Conditions of Supply |
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1.0 |
DEFINITIONS
As used throughout, the following shall have the meanings set forth
below unless otherwise indicated:
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1.1 |
the term "Customer" means the party
or parties, if any, to whom the Company sell or otherwise dispose
of the Articles being purchased hereunder.
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1.2 |
the term "MGI" means Mayo Group
International Pty. Limited, its successors and assigns.
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| 1.3 |
the term "Contractor"
means the individual, partnership, corporation or other entity contracting
to furnish the Articles described in this Contract.
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1.4 |
the word "Articles"
refers to the goods, products, services, supplies, parts, work, performance,
assemblies, technical data, drawings, units or other items constituting
the subject matter of this Contract which are to be furnished by the
Contractor to MGI hereunder.
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1.5 |
the term "Contractor"
includes the contract documents including any amendments, changes
or supplements thereto and the General Terms and conditions of Purchase
set forth herein, any special terms and conditions included herein
and all specifications and terms made a part hereof or incorporated
by reference.
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2.0 |
SPECIFICATIONS |
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All articles shall be in accordance
with the specification prepared by MGI PROVIDED THAT where the specification
is not prepared by MGI, all Articles shall be in accordance with the
Australian Standards Association's Specifications or if that specification
is not relevant to the Articles, the British Standard Specification
or, where neither of these specifications is relevant, in accordance
with the detailed specification prepared by the Contractor and accepted
by MGI.
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3.0 |
INSPECTION
AND RIGHT OF REJECTION |
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3.1
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Inspectors nominated by MGI shall
have access to the Contractor's premises at all times during working
hours for the purpose of inspecting the Articles at any stage of their
manufacture or preparation. MGI may reject the Articles either in
the course of manufacture or preparation or at any time thereafter
(including after delivery) if it considers the Articles to contain
defects in material or workmanship or to be not in accordance with
the specifications and if requested by MGI, the Articles rejected
shall be removed from the premises of MGI or the Customer (if already
delivered there) by the Contractor at his own expense and the cost
of any demurrage, freight, duty, cartage or haulage paid by MGI on
the rejected Articles, together with the cost incurred by MGI (if
any) in testing the Articles shall be paid by the contractor to MGI
on demand. Except if sub-clause (3.3) of this clause applies, all
Articles rejected shall be promptly replaced at the expense of the
Contractor.
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3.2 |
The time of delivery stated for
the Articles is of the essence of this contract. MGI may refuse any
Articles and may cancel all or any part of this contract if the Contractor
fails to deliver all or any part of the Articles in accordance with
the terms of this Contract.
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3.3 |
If the Articles are rejected
under either sub-clause (3.1) or sub-clause (3.2) of this clause and
in either case MGI notifies the contractor of its determination to
act under this sub-clause, MGI may contract with any other person,
firm or corporation to supply the Articles and may charge the contractor
or deduct from the amount owed by MGI to the contractor, the costs,
expenses and losses, including incidental and consequential damages
incurred thereby, which are in excess of the Contractor's price for
the Articles.
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3.4 |
MGI's approval of any design
furnished by the Contractor shall not relieve the Contractor of its
obligations hereunder. The Contractor shall not have any right to
any compensation or allowances by reason of the rejection of Articles
by MGI hereunder.
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3.5 |
Acceptance of any part of this
contract shall not bind MGI to accept future shipments or performance
of services nor deprive it of the right to return Articles already
accepted and shall not be deemed to be a waiver of MGI's right to
cancel or return all or any part of the Articles herunder or to make
any claim for damages including re-procurement costs or loss of profits,
injury to reputation or other special consequential damages incurred
by MGI. Such rights, which are expressly reserved to MGI, shall be
in addition to any other remedies provided under this Contract or
provided by law. Acceptance shall not be deemed to be complete until
the Articles have been actually received, tested and accepted by MGI.
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4.0 |
SHIPMENT
AND TITLE |
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4.1 |
Unless otherwise specified in
this Contract, the Articles shall be delivered FIS at the MGI premises.
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4.2 |
Title to the Articles shall pass
to MGI at the time of delivery except in instances wherein a partial
payment is made. Title to any of the Articles (including all materials,
equipment, fittings and parts specifically purchased and or appropriated
by the contractor for or to the manufacture or production of the Articles
and whether in the workshop of the Contractor or elsewhere) in respect
of which a partial payment is made, shall vest in MGI as at the date
of any such payment.
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4.3 |
Nothing herein contained shall
affect the right of MGI to reject the Articles and upon any such rejection
the property in the Articles rejected shall revest in the Contractor.
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4.4 |
The Articles shall be at the
risk of the Contractor until they are finally delivered to and accepted
by MGI in accordance with this Contract.
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4.5 |
The property of all materials,
equipment, fittings and parts shall at all times remain in MGI and
the Contractor shall be responsible for all loss or damage with respect
to such materials, equipment, fittings and parts.
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4.6 |
If the Contractor requires special
tools or test equipment or manufacture them in connection with this
Contract and charges MGI for the use therof or imposes any tool or
equipment service charge in connection therewith, MGI may at its option
upon completion or termination of this contract elect to take title
to such tools or equipment and upon receiving the notice of such election
the Contractor shall deliver such tools or equipment to MGI upon payment
by MGI to the Contractor of that portion of the cost of such tools
or equipment if any remaining unpaid incurred by the Contractor.
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5.0 |
WARRANTIES |
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5.1 |
The Contractor represents and
warrants:
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5.1.1 |
that the price charged for the Article shall
be no higher than the Contractor's current price to any other customer
for the same quantity of such Article and under like conditions.
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5.1.2 |
that all Articles delivered pursuant hereto
will be new, unless otherwise specified, and free from any and all
defects in materials and workmanship and that all Articles will conform
to applicable specifications (including drawings) and standards of
quality and performance and that all Articles will be free from defects
in design (when design is the responsibility of the contractor) and
suitable for their intended purpose.
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5.1.3 |
that the Articles are fit and safe for customer
use, if so intended.
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5.1.4 |
that all services performed pursuant hereto
will be free from any and all defects in material and workmanship
and will be performed in accordance with the specifications and instructions
of MGI PROVIDED NEVERTHELESS THAT the contractor shall retain direction
and control with respect to the manner and means of performing such
services and shall at all times remain an independent contractor.
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5.2 |
All representations and warranties
of the Contractor, whether express or implied, together with its service
warranties and guarantees, if any, shall run to MGI and to the Customer
and shall extend for a period of one year from the date of acceptance
of the Articles, except that latent claims shall extend for a period
of three years from the date the Articles are first placed in service. |
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5.3 |
The Contractor agreed to indemnify
and hold harmless MGI from any and all claims, liability, loss, damage
and expense including special, consequential and incidental damages
incurred or sustaining by MGI by reason of any breach of warranty
with respect to the Articles. Any claim for breach of warranty shall
survive inspection, acceptance or payment by MGI. |
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6.0 |
DATA AND
PATENTS |
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6.1 |
The Contractor will keep confidential
the features of any and all euipment, tools, gauges, patterns, designs,
drawings, engineering data and other technical or proprietary information
furnished by MGI and use such only on the production of the Articles.
Upon completion or termination of this contract the contractor shall
return all such items to MGI.
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6.2 |
The Contractor agrees to indemnify
and hold harmless MGI against any and all claims, liability, loss,
damage and expense including special, consequential and incidental
damages incurred by MGI arising by reason of the manufacture, sale
or use of any machinery, apparatus, equipment, materials or supplies
incorporated in or relating to the Articles being or being claimed
to be an infringement of patent rights or being or being claimed to
be subject to the payment of licence fees or royalties, including
but not limited to, all costs of litigation, damages, royalties, licence
fees,fines and penalties.
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7.0 |
SUB-CONTRACTING
AND ASSIGNMENT |
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The Contractor shall not assign
its rights or obligations or any sums that may accrue to it or be
due to it hereunder or sub-contract any of the work provided for herein
without the prior written consent of MGI.
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8.0 |
DEFAULT
- TERMINATION |
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8.1 |
MGI may by written notice to
the Contractor terminate the whole or any part of this Contract if
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8.1.1 |
the Contractor fails to perform any of the
provisions of this Contract or so fails to make progress as to endanger
the performance of this Contract in accordance with its terms, or
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8.1.2 |
the Contractor, being a person, becomes
insolvent, commits any act of bankruptcy or becomes the subject of
proceedings under any law relating to bankruptcy or for the relief
of debtors or being a corporation is wound up or passes a resolution
for voluntary winding up or has a winding up petition presented against
it or a Receiver appointed or any part of its undertakings placed
under the management of an Official Manager. If this Contract is so
terminated, MGI may procure or otherwise obtain upon such terms and
in such manner as MGI may deem appropriate Articles similar to those
covered by this Contract. The Contractor shall be liable to MGI for
any excess costs of such similar Articles.
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8.2 |
All rights and remedies of MGI
under this clause shall be in addition to any other remedies provided
in this Contract or by law.
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9.0 |
INDEMNITY |
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The Contractor agrees to indemnify
and hold harmless MGI and the Customer, their successors and assigns,
their officers, employees, agents and subsidiaries from all liability,
injuries (including death) and damages arising out of any occurrence
in the performance of this Contract caused by any act or omission
of the Contract, its officers, employees, agents or sub-contractors
provided MGI and the Customer are free of any negligence in connection
with the said occurrences.
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10.0 |
TAXES |
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Unless otherwise specified in
this contract, the prices to be paid to the Contractor as shown herein
include all Federal, State and local taxes and all foregoing taxes
and all duties, foreign or domestic, which are applicable to the Articles
being furnished hereunder.
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11.0 |
APPLICABLE
LAWS |
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The Contract shall be governed
by, subject to and construed according to the laws of the State or
Territory in which the MGI Branch is situated and the parties accept
the jurisdiction of the courts of that State or Territory and the
Commonwealth of Australia. The Contractor shall comply with all applicable
Federal, State and local laws.
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12.0 |
EXTRAS |
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Except as otherwise provided
in this contract, no payment for extra work of any type or description
shall be made unless such extras and the price therefor have been
authorised in writing by MGI.
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13.0 |
LABELLING |
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All Articles shall have affixed
labels which comply with Australian Law.
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14.0 |
INVOICING |
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The invoicing of all articles
must be accurate. If it is found after despatch that there is any
error, corrected Invoices must be produced and promptly sent to MGI.
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15.0 |
NO RETENTION
OF INTEREST |
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This Order is placed on the Condition
that there is no retention of interest by the Supplier in the Merchandise
after it is shipped, nor do any Romalpa clauses apply.
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16.0 |
This order is placed on the condition
that MGI is the sole importer/distributor/agents for the supplier
in the territory of Australasia for the ensuing period of three (3)
years from the date of this order.
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