TERMS AND CONDITIONS
01. Unless otherwise agreed in writing by the Seller, the purchase price of the goods herein agreed to be sold (hereinafter called “the said goods”) shall be paid for in cash in US dollar currency before or at the time when the said goods shall be delivered in accordance with this Contract.
02. If the said goods are sold or order thereof are accepted on credit terms, such sale or acceptance of order is conditional on the right of the Seller to revoke and cancel such credit terms and to require cash payment for the price of the said goods AND until full payment of the price the property in the said goods shall not pass to the Buyer.
03. The Buyer shall bear and pay for any duty, tariff or other expenses which may be imposed or the rate thereof increased after the signing of this Contract by both the Buyer and Seller or acceptance of purchase order.
04. Any deposit or purchase price or part thereof paid to the Seller is not refundable, and subject to condition 7(b) hereafter.
05. The property in the said goods shall remain with the Seller unless and until the price of the said goods and/or interests, storage charges insurance premium and costs expenses and other charges and moneys, as the case may be, which the buyer is liable to pay herein shall have been fully paid notwithstanding the risks of the said goods may have passed to the Buyer and/or physical possession or custody of the said goods may have been given or delivered to or taken delivery of by the Buyer.
06. As regards the Buyer only, the respective times herein stipulated for taking delivery of and payment for the said goods shall be of the essence of this Contract. The failure on the part of the Buyer to pay for the price of the said goods in accordance with such stipulations relating to payment thereof shall entitle the Seller to treat such failure as a repudiation of this Contract by the Buyer and the Seller shall have the right to repudiate further performance thereof and to recover all loss and damages suffered by the Seller arising out of the Buyer’s breach of contract.
07. If the Buyer shall fail to take or accept delivery of the said goods or any part thereof, then on and as from the time when delivery of the said goods should have been taken by the Buyer, the risks or loss or damage or deterioration of the said goods from whatever cause arising shall pass to and be borne by the Buyer AND the Seller (without prejudice to the generality of the Seller’s rights herein and/or other rights and remedies available in equity and law) at the Seller’s sole discretion shall be entitled to exercise any one or more of the following options, namely :
(a) the Seller shall be entitled to hold the said goods but entirely at the risk and expenses of the Buyer for such time as the Seller shall in its sole discretion see fit. In such event, the Buyer shall pay to the Seller on demand all storage charges, insurance premium and interest on the price at the rate of 1.5% per month calculated on a daily basis from the date when the Buyer should have taken delivery of the said goods until delivery of the said goods shall have been taken and the price thereof fully paid. Notwithstanding the risks of the said goods shall have been passed to the Buyer as aforesaid, the property in the said goods shall not pass unless and until full payment of the above mentioned price charges and expenses and interest shall have been fully paid;
(b) The Seller shall be entitled to treat such failure on the Buyer to take delivery a repudiation of this Contract by the Buyer AND/OR to avail itself the right to repudiate further performance on the part of the Seller of this Contract and to forfeit any deposit money paid herein as and for liquidated damages without prejudice to the rights to claim for losses and damages for the Buyer’s breach of this Contract;
(c) The Seller shall be entitled to (and the Buyer shall be deemed to have given consent to the Seller to) sell the said goods or any part thereof by public auction or by private contract on such terms and conditions and at such price and/or otherwise dispose of the said goods in such other manner as the Seller shall think fit without being liable to the Buyer for any loss or damage which may be occasioned thereby. In such event, the Buyer shall be liable to the Seller for any loss and damages the Seller may suffer, including interest overdue charges and any deficiency in price and all costs charges and expenses occasioned thereby.
08. The Buyer is aware of and acknowledges that the Seller has to acquire and/or obtain the said goods from the manufacturers/suppliers for re‐sale to the Buyer herein. This Contract is entered into on the basis and condition that the manufacturers/suppliers shall deliver to the Seller in Australia the said goods in time to complete the re‐sale of the same to the Buyer.
09. If the manufacturers/suppliers shall fail to supply the said goods to the Seller in time, the Seller shall be entitled, entirely at the discretion of the Seller only, to rescind this Contract without being liable to the Buyer for loss or damages, if any, OR postpone the date of delivery of the said goods to the Buyer.
10. If the said goods are transported to Australia in and by different shipment, the late arrival of one shipment or the failure to arrive at all of the same shall not entitle the Buyer to repudiate this Contract, but the Buyer shall accept such portion of the said goods which shall have arrived at Australia.
11. If the said goods shall be damaged or lost while in transit from the manufacturers/suppliers to the Seller in Australia or in storage before or after arrival in Australia, the Buyer must take delivery of the said goods at an allowance to be determined by a duly qualified surveyor practicing in Australia to be solely appointed by the Seller.
12. The Seller shall not be liable to the Buyer for any loss or damages arising out of or in connection with failure on the part of the Seller to deliver or delay in delivery of the said goods or parts thereof if such non‐delivery or delay shall be due to any contingencies beyond the control of the Seller including but not limited to the failure of the manufacturers/suppliers to supply to the Seller the same or to supply to the Seller the same in time, shortage of labour, Act of God, strike, shortage of raw material, war (whether declared or not), hostilities civil strike, commotion, damage and loss to the said goods while in transit (whether by air, sea or land transportation) from the manufacturers/suppliers to the Seller; delay by carriers (whether by air sea or land), delay caused by banks and go‐down in the release of the said goods, delay caused by failure to comply with and/or observe rules and regulations of government agencies abroad and in Australia, failure to comply with terms of letters of credit and/or other bank documents and/or requirements of bankers of the manufacturers/suppliers.
13. Notwithstanding that credit has been given for the payment of the price of the said goods, the Seller shall be entitled to retain possession thereof until payment.
14. In addition to any right of lien which the Seller may be law be entitled, the Seller shall (in the event of the Buyer’s insolvency and/or failure to make payment of the price as stipulated herein) be entitled to a general lien on all the goods of the Buyer in the Seller’s possession (although such goods or some of them may have been paid for) for the unpaid price of any other goods sold and delivered to the Buyer by the Seller under this Contract or other agreements.
15. No warranty condition description or representation on the part of the Seller is given or implied by this Contract nor is any warranty condition description or representation to be taken to have been given or implied from anything said or written in the negotiations between the parties or their representatives prior to this Contract and any statutory or other warranty condition or description express or implied as to the state quality or fitness or merchantable quality of the said goods subject to this Contract is hereby expressly excluded.
16. Should any dispute arise with regard to the state or quality or fitness or merchantable quality or condition of the said goods or otherwise in connection with the terms of this Contract, the Buyer shall nevertheless take delivery of the said goods and make due payment therefore as herein agreed.
17. It is hereby expressly provided that the said goods delivered by the Seller hereunder shall be deemed to correspond with their description if they correspond with the sample (if any) which has been produced to and examined by the Buyer.
18. The description hereinbefore given of the said goods has been given by way of identification thereof only and the use of such description shall not constitute a sale by description.
19. Notwithstanding that a sample of the said goods (if any) may have been exhibited to and inspected by the Buyer, it is hereby declared that such sample so exhibited and inspected was solely to enable the Buyer to judge for itself of the quality of the bulk, and not so as to constitute a sale by sample under this Contract. The Buyer shall take the said goods at its own risk as to their correspondence with the said sample or as to their quality condition or sufficiency for any purpose.
20. The Seller will not be responsible for the quality or fitness of the said goods for any purpose but the Buyer must take them on its own judgment as the result of its examination of the same. Nor shall any description of the said goods given by the Seller constitute a sale by description.
21. The Seller binds itself only to the delivery of the said goods in accordance with the general description under which they were sold, whether or not any special or particular description shall have been given or shall be implied by law. Any such special or particular description shall be taken only as the expression of the Seller’s opinion in that behalf. The Seller does not give any warranty as to the quality state condition or fitness of the goods, which must be taken by the Buyer with all faults and imperfection.
22. The Buyer shall not cancel, modify or change any term or condition hereof without the Seller’s written consent. No claim or right of the Seller will be waived or renounced in whole or in part unless the waiver or renounciation of such claim or right is acknowledged and confirmed in writing by the Seller.
23. This Contract shall be governed by the laws of Australia and both the Seller and the Buyer irrevocably submits to the jurisdiction of the Courts in Australia.