Terms & Conditions

1. Application of these Standard Terms and Conditions

1.1 These Standard Terms and Conditions apply to the Contract entered into between the Buyer and the Seller ("Marnco Pty Ltd"), (each a "Party" and together "the Parties").

1.2 The Parties may vary the terms and conditions in the Contract by agreeing the variations in writing ("Varied Terms").

1.3 The Contract comprises: (i) the Contract Confirmation; (ii) the Standard Terms and Conditions; and (iii) any Varied Terms. In the event of any conflict between any of the Contract Confirmation, the Standard Terms and Conditions and any Varied Terms, the following shall prevail in order of precedence: (a) any Varied Terms; (b) the Contract Confirmation; and then (c) these Standard Terms and Conditions.

1.4 If at any time any term of the Contract is or becomes illegal, invalid or unenforceable in any respect under the law of any relevant jurisdiction, it shall be read down to the extent necessary or, if necessary, severed from the Contract in order for the remaining terms of the Contract to remain in force and effect.

2. Contract Confirmation

2.1 Within twenty-four (24) hours of receipt of the Contract Confirmation, the Buyer must review the terms of the Contract Confirmation carefully and notify the Seller if in its view any of the terms of the Contract Confirmation are not acceptable, or that there are discrepancies between the Order and the Contract Confirmation, and failing such notification the Contract is to be valid and binding upon the Parties.

3. Quantity

All quantities of Product will be expressed in the Contract in metric tonnes.

4. Variance of Product

4.1 The Seller will have the option of varying the Quantity of Products by the agreed amount stated at Tolerance in the Contract Confirmation to cater for any logistical issues on delivery of the Products (such as truck size limits).

4.2 If the Contract Confirmation does not specify a Tolerance figure, then, unless otherwise agreed in writing, the Seller will have the option to vary the Quantity of the Product by up to (the lesser of): (a) twelve tonnes; or (b) five percent (5%) of the total Quantity for that Product.

4.3 Where the Quantity Delivered differs to the Quantity specified in the Contract Confirmation, the Price will be adjusted in accordance with the variation in Quantity on a pro-rata basis.

5. Weights

5.1 The Quantity Delivered weight used to calculate the Price will be determined by the Seller.

5.2 The Seller will, at its discretion, determine the actual Quantity Delivered at the loading point or at a government or registered weighbridge.

6. Delivery

6.1 Unless otherwise expressly specified in the Contract Confirmation, all Products will be Delivered to the Buyer Ex Works with the Buyer to arrange for the collection on an evenly spread basis during the Delivery Period, loading and transportation of the Product within the Delivery Period. The Buyer shall be responsible for all such costs and risk.

6.2 Any time or date quoted by the Seller for availability of Products Ex Works is an estimate only. The Seller shall not be liable for any loss or damage, howsoever arising, as a result or consequence of any failure to supply all or part of the Products on a particular date or at a particular time, whether Ex Works or otherwise.

6.3 Where specified in the Contract, Delivery may be by instalments.

6.4 The Buyer may, not less than 14 calendar days prior to the end of the Delivery Period, request an extension to the Delivery Period, in which case the Seller may at its sole discretion agree to such request.

6.5 If the Buyer fails to take Delivery of any Product before the end of the Delivery Period, including any extension as per Clause 6.4 ("Uncollected Product"), then the Seller may, without prejudice to any other right or remedy of the Seller under this Contract, extend the Delivery Period for some or all of the Uncollected Product by giving notice to the Buyer of such extension no later than 7 calendar days after the end of the original Delivery Period.

6.6 Where Clause 6.5 is invoked, the Buyer must pay to the Seller, a carry/storage charge of $10 per tonne of Product that has not been collected by the Buyer within the original Delivery Period per calendar month, (or pro-rata thereof), from the end of the Delivery Period until collection of the Product by the Buyer.

7. Delinquent Payments

7.1 If a payment from the Buyer to the Seller is overdue in respect of any other transaction between the Buyer and the Seller ("Delinquent Amount"), the Seller shall be entitled to withhold Delivery of any Product ordered by the Buyer until the Buyer has paid the Seller the Delinquent Amount in full and without set-off.

7.2 Without prejudice to any rights and remedies the Seller may have, if the Delinquent Amount is not paid within three (3) Business Days from the beginning of the agreed Delivery Period, the Seller will be entitled to terminate the Contract and the Buyer shall be deemed to be in default and the provisions in Clause 15 shall apply.

8. Overdue Amounts

8.1 If the Seller has not received payment in full as cleared funds from the Buyer for the Products in accordance with the payment terms stated in the Contract ("Overdue Amount"), without limiting any other rights of the Seller, the Seller may at its option: (a) withhold Delivery of the Products; (b) charge interest on the Overdue Amount; and (c) terminate the Contract.

8.2 The rate of interest shall be calculated daily at a rate which is six percentage points above the 90-day bank bill rate published by National Australia Bank from time to time.

8.3 Any costs of collecting Overdue Amounts (including reasonable legal costs) are recoverable from the Buyer by the Seller.

9. Ownership and Passing of Title

9.1 Unless otherwise stated in the Contract: (a) Risk in the Product(s) passes to the Buyer at the time of Delivery; and (b) Title to the Product(s) shall remain with the Seller until the later of: (i) payment of the Price has been received by the Seller from the Buyer for the Product(s); or (ii) at the time of Delivery.

10. Personal Property Securities

10.1 The Buyer acknowledges that the Contract entered into between it and the Seller in connection with any Product(s) supplied does constitute a security agreement for the purposes of section 20 of the PPSA and that a purchase money security interest exists in the Product(s) (and their Proceeds) previously supplied by the Seller to the Buyer.

11. Buyer's Acknowledgement

11.1 Other than for Products that are in liquid form, the Buyer acknowledges that the Product consists of variable sized material and may segregate when unloaded into storage.

11.2 The Seller will not be liable to the Buyer in respect of Product quality changes as a result of segregation, whether occurring during Delivery or otherwise.

12. Warranty

12.1 The Buyer hereby warrants that it has relied solely on its own skill and judgement in selecting and purchasing Products and has not relied on any representation or warranty made by or on behalf of the Seller.

12.2 Except to the extent expressly required by law, the Seller makes no warranties or representations in relation to any goods or services supplied by the Seller other than those expressly agreed with the Buyer in writing.

13. Rejection of Product

The Buyer will inspect the Product on Delivery and will immediately notify the Seller in writing if in the Buyer's opinion the Product contains any defects. To the extent permitted by law, the Seller shall not be liable for any defects in the Product if the Buyer does not notify the Seller, in writing, within seven (7) calendar days of Delivery.

14. Liability

14.1 The Seller shall not under any circumstances be liable to the Buyer for any indirect, consequential, special or punitive damages, including but not limited to loss of revenue, loss of profits and loss of contract.

14.2 The Seller's maximum liability to the Buyer under or in connection with the Contract will be limited to the Price paid by the Buyer for that Product.

15. Default

15.1 A Party in default of any of its obligations under this Contract or who anticipates that it will default, must serve notice on the other party as soon as practicable.

15.2 The notice must state the date of default or anticipated default and the nature of and reasons for the default.

16. Payment Terms

16.1 "Cash Against Documents" or "CAD" means payment is due immediately upon receipt of appropriate documents and invoices. "Prompt Net Cash" means payment is due within five (5) Business Days from the date of invoice. "30 Days End of Week of Delivery" means payment is due by the 30th day after the end of the calendar week that the Products are Delivered.

16.2 The Buyer must pay the Price in accordance with the Payment Terms section of the Contract. If no terms are specified, the payment term will be deemed to be Cash Before Delivery.

17. Taxes, Ancillary Costs and GST

All amounts payable under a Contract do not include any amount on account of GST. If GST is payable on any supply made under or in connection with a Contract, the recipient of the supply must pay to the supplier an additional amount equal to the GST payable.

18. Notices

All notices given under these Sales Contract shall be given in writing delivered by hand, by post, by facsimile, or by email.

19. Force Majeure

Neither the Buyer nor the Seller shall be responsible for non-performance or delay in the performance of its obligations under this Contract occasioned by any matter not within the Buyer's or the Seller's reasonable control, including without limitation, any act of God, fire, flood, wind, explosion, power failure, war, embargo and/or governmental restriction, strike, lock-out, combination of workers, or civil commotion.

20. Disputes and Arbitration

If any dispute arises out of or relates to a Contract, the Dispute shall be submitted to and settled by arbitration in accordance with the Resolution Institute Rules.

21. Choice of Law

Each Contract shall be interpreted according to and governed by the laws in force in the state of New South Wales, and the parties submit to the non-exclusive jurisdiction of courts in that jurisdiction.

22. General

A Contract may only be varied in writing signed by both parties. The Contract constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings.