Metalogenia Australia Standard Terms and Conditions of Sale

1. Application of Conditions

These terms and conditions of sale (Conditions) apply to all transactions between Metalogenia Australia Pty Ltd (ACN 664 580 683) (MTG Australia) and the purchaser or any successor (Purchaser) in respect of all products sold and services provided by MTG Australia to the Purchaser from time to time (together with any relevant documentation Products), unless otherwise agreed in writing by the Managing Director of MTG Australia. These Conditions prevail over any terms provided by the Purchaser on any purchase order or request or otherwise, and MTG Australia does not accept, nor is it bound to comply with, the Purchaser’s terms for the supply of the Products.

2. Acceptance of Conditions

The Purchaser accepts these terms and conditions by signing these Conditions, submitting a credit application to MTG Australia or by ordering the Products with a purchase order or by accepting a quotation in writing provided to the Purchaser by MTG Australia.

3. Purchase Order

To purchase any Products the Purchaser must provide a written purchase order. Purchase order confirmation is at MTG Australia’s discretion and may be issued with a proposed delivery date for the Products.Where the Purchaser cancels or requests a deferment of delivery of the Products and such cancellation or deferment is agreed to by MTG Australia, MTG Australia reserves the right to recoup any cost incurred as a result of the cancellation or deferment (as the case may be) including but not limited to reasonable storage fees.

4. Quotation and Prices

All quotations given by MTG Australia are subject to acceptance by the Purchaser within 30 days of the date of the quotation, unless otherwise specified in the quotation. The prices quoted are based on MTG Australia’s estimated cost of production, manufacture or supply at the time of quotation and are subject to alteration without notice to the Purchaser due to any increase in the MTG Australia’s costs between the date of quotation and the date or dates of delivery. Unless otherwise expressly agreed by MTG Australia in writing all Products will be charged for at the prices ruling at the date or dates of delivery. All prices quoted are exclusive of GST which, if applicable will be for the Purchaser’s account. All prices are expressed in Australian dollars and unless expressly stated otherwise, prices quoted are for delivery Ex Works MTG Australia’s Brisbane or Perth Warehouses (EXW, as that term is defined in Incoterms 2020). Telephone orders must be confirmed in writing.

5. Terms of Payment

1. Payment shall be net cash 30 days from date of invoice.
2. Purchasers granted credit term facilities may have such facilities suspended or rescinded should they not conform to trading terms.
3. MTG Australia may charge 2% per month on the outstanding balance of accounts not paid within 30 days of date of invoice.
4. MTG Australia will treat any default by the Purchaser in payment of any monies due to MTG Australia as a breach of these Conditions. Any costs incurred by MTG Australia in the recovery of any default payment will be paid by the Purchaser.

6. Specifications

Drawings, dimensions, weights, capacities, specifications and performances given or included by MTG Australia are approximate only and no warranty is expressed or may be implied by the provision of them, and the Purchaser undertakes to check all such drawings, dimensions, weights, capacities, specifications and performances to ensure that they are correct for the Purchaser’s purposes.

7. Use of Products

All Products are supplied on the express condition that the Products will be used in accordance with any provided layout drawings, load tables, specifications or published Products information brochures.

8. Delivery

1. Unless otherwise expressly agreed by MTG Australia in writing the Products will be delivered ex-works Brisbane or Perth (EXW as defined in Incoterms 2020) the Purchaser shall use its own carrier for the delivery of the Products to its address.
2. The Purchaser shall pay all freight and insurance costs ex-MTG Australia’s warehouse. MTG Australia’s delivery records shall be the prima facie proof of delivery of the Products in good order and of the description stated therein and shall be evidence of receipt by the Purchaser (notwithstanding the absence of any representative of the Purchaser at the point of delivery).
3. Any time quoted for delivery is an estimate only and in the event of delay MTG Australia shall not be liable for any loss or damage howsoever arising as a result or consequence of any failure to deliver or delay in delivery including any delay or failure to deliver arising from Force Majeure.  The Purchaser shall not be relieved of any obligation to accept or pay for goods by reason of any delay in delivery.  If MTG Australia determines that it is or may be unable to deliver within a reasonable time or at all the Agreement may be cancelled by MTG Australia.  In the event of cancellation, the Purchaser shall have no claim against MTG Australia for any damage loss cost or expense whatsoever. 
4. Force Majeure means any circumstances of whatsoever nature including in particular but without limiting the generality of the foregoing fire, flood, explosion, strike, lock-out or other industrial act or dispute or the break-down of or accident to plant, unavailability or shortage of raw materials, labour, power supplies or transport facilities or failure or inability to obtain licences or act of God or any order or direction of any Local, State or Federal Government or Government authority or instrumentality.
5. Where MTG Australia agrees in writing to arrange delivery of the Products to the Purchaser:
   1. the Purchaser shall reimburse MTG Australia for the costs of carriage and insurance; and
   2. this circumstance shall not change the passing of title and risk as provided for in clause 10.

9. Packaging

MTG Australia will provide any packaging required for shipping to its point of Delivery; it is the responsibility of the Purchaser to dispose of or recycle the packaging.Should a form of packaging other than that normally used by MTG Australia be specified, additional charges will be incurred.

10. Title and Risk

1. Title in the Products shall not pass from MTG Australia to the Purchaser until:
   1. the amount owing to MTG Australia from the Purchaser in respect of such Products has been paid in full; and
   2. to the extent permissible by law, all other monies or debts outstanding from the Purchaser to MTG Australia on any account have been paid in full.
2. The risk of loss of or damage to the Products shall pass to the Purchaser on delivery in accordance with clause 8.
3. The Purchaser indemnifies MTG Australia against any loss incurred between the date of delivery of the Products to the Purchaser and the date title passed to the Purchaser.

11. Breach of conditions

1. The Purchaser acknowledges and agrees that if the Purchaser fails to comply with any of these Conditions or in MTG Australia’s opinion, the Purchaser’s credit standing has materially changed, then MTG Australia may (in addition and without prejudice to any other rights that MTG Australia may have) require the Purchaser to immediately pay all amounts that are invoiced but unpaid; to pay in advance for any further supply or delivery of Products; to suspend or cease supplying Products; to demand that the unpaid Products be immediately returned to MTG Australia at the Purchaser’s expense; to enter the Purchaser’s premises and repossess Products for which payment is overdue; or cancel any other contract(s) with the Purchaser or such parts as MTG Australia sees fit.
2. The Purchaser will be liable to MTG Australia for all costs incurred by MTG Australia, including all costs on a full indemnity basis, in securing payment or recovering the Products and will be liable to MTG Australia for all costs incurred by MTG Australia arising, directly or indirectly, as a result of non-payment for Products, including legal costs.

12. Notice of Product Failure

The Purchaser shall notify MTG Australia within 24 hours of the failure or breakdown of any of the Products, including situations where negligent use of the Products by the Purchaser has led to the failure. MTG Australia implies and accepts no responsibility for the operation or effectiveness of any machine, system, design or plan in which its Products are placed.

13. No Purchaser Repair

The Purchaser shall not attempt to repair any Products without prior written approval of MTG Australia.

14. Acceptance and Returns

1. The Purchaser is deemed to have accepted a delivery of Products upon delivery (unless the Purchaser (within 7 days of delivery) has notified MTG Australia in writing of its rejection of that delivery and the reasons for the rejection are accepted by MTG Australia); or immediately upon use of the Products, whichever is the earlier.
2. The Purchaser warrants that it will inspect the Products upon delivery to ensure that the Products correspond with the corresponding Purchase Order.
3. The Purchaser must comply with all safety, care, cleaning, disposal and manufacturing directions or requirements issued by MTG Australia in relation to the Products.
4. Any request to return Products to MTG Australia must be made by the Purchaser completing and returning the ‘Request Return of Products’ form to [email protected]
5. Acceptance of a return of Products is entirely at the discretion of MTG Australia
   1. MTG Australia will issue a credit note for the Products accepted back on the basis that:
      1. the Products are in as new condition, if products require remediation to be returned to a saleable condition any cost of remediation shall be deducted from the credit
      2. any saleable Products being returned for credit will incur a 10% handling fee, deductible from the credit;
      3. any Products replaced under warranty become the property of MTG Australia and their return may be required for analysis at the discretion of MTG Australia; and
      4. return transport is at the Purchaser’s expense unless otherwise notified in writing by MTG Australia.
6. Returns will not be accepted for:
   1. Products ordered in error;
   2. the Purchaser has not complied with all safely, care, disposal and manufacturing directions or requirements
   3. made to order items are not returnable.; or
   4. Products that were acquired under special pricing conditions.

15. Performance and representations

The Purchaser acknowledges that, save to the extent required by law, neither MTG Australia nor any person purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in writing whether as to the fitness of the Products for any particular purpose or any other matter.The Purchaser acknowledges that the Products are not of a kind ordinarily acquired for private use or consumption.

16. Warranty

1. MTG Australia warrants that the Products supplied and their use by any Purchaser will be free from defects in material and workmanship for a period of 12 months from the date of invoice of the relevant Products. 
2. The provisions of the foregoing warranty are in lieu of any other warranty, whether express or implied, written or oral (including any warranty of merchantability or fitness for a particular purpose).  All other warranties or other terms, express or implied by statue or otherwise, are excluded to the fullest extent permitted by law.

17. Limitation of Liability

1. To the fullest extent permissible by law, MTG Australia excludes all conditions and warranties implied by statute, general law or custom, and further excludes and expressly disclaims any and all liability for any loss, expense, damage or claim suffered or incurred by the Purchaser (whether direct, indirect or consequential) arising in any way out of use of the Products, including but not limited to, lost profits, consequential damages or loss, costs and damages sustained or incurred directly by the Purchaser or as a result of a claim by a third party.
2. For the purposes of clarity, MTG Australia shall be under no liability in respect of any defect in the Products arising from fair wear and tear, or any wilful damage, negligence, subjection to abnormal working conditions, failure to follow MTG Australia’s written instructions, misuse, welding or hard facing, improper installation of the Products or alteration or repair of the Products without MTG Australia’s approval, or any other act or omission on the part of the Purchaser, its employees or agents or any third party.
3. To the extent that MTG Australia is not permitted by law to exclude liability in accordance with clause 17a the Purchaser agrees that MTG Australia’s liability for any loss, expense, damage or claim suffered or incurred by the Purchaser (whether direct, indirect or consequential) arising from or in connection with the provision of the Products or any negligent act or omission of MTG Australia, its officers, employees, contractors or agents, including but not limited to, lost profits, costs and damages sustained or incurred as a result of a claim by a third person or liability for breach of any express term of these Conditions, or liability for breach of any statutory or regulatory condition, is limited to, at the sole discretion and option of MTG Australia:
   1. the replacement of the Products; or
   2. the supply of equivalent Products; or
   3. the payment of the cost of replacing the Products or of supplying equivalent Products;
   4. a refund for the cost of the Products; and
   5. in the case of services, to the supplying of the services again or the payment of the cost of having the services supplied again.

   In any event MTG Australia’s liability to the Purchaser arising out of the sale or supply of any Products or services, whether based upon warranty, contract, tort or otherwise, shall not exceed the actual purchase price paid by the Purchaser for the Products reduced to the extent of any negligent act or omission of the Purchaser, its officers, employees, contractors or agents.

18. Indemnity

1. The Purchaser agrees to immediately indemnify and keep indemnified MTG Australia and its directors, officers, employees and agents, from and against any and all actions, claims, proceedings or demands which may be brought against MTG Australia or its directors, officers, employees and agents, in respect of any loss, penalty, damage, death, injury, illness, costs, expenses and liabilities of any kind (including, without limitation, reasonable legal costs) whether for personal injury, environmental damage or property damage, and whether special, direct, indirect, or consequential including consequential financial loss, arising out of or in connection with the Purchaser’s purchase or use of the Products, including any third party use of the Products or any breach of warranty, default, act or omission or any negligence by MTG Australia or its directors, officers, employees and agents.
2. To the full extent permitted by law, Part 1F of the Civil Liability Act 2002 (WA), (and other state equivalents) is excluded in relation to all and any rights, obligations and liabilities of either party under or in connection with these Conditions whether such rights, obligations or liabilities are sought to be enforced in contract (including breach of contract), in tort (including negligence), in equity, under statute or otherwise at law.

19. Intellectual Property

1. For the purposes of this clause, Intellectual Property includes but is not limited to all forms of intellectual property throughout the world, whether or not registered including, copyright, registered patent, design, trademark, business name, domain name and confidential information including know-how, production process and trade secrets, registered designs or other like rights or any right to apply for registration of any of the former.
2. The Purchaser acknowledges that MTG Australia or others own and reserve all the proprietary rights in the Intellectual Property in the Products.
3. If MTG Australia makes available or introduces any of its Intellectual Property to the Purchaser in providing Products to the Purchaser, then all proprietary rights to that Intellectual Property shall remain the sole property of MTG Australia or others.
4. The Purchaser must notify MTG Australia immediately upon becoming aware of any known or threatened infringement of the proprietary rights in the Intellectual Property or any claim, proceeding or action instituted against MTG Australia in relation to the Intellectual Property and must co-operate with and assist MTG Australia and comply with its instructions in relation to any of the above.
5. If the Products contain embedded software (Software) MTG Australia grants to the Purchaser a royalty free, non-exclusive, non-sublicensable, non-transferable, non-assignable limited right (within Australia) to use such Software in connection with the use, maintenance and sale of the Products for the life of such Products.

20. Confidentiality

1. The Purchaser and MTG Australia agree to maintain any confidential information disclosed by one to the other as confidential, not disclose it to any third party and not to use it except for the purposes of the Agreement.
2. In particular, the Purchaser agrees that all price lists or quotations supplied by MTG Australia are confidential and shall remain the property of MTG Australia and no part of any such documentation shall be divulged to another party or parties without the prior written consent of MTG Australia.
3. Either party may disclose the confidential information of the other to its employees, agents, officers, directors, advisors, consultants, contractors or subcontractors of that party who require it for the purposes of the Agreement, or with the prior written consent of the other party or if required to do so by law or by a corporate regulator.

21. Termination for Customer Breach

1. If the Customer fails to pay a material amount due and owing to MTG Australia under the Agreement, MTG Australia may serve a Customer Notice of Default.
2. A Supplier Notice of Default must state that:
   1. the material amount purportedly owing and require the Customer to remedy the breach within 14 days after service of the Supplier Notice of Default, and
   2. if the breach is not remedied within the 14-day period, then MTG Australia may by further notice to the Customer:
      1. suspend the Agreement in whole or in part until the breach has been remedied, or
      2. terminate this Agreement in whole or in part.
3. Notwithstanding any other provision of the Agreement MTG Australia may terminate the Agreement with immediate effect by giving notice if the Customer:
   1. ceases to carry on business,
   2. disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business,
   3. ceases to pay its debts as and when they become due, or
   4. goes into liquidation or receives a winding up order or has appointed to it an administrator, receiver, manager, trustee in bankruptcy or liquidator.

22. Waiver

Failure by MTG Australia to insist upon strict performance of any term, warranty or condition of the Agreement shall not be deemed as a waiver thereof or of any rights MTG Australia may have and no express waiver shall be deemed a waiver of any subsequent breach of any term, warranty or condition.

23. Variation of Conditions

1. These Conditions may only be varied by prior written consent of a Director (or his/her authorised delegate) of MTG Australia; and
2. Any variations to these Conditions will be deemed to have been received by the Purchaser if they are forwarded to the last known postal address of the Purchaser. A copy of the most current Conditions will be forwarded to any Purchaser which has requested it in writing from MTG Australia.

24. Variation of Agreement

Any agreement formed between MTG Australia and a Purchaser incorporating these Conditions (Agreement) may only be varied in writing signed by both parties.

25. Governing Law

These Conditions shall be governed by and construed in accordance with the laws of the State of Western Australia, irrespective of where the Agreement was made and any proceedings in respect of any claim matter or thing against MTG Australia shall only be instituted or carried on in the State of Western Australia.The parties agree to submit to the non-exclusive jurisdiction of the Courts of Western Australia.