Australian domestic terms and conditions
Rio Tinto Aluminium Limited agrees to sell to the buyer according to the General Conditions of Sale outlined below. By accepting the final price offered for Rio Tinto Aluminium Limited metal, the Customer is accepting these General Conditions of Sale.
These Conditions of Sale are not negotiable either prior to or after accepting the offer price. Rio Tinto Aluminium Limited may alter, add or remove any Condition at any time, and will notify parties to which the Conditions apply at that time accordingly.
These conditions shall be read and construed in conjunction with the Agreement and shall constitute the entire Agreement between the parties hereto to the exclusion of all other terms, conditions and warranties whatsoever.
Material is sold and delivered on the basis of Incoterms (1990 edition - International Chamber of Commerce Publication No.460) as varied and supplemented herein. Risk in the Material shall be borne by Buyer from the time of Delivery. The provisions of the United National Convention on Contracts for the International Sale of Goods and any statute or law enacting or giving force to the same or any part or part thereof shall not apply to this sales contract.
Any claim which Buyer may have against Seller shall be deemed to have been waived unless Buyer gives written notice thereof to Seller within 21 days after the Material is unloaded at the port of discharge and affords to Seller a reasonable opportunity to investigate the claim. If any Material is not in accordance with the Agreement, Seller's liability shall be limited at Seller's option either to the replacement of such Material or repayment of the amount paid by Buyer less the scrap value of the Material. Seller's liability shall never exceed the contractual value of the consignment. Furthermore, Seller shall never be liable for any consequential, special or contingent damages which may be claimed to have resulted from the use of the Material or from Seller's failure to perform any obligation under this Agreement.
Material shall be supplied and accepted in accordance with the description stated herein and within the tolerances in regard to quantity, weight, dimensions, chemical composition, physical properties and finish specified in Rio Tinto Aluminium Limited's Product Data sheet, or if not so specified, as specified by the Aluminium Association Inc or, if not so specified, as normally regarded as being commercial acceptable. Manifests and certificates of analysis provided by Seller shall be deemed conclusive evidence for the matters stated therein.
Seller warrants only that the Material supplied hereunder shall conform to the description stated herein (subject to the tolerances referred to in Clause 4) and that it shall give good title to the Material. Expressly excluded are any conditions or warranties (express or implied) as to the quality of the Material or its fitness for any purposes (whether or not made known to Seller). This Agreement shall not be construed as a sale by sample.
a) Title to the Material and any products manufactured therefrom shall not pass to Buyer until payment has been made to Seller in accordance with the Agreement.If Buyer sells the material, or any products manufactured therefrom, before making payment to Seller then the Buyer's right to receive payment from its customer shall be held on trust from Seller.
b) Where payment is not made by the due date, Seller may charge interest from the due date on the overdue payment at 2% per annum above the one month LIBOR rate quoted by Barclays Bank on Reuters page LIBO on the due date.
Where the Seller supplies the Material according to Buyer's specification, Buyer by entering into the Agreement warrants that its design or instructions shall not cause Seller to infringe any letters patent, registered design, trade marks or trade names in the performance of the Agreement but in the event of any alleged infringement buyer shall fully indemnify Seller against any actions, claim, demand, costs, charges and expenses arising therefrom or incurred thereby.
Should Buyer fail to perform or observe any of the terms of the Agreement (including payment terms) or enter into an Agreement or arrangement with its creditors or, being an individual, commit an act of bankruptcy, or being a company resolve or bordered to be wound up or have a liquidator, receiver, receiver and manager or official manager appointed for all or any part of its assets, Seller may by written notice immediately cancel the Agreement as to any future delivery.
Seller may at its option either extend time of shipment (and make alternative shipping arrangements) or cancel the agreement if it does not receive in ample time to enable it to make shipping arrangements:
a) marking and shipping instructions from Buyer;
b) import certificates and documents from Buyer required to obtain governmental licences and authorisation in order to make shipments; c. advice that an irrevocable letter of credit (if applicable) has been issued by a bank and upon terms acceptable to Seller.
Upon cancellation of the Agreement by Seller pursuant to Clauses 8 or 9, Seller shall thereupon be entitled to stop the shipment or further shipment of the Material and recover from Buyer any sum due from Buyer at the time of cancellation and any loss or damage suffered by Seller.
Seller shall use all reasonable endeavours to effect delivery of Material by such date as may be specified in the Agreement but under no circumstances shall Seller be liable for any loss accruing to Buyer as a result of late delivery. However, in the event that Seller fails to effect delivery of any of the Material within thirty (30) days from the relevant date specified in the Agreement for any reason other than those specified in sub-clause 13(a), then Buyer shall have the right at its option to cancel this Agreement with regard to that consignment of Material.
Where delivery is by instalments, Seller's failure to deliver any instalment on time or at all shall not entitle Buyer to repudiate this Agreement with regard to any other instalments remaining to be delivered.
a.Should Seller (or either party referred to as Seller, in any capacity) be prevented from effecting delivery of the Material (or any part) from its current source or the source nominated for the purposes of this Contract by reason of any cause whatsoever beyond the control of Seller or its supplier, the time for delivery shall be extended until a reasonable time after the operation of the prevent cause has ceased, and the Seller may make alternative shipping arrangements. Seller shall not be liable for any loss or damage which may occur as a result of such delay. b. Upon the happening of any event within the scope of Sub-caluse 13(a), affecting this or any other Agreement to which Seller (or either party referred to as Seller, in any capacity, and whether or not both such parties are Seller pursuant to this Contract) is party, Seller (as aforesaid) may be written notice to Buyer withhold, reduce or suspend deliveries hereunder to such an extent as it may determine as fair and reasonable including and in particular, Seller may allocate material available to it (or either party so referred as Seller) from any source between its own uses, Buyer, and the other customers of each party referred to as Seller (whether or not both such parties are Seller pursuant to this Contract).
If this Agreement does not state a specific source of the Material, then Seller may declare the source of the Material and thereupon this Agreement shall become a contract for the supply of Material of that source.
If the source of any of the Material is declared (either at the time this contract is entered into or subsequently) to be Rio Tinto Aluminium (New Zealand) Limited, the agreement shall (to the extent so declared) be deemed to have been entered into by Rio Tinto Aluminium Limited as agent for Rio Tinto Aluminium (New Zealand) Limited as a contract for the supply of such Material.
This Agreement shall be governed by and construed in accordance with the laws of the State of Queensland, Australia. The parties accept and submit to the jurisdiction of the Courts in that State. Provided that Rio Tinto Aluminium Limited may take such proceedings as it sees fit in the courts of any Country, State or Territory in which the Buyer is resident or the goods are sold, delivered or situated and in such case the Buyer shall accept and submit to the jurisdiction of these courts. Any dispute arising in connection with the contract may be referred by either party to the International Chamber of Commerce (ICC) or the Australian Commercial Disputes Centre (ACDC) and shall be finally settled under the rules of conciliation and arbitration of ICC or ACDC by one or more arbitrators appointed in accordance with those rules provided that Rio Tinto Aluminium Limited may take such proceedings as it sees fit in accordance with paragraph 15. Any arbitration shall be held in Brisbane, Australia or in any other place in any Country, State or Territory solely at Rio Tinto Aluminium Limited's option. The parties agree that service of any notices in reference to such arbitration at their addresses as given in this contract (or as subsequently varied in writing by them) shall be valid and sufficient.
For the purposes of this Clause the following definitions have the following meanings:
a. GST' means a tax in the nature of a supply or goods and services tax levied or imposed by the Commonwealth of Australia; 'GST Date' means the date on which a liability for GST on any supply under this Contract first arises; 'Recipient' means, in respect of a particular supply made under this Contract, the party obliged to pay for that supply. 'Supplier' means, in respect of a particular supply made under this Contract, the party entitled to payment for that supply.
b. If any supply made under this Contract is subject to GST, the Recipient must pay to the Supplier, in respect of that supply, an amount sufficient to ensure that the Supplier retains after payment of GST the amount that the Supplier would have received had GST not been payable, or such lesser amount as the Supplier may charge having regard to section 75AU of the Trade Practices Act 1974 (Cmwth) and any corresponding State or Territory legislation.
c. Subject to Sub-clause 17(d), the Recipient must pay any amount payable under Sub-clause 17(b) on the same date as payment must be made for the supply giving rise to the liability for GST.
d. Despite any other provision of this contract, a Recipient need not make a payment under Sub-clause 17(b) until the Supplier has given the Recipient a GST tax invoice for that payment stating the amount of GST paid or payable by the Supplier in respect of the supply to which the GST tax invoice relates.