TBS MINING SOLUTIONS ABN: 886 170 164 67
TERMS & CONDITIONS FOR SALE OF GOODS
& ASSOCIATED SERVICES
This document sets out the general terms that apply to the sale of the Goods and provision of associated Services (as specified in the Purchase Order) to the Buyer (as named in the Purchase Order). The Purchase Order if and when signed by TBS Services (TBS) or accepted in writing by TBS is incorporated in and forms part of the Contract. Some words that begin with a capital letter are defined at the end of this document.
Some rules of interpretation are also included at the end of this document.
1. SALE AND PURCHASE
1.1 TBS sells the Goods to the Buyer subject to the Terms.
1.2 If the Purchase Order specifies that any Services are to be provided by TBS to the Buyer in conjunction with the sale of the Goods, the Services are also provided subject to the Terms.
1.3 The Contract only comes into effect if and when:
(a) each of TBS and the Buyer sign the Purchase Order;
(b) if TBS has issued the Purchase Order, TBS accepts the Purchase Order in writing (including by signing the Purchase Order), irrespective of whether TBS provides an unsigned copy of the Purchase Order to the Buyer or otherwise confirms acceptance in any way; or
(c) if TBS has issued the Purchase Order, TBS delivers or otherwise supplies Goods or Services to the Buyer in accordance with the Purchase Order.
1.4 Nothing in the Purchase Order or in any other document submitted by the Buyer to TBS, including any Buyer terms and conditions of sale and anything referred to or incorporated by reference in the Purchase Order, operates to vary, limit, restrict or otherwise derogate from the Terms. The Terms apply instead of and take priority over any such terms, conditions or referenced matters.
1.5 The Contract solely governs the agreement between the parties in relation to the supply of the Goods and any Services, constitutes the entire agreement between the parties and supersedes any prior promises, representations, undertakings or statements by or on behalf of TBS, whether or not in writing, relating to the Goods and any Services.
1.6 TBS reserves the right to refuse or not accept any Purchase Order for any reason.
2. BUYER WARRANTIES
The Buyer warrants and represents that:
(a) any Purchase Order given by the Buyer to TBS is given with proper authorisation;
(b) it has full legal capacity to enter into and be bound by the Contract;
(c) TBS is entitled to rely, without independent verification, on any information or document provided by the Buyer in connection with the Goods, the Services or the Contract;
(d) it will ensure it is familiar with and adheres to all the necessary and appropriate precautions and safety measures relating to the transport, storing and handling of the Goods; and
(e) it holds all the relevant licences, permits and approvals required to transport, store and handle the Goods;
(f) it will comply, at its expense, with TBS’s requirements and directions, the Dangerous Goods Regulations and all other relevant laws, regulations, permits and licences pertaining to the transport, storage and handling of the Goods;
(g) it will, at its expense, ensure that all safety and operating instructions and notices are observed and are not defaced or removed from any Goods; and
(h) where the Goods comprise of bulk chemicals delivered into the Buyer’s storage tanks and vessels, those storage tanks, vessels, pipes, hoses, valves and other components used for the storage or transfer of those Goods are properly installed and maintained so as to prevent any death, injury or loss of containment during the processes of unloading the Goods into and storing those Goods in those tanks or vessels.
3.1 The quantity, quality, description or specification of the Goods and Services are as set out in the Purchase Order, subject to any variation by TBS under clause 17.8.
3.2 No Purchase Order that has been accepted by TBS may be cancelled by the Buyer except with the agreement in writing of TBS and any cancellation is deemed to be agreed to on condition that the Buyer must indemnify TBS against all Loss incurred by TBS as a result of the cancellation.
4.1 The Price for the Goods and Services is as stated in the Purchase Order including any deposit and/or rental charges for Returnable Containers, subject to any variations under clause 17.8 and additional charges payable by the Buyer in accordance with the Terms.
4.2 TBS is entitled to charge a currency conversion premium when converting receivables into Australian currency.
5.1 Unless otherwise agreed by the parties in writing, the Buyer must pay the Price to TBS before Delivery of the Goods. In the case of instalment Deliveries, each Delivery must be paid for before it is made.
5.2 If Goods are imported into Australia by TBS, any increase in the cost to TBS of acquisition of the Goods arising from fluctuation in currency exchange rates between the date of acceptance of the Purchase Order and Delivery of the Goods, is to the Buyer’s account and must be paid by the Buyer to TBS in addition to the Price.
5.3 Any fee, charge, duty, levy, impost or tax which is not applicable at the date of acceptance of the Purchase Order, but which is subsequently levied on TBS in connection with the sale of the Goods as a result of any change in law or policy, is to the Buyer’s account and must be paid by the Buyer to TBS in addition to the Price.
5.4 If any payment by the Buyer to TBS is overdue, then the Buyer must pay interest on that amount at a rate of 16% per annum, calculated and compounded daily, until the overdue amount is paid in full. Interest is payable on demand. Any payments made by the Buyer may first be applied to any outstanding interest.
5.5 If any money owed by the Buyer to TBS under the Contract or under any other agreement is overdue, TBS may withhold Delivery and/or provision of any Services, until arrangements for payment or credit have been agreed by TBS with the Buyer.
6.1 TBS will use its TBSt endeavours to deliver the Goods to the Buyer at the Delivery Address on the Delivery Date.
6.2 The Buyer must take Delivery and pay for all Goods ordered by it from TBS, which TBS supplies to the Buyer in accordance with the Contract.
6.3 If the Delivery Address is not a site controlled by TBS, the Buyer must:
(a) ensure that the Delivery site is ready to receive Delivery of the Goods; and
(b) give TBS all necessary instructions, within 10 Business Days after being informed by TBS that the Goods are ready for Delivery, relating to the Delivery.
6.4 If the Delivery Address is a site controlled by TBS, the Buyer must take Delivery within 3 Business Days after being informed by TBS that the Goods are ready for Delivery.
6.5 Any vehicle used by the Buyer to collect, load, unload or transport the Goods must be suitable for that purpose
6.6 The Buyer must carry out a comprehensive visual inspection of the Goods on Delivery in order to be satisfied that they are in good working order and condition. The Goods are taken to be supplied to the Buyer in good working order and condition and free of defects or Damage, unless the Buyer notifies TBS otherwise within 2 Business Days after Delivery. The notice is not effective unless it contains details of the reason or reasons why the Goods are not in good working order and condition or details of the defect(s) or the Damage.
6.7 The manner of Delivery of the Goods and provision of the Services is at TBS’s sole discretion.
6.8 TBS may store the Goods at TBS’s own premises or such other premises as it deems fit, at TBS’s sole discretion.
6.9 If the Buyer does not comply with its obligations under clauses 6.2 or 6.3, the Buyer must pay all Loss incurred by TBS as a result of non-Delivery of the Goods, including but not limited to costs of re-Delivery, transport and storage of the Goods.
6.10 Unless otherwise agreed in writing by the parties, the Delivery Date of the Goods and any dates for provision of the Services specified by TBS, whether in the Purchase Order or otherwise, are estimates only and TBS is not liable to the Buyer for any Loss suffered by the Buyer as a result of TBS’s delay in meeting those dates for any reason whatsoever.
6.11 The Buyer is not entitled to terminate the Contract because of any delay in Delivery of the Goods or provision of the Services.
7. RISK AND PROPERTY
7.1 Risk of Damage to the Goods passes to the Buyer on Delivery.
7.2 If the Goods or Services are withheld by TBS pursuant to clause 5.5, risk in the Goods passes to the Buyer when the Buyer would have been able to take Delivery of the Goods had TBS not withheld the Goods or Services.
7.3 Subject to clause 8, notwithstanding Delivery and the passing of risk in the Goods or any other provision of the Terms, property in the Goods does not pass to the Buyer until TBS has received, in cash or cleared funds, payment of the Price in full. Pending payment of the Price, the Buyer is a bailee of the Goods and owes TBS the duties and liabilities of a bailee.
7.4 Until the property in the Goods passes to the Buyer, TBS may at any time on giving notice to the Buyer require the Buyer to deliver up possession or control of the Goods to TBS.
7.5 The Buyer irrevocably authorises TBS to enter the Buyer’s premises for the purpose of retaking possession or control of Goods pursuant to clause 7.4 (or any other clause in the Contract), but if the Goods are located on the property of any third party, the Buyer must obtain approval from the third party for TBS to enter those premises for that purpose immediately after TBS requests the Buyer to obtain that approval.
7.6 TBS may keep, resell or otherwise deal with the Goods repossessed under clauses 7.4 or 7.5, in its absolute discretion.
7.7 The Buyer must not sell, pledge or in any way charge any Goods by way of security while the Goods remain the property of TBS. If the Buyer does so, then:
(a) all money owing by the Buyer to TBS (without prejudice to any other rights or remedies of TBS) becomes immediately due and payable; and
(b) all money received by the Buyer in respect of any sale of or security given over the Goods is held on trust for TBS until TBS has received full payment for the Goods.
7.8 Until property in the Goods passes to the Buyer, the Buyer must:
(a) keep the Goods in good and marketable condition, separate from all other property of the Buyer or of a third party, and except in cases of emergencies, must ensure that all repairs or replacements which are required to the Goods are effected by TBS or its duly appointed agent or representative at the cost of the Buyer; and
(b) insure the Goods for their full replacement value with an insurer authorised to conduct insurance business in the place in which the Goods are situated, with TBS to be notified on such policy as the owner of the Goods and as a party insured or with cross liability provisions to the same effect.
7.9 Subject to clause 7.7, where the Buyer re-sells or distributes the Goods to any third parties, it must ensure that it provides detailed instructions to those third parties regarding the safe transport, storage and handling and of the Goods.
8. RETURNABLE CONTAINERS
8.1 All Returnable Containers provided by TBS to the Buyer:
(a) remain the property of TBS;
(b) must not be used for the transport or storage of any other Goods than those contained therein at the time of Delivery;
(c) must be returned, at the Buyer’s expense, to the Return Address by the Return Date; and
(d) will be deemed to be at the Buyer’s risk and in the Buyer’s possession or control until returned in accordance with (c).
8.2 Upon the Buyer’s return of the Returnable Containers in good order and condition, TBS will return the full amount of any deposit to the Buyer.
8.3 In the case of receipt of the Returnable Containers not in good order and condition, TBS will return only such part of the deposit as is reasonable, in TBS’s sole discretion, having regard to the Returnable Containers’ actual condition.
9.1 All specifications, drawings, and particulars of weights and dimensions provided by TBS to the Buyer are approximate only and any deviation from any of these things does not vitiate the Contract or constitute grounds for any Action against TBS.
9.2 The descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the Contract or of the description of the Goods.
9.3 If specifications, drawings or other particulars are supplied by the Buyer, the Price is calculated on estimates of quantities required. If there are any adjustments in quantities above or below the quantities estimated by TBS and set out in a sale quotation, then any such increase or decrease is to be adjusted on a unit rate basis according to unit prices set out in the sale quotation.
10. INTELLECTUAL PROPERTY RIGHTS
Unless otherwise agreed in writing by TBS:
(a) the supply of the Goods and any Services does not include the supply of any Intellectual Property Rights in relation to or associated with the Goods or Services and TBS retains all such Intellectual Property Rights; and
(b) any Intellectual Property Rights developed by TBS in providing the Services or supplying the Goods (including any modifications, improvements or enhancements to existing Intellectual Property Rights) are owned by TBS and TBS is not obliged to make any payment or provide any compensation to the Customer for such Intellectual Property Rights.
11. LIABILITY, INDEMNITY AND RELEASE
11.1 The Buyer purchases the Goods and Services at its own risk.
11.2 The Buyer is liable for, indemnifies and will indemnify and keep TBS indemnified against all Loss, and unconditionally and irrevocably releases TBS from any Action arising out of or in connection with:
(a) the use of the Goods by the Buyer or by any third party;
(b) any defect in or Damage to the Goods which ought to have been apparent upon a reasonable visual examination of the Goods upon Delivery but which is not reported by the Buyer to TBS;
(c) any defect in or Damage to the Goods if such defect or Damage is caused or contributed to by the Buyer or by any third party, including but not limited to defects or Damage arising out of any alteration to the Goods by the Buyer or any third party;
(d) any defect in, Damage to, or deterioration of, the Returnable Containers whilst in the Buyer’s possession;
(e) the re-taking of possession of any Goods pursuant to clauses 7.4, 7.5 or 12.1;
(f) the dealing with the Goods pursuant to clause 7.6; or
(g) any injury to any person, or Damage to property arising out of the Delivery, loading, unloading, transportation, use, operation, installation or storage of the Goods by the Buyer or by any third party.
11.3 If TBS is not the manufacturer of the Goods, TBS:
(a) is not liable for any Loss arising out of or in connection with any alteration or variation of Goods made by the manufacturer or supplier;
(b) does not provide any warranty with respect to the Goods; and
(c) will provide the Buyer with all details of the manufacturers’ warranties and do whatever is reasonably necessary to enable the Buyer to receive the benefit of any manufacturers’ warranties.
11.4 To the maximum extent permitted by law:
(a) all terms and warranties expressed or implied by any legislation, any written or unwritten law, trade, custom or usage or otherwise in relation to the supply of the Goods or the provision of the Services or the Terms are expressly excluded;
(b) subject to clauses 11.5(a) and 11.5(b), the Buyer bears the risk of, and TBS is not liable in respect of, any Loss of the Buyer or any other person arising out of or in connection with the supply of the Goods or provision of the Services (irrespective of whether the Loss was caused by the negligence or default) including, without limitation anything arising out of or in connection with:
(i) the loading or unloading of the Goods on or from the relevant transportation vehicle;
(ii) the disassembly or reassembly of the Goods;
(iii) the transportation, Delivery or availability of the Goods;
(iv) any delay in connection with the Delivery of any Goods or the provision of the Services;
(v) any delay in production, inconvenience or Loss arising out of or in connection with any accident involving, or breakdown or defect in, or Damage to, the Goods or any part of them, or the Services, from any other cause whatsoever; or
(vi) any Loss suffered by third parties, including the Buyer’s customers.
11.5 A statement signed by or on behalf of the Buyer that it has received the Goods and any Services free from defects or Damage is conclusive evidence of that fact and TBS is not liable for any Loss arising out of any defect or Damage subsequently alleged by the Buyer.To the extent that any legislation or law implies any term or warranty or prohibits provisions in the Contract excluding or modifying the application of, exercise of or liability under that term or warranty, the liability of TBS for breach of that term or warranty is limited, at the discretion of TBS, to:
(a) in respect of Goods:
(i) the replacement of the defective part of the Goods or the supply of equivalent Goods;
(ii) the repair of the defective part of the Goods; or
(iii) the payment of the cost of having the defective part of the Goods repaired or replaced; or
(b) in respect of Services:
(i) the supply of the defective Services again; or
(ii) the payment of the cost of having the defective Services supplied again.
11.6 To the extent that TBS is held to be liable to the Buyer for a monetary amount in respect of any Action or Loss arising out of or in connection with the Contract, the supply of the Goods or the provision of the Services, TBS’s liability to the Buyer is in every case limited to the Price.
11.7 TBS is not liable for any Loss incurred by the Buyer, and the Buyer releases TBS from all Actions arising out of or in connection with the faulty or defective design of the Goods unless such design has been wholly developed by TBS in which event TBS’s liability is strictly limited pursuant to clause 11.5.
11.8 TBS is not liable for Loss arising out of or in connection with the supply of the Goods or the provision of the Services unless:
(a) to the extent that the Loss arises out of a defect in or Damage to the Goods which ought to have been apparent upon a reasonable visual examination of the Goods upon Delivery, the Buyer gives TBS notice of the defect or Damage within 10 Business Days after the Delivery of the Goods; and
(b) any Action arising out of or in relation to the Loss is filed and served on TBS within 6 months after the Delivery of the relevant Goods or the completion of the provision of the relevant Services.
11.9 The Buyer’s compliance with clause 11.8 is a condition precedent to the Buyer’s entitlement to make any claim for, or bring any Action in respect of, any such Loss.
11.10 TBS is not liable for Loss arising out of or in connection with any quotation, representation or information, whether oral or in writing, made or given by or on behalf of TBS. TBS does not accept responsibility in relation to any decision made or action taken or liability incurred on the basis of any such quotation, statement, representation or information.
12. DEFAULT AND TERMINATION
12.1 If the Buyer:
(a) fails to make any payment, which pursuant to the Contract it is required to make, and fails to remedy that breach within 3 days after being requested by TBS to do so; or
(b) commits or allows to be committed any breach or non-observance of any of the obligations on its part to be complied with under the Contract, and fails to remedy or take effective action to remedy that breach or non-observance, so far as reasonably practicable, within 7 days after being requested by TBS to do so; or
(c) prior to the payment of all of the Price:
(i) is unable to pay its debts when they fall due;
(ii) threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvent administration;
(iii) enters into any negotiations for any arrangement or composition with its creditors;
(iv) being a company, goes into liquidation, whether voluntary or compulsory, or has a receiver or receiver and manager or administrator appointed, or an application is made for the Buyer to be wound up; or
(v) ceases or threatens to cease to carry on business,
then TBS may:
(d) terminate the Contract without providing prior notice to the Buyer; or
(e) retake possession of the Goods to the value of the unpaid portion of the Price.
12.2 The termination of the Contract does not affect or prejudice any rights of TBS that have accrued prior to the termination, whether under the Contract, or any written or unwritten law. TBS’s exercise of its rights under this clause does not affect or limit its ability to exercise any other rights under the Contract or under any law.
12.3 If the Buyer defaults in any of its obligations under the Contract, including its obligation to pay for the Services, then all amounts unpaid as at the date of that default immediately become due and payable.
12.4 The Buyer is entitled to terminate the Contract if TBS, having accepted the Purchase Order for the supply of the Goods or provision of the Services, notifies the Buyer that it is for any reason unable or unwilling to supply or provide the Goods or the Services. If TBS gives such notification, TBS is not in breach of the Contract or of any obligation of TBS under any written or unwritten law.
12.5 TBS may set off any money owed to the Buyer against money owed by the Buyer to TBS under the Contract or any other agreement.
13. FORCE MAJEURE
13.1 If either party is by reason of Force Majeure prevented from carrying out any of its obligations under the Contract, that obligation is suspended but only to the extent and so far as affected by, and during the continuance of such Force Majeure. Neither party is liable to the other for any Loss associated with the delay or disruption due to Force Majeure
13.2 Clause 13.1 does not apply to any obligation of the Buyer to pay money.
14. APPLICATION OF THE PPSA
14.1 In this clause 13, PPSA means the Personal Property Securities Act 2009 (Cth). If a term used in this clause has a defined meaning in the PPSA, it has the same meaning in this clause.
14.2 This clause applies if:
(a) the Contract gives TBS a security interest in the Goods or any other property; or
(b) the PPSA applies to the Contract for any other reason.
14.3 The Buyer must not:
(a) create any form of security interest over the Goods in favour of any third party;
(b) register, or arrange for the registration of a financing statement or financing change statement in relation to the Goods in favour of any third party without TBS’s prior written consent; or
(c) register, or arrange for the registration of a financing statement or financing change statement in respect of a security interest given or deemed created by the Contract without TBS’s prior written consent.
14.4 The Buyer acknowledges that TBS may register a security interest in the Goods at any time before or after the Delivery of the Goods. The Buyer waives its right under section 157 of the PPSA to receive notice of any verification of the registration.
14.5 TBS can apply amounts it receives from the Buyer towards amounts owing to it under the Contract in such order as TBS chooses.
14.6 If the Buyer defaults in the performance of any obligation to TBS under the Contract or any other agreement for TBS to supply Goods to the Buyer, TBS may enforce its security interest in any Goods by exercising all or any of its rights under the Contract or the PPSA.
14.7 To the maximum extent permitted by law, the following provisions of the PPSA do not apply to the enforcement by TBS of its security interest in the Goods: sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143.
14.8 The Buyer must not disclose information of the kind mentioned in section 275(1) of the PPSA except in circumstances required by sections 275(7)(b)-(e) of the PPSA. The Buyer waives any right it may have, or but for this clause may have had, under section 275(7)(c) of the PPSA to authorise the disclosure of such information.
14.9 The Buyer must promptly do anything required by TBS to ensure that TBS’s security interest is a perfected security interest and has priority over all other security interests in the Goods.
14.10 Nothing in this clause is limited by any other provision of the Contract or any other agreement between the parties.
15.1 In this clause 15, the expressions “adjustment note”, “consideration”, “GST”, “supply”, “tax invoice”, “recipient” and “taxable supply” have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
15.2 Unless otherwise stated, the Price and any other amount payable for any supply of goods and services under the Contract are specified exclusive of GST.
15.3 If GST is imposed on any supply made under the Contract, the Buyer must pay to TBS an amount equal to the GST payable on the taxable supply. Such amount must be paid in addition to and at the same time as payment for the taxable supply is required to be made under the Contract.
15.4 If a GST price is charged or varied under the Contract, TBS will provide the Buyer with a valid tax invoice or adjustment note at or before the time of payment or variation.
15.5 If the amount of GST paid or payable by TBS on any supply made under the Contract differs from the amount of GST paid by the Buyer, because the Commissioner of Taxation lawfully adjusts the value of the taxable supply for the purpose of calculating GST, then the amount of GST paid by the Buyer will be adjusted accordingly by a further payment by the Buyer to TBS or TBS to the Buyer, as the case requires.
16. DUTIES, TAXES AND DELIVERY COSTS
The Buyer must pay:
(a) any import duties, taxes or charges associated with the importation or acquisition of the Goods; and
(b) all costs involved in delivering the Goods to the Buyer including freight and transportation costs, loading charges and insurance costs, and including any increases in these costs which come into effect after the date of acceptance of the Purchase Order.
17.1 Waiver: No waiver by either party of any breach of a provision of the Contract is a waiver of any subsequent breach of that provision or any other provision. A waiver is not effective unless it is in writing.
17.2 No Agency: The Contract does not create a relationship of employment, partnership or agency between TBS and the Buyer, or between the Buyer and any person whose services are provided by TBS.
17.3 Subcontracting: TBS may subcontract its obligations under the Contract but, if it does so, it will remain liable to the Buyer in accordance with the Contract.
17.4 Intellectual Property: Without limiting clause 10, all illustrations, drawings, data and other documents supporting or forming part of the sale quotation and all Intellectual Property Rights in the Goods remain the property of TBS at all times. The Buyer must not disclose that Confidential Information or make it available to any other person, corporation or entity without the prior written consent of TBS, which consent may be withheld in TBS’s absolute discretion.
17.5 Regulatory Requirements: The Contract is at all times conditional on and subject to:
(a) TBS being able to obtain all export or import licences and permits, and all financial authorisations including all foreign exchange authorisations required for the acquisition and supply of the Goods and any Services by TBS; and
(b) all other Government requirements in relation to that acquisition and supply of the Goods and Services being met.
17.6 Governing Law: The Contract is governed by, and is to be interpreted in accordance with the laws in force in the State of Western Australia and the parties submit exclusively to the jurisdiction of the courts in that State, and any courts of appeal therefrom.
17.7 Severance: If any provision of the Contract is determined to be void by any court then that determination does not affect any other provision of the Contract, which otherwise remains in full force and effect.
(a) TBS may add to, delete or otherwise change any of the Terms by giving the Buyer written notice. Such a change takes effect in respect of each subsequent Contract and the making of a Purchase Order by the Buyer following the issue of such notice constitutes deemed acceptance by the Buyer of the changes.
(b) An amendment or variation to the Contract required by the Buyer is not effective unless it is in writing and signed on behalf of TBS by one of its directors or another authorised person. If TBS agrees to a variation of the Contract due to exigencies resulting from acts, omissions or circumstances for which the Buyer is responsible or for the Buyer’s convenience, the Buyer must pay TBS any increase in Price caused by that variation as specified by TBS.
17.9 Notices: Notices under the Contract must be in writing and in English addressed to the addressee at the address of that party stated in the Purchase Order or as subsequently notified by that party. Notices may be delivered by hand, by mail or by facsimile transmission. Notices will be deemed given:
(a) in the case of hand Delivery, on the date of Delivery as evidenced by a written acknowledgement of receipt by an authorised employee, agent or representative of the addressee;
(b) in the case of posting, 2 Business Days after posting if posted within Australia or 5 Business Days after posting if posted from or to a place outside Australia; and
(c) in the case of facsimile, at the time of transmission (as evidenced by a successful transmission report from the sender’s machine) if the transmission was made before 5.00pm (addressee’s local time) on a Business Day or otherwise at the commencement of the first Business Day following transmission.
17.10 No Set-off: The Buyer may not withhold any payment due under the Contract (including without limitation payment of the Price) or set-off or deduct all or any part of a payment against any amount claimed by the Buyer from TBS, for any reason (including by way of counterclaim).
17.11 Time: Time is of the essence under the Contract in respect of any obligation of the Buyer.
17.12 Convention: The operation of the United Nations Convention on Contracts for the International Sale of Goods, adopted at Vienna, Austria on 10 April 1980 is excluded.
In these Terms:
Action means any claim, action, suit, proceeding or demand.
Business Day means a day other than a Saturday, a Sunday or a public holiday in the place where a thing must be done, or a payment made under the Contract.
Buyer means the buyer of the Goods or Services specified in the Purchase Order and, wherever the context permits, includes its officers, employees, servants, agents, assigns, contractors, carriers and any persons claiming through, under or in trust for the Buyer.
Contract means the contract formed by TBS’s written acceptance of the Purchase Order by the Buyer for the purchase of the Goods and, if applicable, the provision of the Services, together with and subject to the Terms.
Damage means loss, theft, damage, destruction or defacement.
Dangerous Goods Regulations means the Dangerous Goods Safety Act 2004 (WA) and Dangerous Goods Safety (Explosives) Regulations 2007 (WA) or other state or territory equivalent, the Australian Dangerous Goods Code, the Australian Code for the Transport of Dangerous Goods by Road and Rail and all other laws and regulations governing the possession, transportation, supply or usage of dangerous goods.
Delivery means the delivery of the Goods to the Delivery Address or the collection of the Goods by the Buyer from TBS’s premises, as applicable.
Delivery Address means the Delivery address stated in the Purchase Order or, if no address is stated, TBS’s premises at which the Goods are located (or will be located immediately prior to Delivery).
Delivery Date means the date for Delivery stated in the Purchase Order or as advised by TBS.
Entire Agreement: The Contract constitutes the entire agreement between the parties in relation to its subject matter and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
Force Majeure means a circumstance beyond the reasonable control of a party, which results in the party being unable to observe or perform on time an obligation under the Terms.
Goods means the goods specified in the Purchase Order and includes any containers, drums, cylinders and other storage vessels in which the Goods are stored, including all Returnable Containers.
TBS means TBS Mining Services Pty Ltd (ACN 169 067 252) and, wherever the context permits, includes its officers, employees, assigns, contractors, agents and any persons claiming through, under or in trust for TBS.
Intellectual Property Rights means any and all registered and unregistered intellectual property rights throughout the world including without limitation, all copyright, trade secrets, patents, patent applications, trademarks, domain names, business names, designs and circuit layout rights.
Loss means any loss, damage, expense, payment or liability, whether direct or indirect, and includes consequential loss, damage or expense (including but not limited to loss of profit or revenue, loss of market, loss of contracts or damage to commercial reputation).
Price has the meaning given in clause 4.1.
Purchase Order means:
(a) the purchase order in the form attached to the Terms, issued by TBS, signed by the Buyer and accepted by TBS; or
(b) a purchase order substantially in the form attached to the Terms, issued by the Buyer and signed by both the Buyer and TBS.
Return Address means the return address stated in the Purchase Order or, if no address is stated, TBS’s premises at which the Returnable Containers were located immediately prior to Delivery.
Return Date means the return date stated in the Purchase Order or as advised by TBS.
Returnable Containers means the containers, drums, cylinders and other storage vessels in which the Goods are delivered, which are provided by TBS to the Buyer on a returnable basis and for which a deposit or rental charge is payable.
Services means the services (if any) specified in the Purchase Order.
Terms means these terms and conditions of sale and any additional terms and conditions stated in the Purchase Order and accepted by TBS, including any variations agreed by the parties in writing or made by TBS under clause 17.8.
19.1 In the Contract, unless the context requires otherwise:
(a) the singular includes the plural and vice versa;
(b) a reference to one gender includes any other gender;
(c) a reference to a person includes a company, body corporate and partnership as well as a natural person;
(d) obligations and warranties on the part of two or more persons bind them jointly and severally;
(e) a reference to a month or year is to a calendar month or year; and
(f) a reference to “$” or “dollars” is to Australian dollars.
The Purchase Order forms part of the Contract but only after the Contract comes into effect in accordance with clause 1.3.