure does not amount to a major failure.
9.2. Subject to any warranties which are implied by law and cannot otherwise be excluded, the Company excludes all other warranties, conditions or liability in relation to the sale, use or supply of the Goods and the supply of the Services and the Company will not be liable for any claim for direct, indirect or consequential loss or damage arising out of or contributed to by the manufacture, sale, use or supply of the Goods or the supply of the Services.
9.3. Subject to clause 9.2 to the extent that the Company’s liability cannot be excluded, the Company’s liability shall be limited to, in its sole discretion, either in respect of Goods, repairing the
defective Goods or part of the Goods or replacing it with the same Goods (or part of the Goods) or a comparable product and in respect of Services either repairing the defective Service or
resupplying the Service or covering the cost of resupply of the Service.
9.4. The Company makes no representation or warranty in relation to the supply of spare parts or the availability of facilities for the repair of the Goods (or any part of the Goods).
9.5. The Customer acknowledges and agrees that it has made its own enquires as to the suitability of the Goods (or any part of the Goods) for the Customer’s intended use and the Customer does
not rely on any statement, representation or information provided by or on behalf of the Company in relation to the Goods (including the use of the Goods) other than the statements, representations and information set out in writing in the Contract for the Goods.
10. Release and Indemnity
10.1. The Customer releases and discharges the Company from all claims and demands on the Company and any loss or damage whatsoever and whenever caused to the Customer of any other
person of any nature or kind and indemnifies and holds the Company harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by the Company and from and against all actions, proceedings, claims or demands made against the Company, arising in either case as a result of, or which has been contributed to by:
(a) the Customer’s failure to comply with any laws, rules, standards, or regulations applicable to the Goods or use of the Goods;
(b) any use of the Goods contrary to any instructions or warnings given by the Company or the manufacturer of the Goods;
(c) any other negligence or any breach of duty by the Customer;
(d) any compliance or adherence by the Company with any instruction by the Customer; or
(e) any reliance by the Company on any representation by the Customer.
10.2. The parties agree and acknowledge that, for the purposes of clause 10.1 a reference to the Customer includes the Customer’s agents, employees, directors, representatives and contractors and any person or party who uses the Goods or claims an interest in the Goods as a result of a transaction with, or otherwise with the permission of, the Customer.
11. Inspection and Testing
11.1. The Customer must inspect all Goods immediately upon the Goods being delivered and notice of any claim by the Customer in relation to the Goods (including but not limited to any claim that the Goods were damaged prior to delivery or do not accord with the relevant Purchase Order) must be made by the Customer in writing and received by the Company within 8 hours of the Delivery Date and, subject to clause 9, any claims not made within that period will be deemed to be waived.
12. Retention of Title
12.1. The Goods will remain the sole and absolute property of the Company as legal and equitable owner, and property in and title to the Goods will not pass from the Company to the Customer until all moneys owing on any account by the Customer to the Company are paid for in full.
12.2. Any payment made by or on behalf of the Customer which is later avoided or reduced by the application of any law will be deemed not to discharge the Company’s title in the Goods or the
Customer’s indebtedness to the Company.
12.3. Until title in the Goods has passed, the Customer holds the Goods as bailee in the capacity of a fiduciary for the Company. The Customer will keep the Goods supplied to it by the Company in its possession and take good care of them and store them and mark them in a manner that identifies the Goods supplied and clearly shows that they belong to the Company.
12.4. If the Contract relating to the Goods is terminated before title in the Goods has passed to the Customer, the Company may retake possession of the Goods and the Customer must do everything in the Customer’s power and at the Customer’s own expense to ensure the Company can lawfully enter any premises where the Goods are located and remove the Goods.
13. Repair and Maintenance Services
13.1. Services and Repairs
(a) The scope of the Services will be as stated in the relevant Purchase Order.
(b) Services work shall be performed during normal working hours (7:00am – 5.00pm) 7 days a week.
(c) The Company’s employees must be allowed unrestricted access to carry out the Services and must not be interrupted by production work. Any resulting waiting time shall be invoiced to the Customer.
(d) Any additional Services requested when the Company’s employees are in attendance will be treated as a separate service event and charged accordingly.
(a) All labour involved on the job will be charged according to the current Company labour rates. The rates are subject to being reviewed periodically. Notice will be provided to Customers of service rate changes 30 days in advance of the new rates being adopted.
(b) Parts used in the Services will be charged according to the current Company spare parts price list and if none then at cost plus 30%.
(c) All expenses incurred in providing the Services including transportation, hotel accommodation, subsistence, car hire and sundries, equipment hire may be added to the invoice and charged to the Customer at the discretion of the Company.
(d) The Customer agrees to take all necessary steps before the Service is due to begin to ensure that Service can proceed smoothly. Easy access to the machine must be provided. The machine area must be kept clear of all obstructions (material).
13.3 Company Equipment
(a) title to any goods or equipment brought onto the Customers site belonging to the Company for the purposes of carrying out the Services remains with the Company at all times.
(b) any goods or equipment brought onto a site are for the purposes of carrying out the Services only. In no way shall the existence of the goods or equipment on the site be deemed to constitute a PPS Lease for the purposes of the PPSA.
(c) The Customer has no rights or interest in such equipment and must not sell, lease, mortgage or in any other way deal with the equipment including attaching it to the site or any other goods without the express written authority of the Company.
14. Refurbish and Exchange Goods
14.1 The Company retains title in any Goods which are supplied to the Customer in exchange for used goods from the Customer until the Company has received the relevant used goods unencumbered from the Customer.
15.1. The Company may, without notice, terminate a Contract if:
(a) the Customer breaches any term of the Contract (including, without limitation, failing to pay an amount payable by the due date)
(b) the Customer becomes bankrupt or insolvent, executes a personal insolvency agreement, enters into liquidation, administration, receivership or ceases to carry on business; or
(c) the Customer’s conduct indicates that it no longer intends to be bound by the Contract.
16. PPS Laws
16.1. To the extent that a Security Interest arises under any Credit Agreement or Contract or any transaction contemplated by them in favour of the Company as the secured party:
(a) the Customer acknowledges that the Security Interest will attach to any proceeds or any accession;
(b) the Customer agrees to the Company effecting a registration on the PPS Register (in any manner the Company considers appropriate) in relation to any Security Interest and the Customer agrees to provide all assistance reasonably required to facilitate this (including paying all costs in connection with effecting, maintaining, amending or discharging that registration);
(c) the Customer waives the right to receive any verification statement (or notice of any verification statement) in respect of a registration made on the PPS Register; and
(d) the Customer must not, without first giving the Company 14 days’ prior written notice, change its name, ABN or any other identifiers which are required to be recorded on the PPS Register in
connection with any Security Interest.
16.2. The Customer and the Company agree that to the extent section 115(1) of the PPS Act allows them to be excluded, sections 95 (to the extent that it requires the Company to give notice to the
Customer), 96, 121(4), 125, 130 (to the extent that it requires the Company to give notice to the Customer), 132(3)(d), 132(4), 142 and 143 do not apply to the enforcement by the Company of any
Security Interest arising under any Credit Agreement or Contract or the transactions contemplated by them.
17.1. The Company and the Customer acknowledge and agree that neither party may disclose any information nor documents that are by their nature confidential, supplied by the other party that is not publically available subject to any requirement at law to do so.
18. Dispute Resolution
18.1. If at any time any question, dispute or difference whatsoever shall arise between the Customer and the Company upon, in relation to, or in connection with a supply of Goods or Services (“Dispute”) such Dispute must be dealt with by the parties following this procedure before either party may take legal actions against the other:
(a) The disputing party shall provide a written notice to the other party outlining the Dispute (“Dispute Notice”).
(b) After receipt of the Dispute Notice the parties shall, within 7 days, arrange for a meeting of senior representatives to attempt to resolve the Dispute.
(c) If the Dispute cannot be resolved by the senior representatives, then either party may initiate legal proceedings.
If the Customer is a trustee of any trust or settlement including, but not limited to, any trust specified in an Application for Credit, the Customer enters into any Credit Agreement or Contract in its
personal capacity and in its capacity as trustee, and is liable in both of those capacities.
20.1. The Customer must not, without the Company’s prior written consent, transfer, assign, encumber or otherwise dispose of any of the Customer’s rights or obligations under any Contract, Credit Agreement or these Terms and Conditions. The Company may assign or novate any rights or obligations under any Contract, Credit Agreement or these Terms and Conditions without notice to the Customer.
20.2. No waiver of any term of any Contract, Credit Agreement or these Terms and Conditions will be valid unless such waiver is in writing and signed by the Company. If the Company does not enforce any right or delays in enforcing any right under any Contract, Credit Agreement or these Terms and Conditions, this must not be construed as a waiver of such right.
20.3. These Terms and Conditions and any Contract will be governed by and determined in accordance with the laws of Western Australia.
20.4. The Customer irrevocably appoints the Company its attorney with the rights at any time to:
(a) comply with the obligations of the Customer under a Contract;
(b) do everything that in the Attorney’s reasonable opinion is necessary or expedient to enable the exercise of any right of the Company in relation to a Contract.
20.5. In the event of an inconsistency between any document forming part of the Contract the following order of priority shall apply:
(a) Terms and Conditions;
(b) Purchase Order.
20.6. All personal information collected by the Company shall be dealt with in accordance with the Privacy Act 1988.
21. Definitions and Interpretation In these Terms and Conditions:
“Application for Credit” means an application for credit form completed by the Customer and submitted to the Company;
“Company” means Minesite Mining Spares Pty Ltd (ACN 076 214 081) its successors and assigns;
“Contract” means contract for the sale of Goods or the provisions of Services by the Company to the Customer formed on the acceptance by the Company of the Customer’s Purchase Order and
includes the Company’s Quotation and these Terms and Conditions;
“Credit Account” means the Customer’s credit account with the Company established on the terms set out in the Credit Agreement;
“Credit Agreement” means the agreement between the Company and the Customer for the supply of Goods on credit, formed by written acceptance by the Company of the Credit Application;
“Customer” means the person or entity purchasing Goods and or Services from the Company identified in the Contract.
“Delivery Point” means the location at which the Goods will be delivered to the Customer as agreed to by the Parties;
“Goods” means all goods of whatever nature and kind and Services (where the context permits) supplied by the Company to the Customer from time to time including (without limitation) sale
goods, spare and replacement parts.
“Guarantor” means a person that guarantees to the Company the performance of the Customer;
“Parties” means the Customer and the Company and “Party” means one;
“PPS Law” means the PPSA together with any subsidiary legislation or regulations made under the PPSA and any amendment to a PPS Law from time to time;
“PPS Lease” has the same meaning as in the PPS Law
“PPS Register” means the register established under the PPS Law;
“PPSA” means the Personal Properties Securities Act (2009) (Cth) as amended from time to time;
“Privacy Act” means the Privacy Act 1988 (Cth) as amended from time to time;
“Purchase Order” means a written offer by the Customer to purchase Goods or Services from the Company accepted by the Company;
“Quotation” means the quotation provided by the Company to the Customer and accepted by the Customer within the time frame nominated by the Company for the provision of Goods and/or
“Security Interest” has the same meaning as under the PPS Law;
“Services” means any repair, maintenance, component refurbishment and exchange services carried out by the Company.
“Terms and Conditions” means these sale and services terms and conditions as may be amended from time to time.