1. DEFINITIONS
The following words shall, where the contents so permit have the following meanings:
'Cancellation Costs' means the costs payable by the Purchaser pursuant to clause 6.
'Cancellation Date' means the date the Supplier receives a notice in writing from the Purchaser cancelling a Purchase Order pursuant to clause 6.
'Duty' means any sales tax, GST. duty, excise or other similar tax or charge.
'Merchandise' means all goods, chattels. plant, equipment, machinery stores and the like ordered pursuant to this Contract.
'Order' means the order placed by the Supplier to purchase the Merchandise on the terms and conditions contained in this Contract.
'Purchase Order' means the form of the Order including (but not limited to) the terms and conditions contained in this Contract.
'Purchase Order Amendment Form' means the form provided by the Purchaser to be used by the Supplier when the Supplier wishes to amend the quantity or quality of the Merchandise specified in any Purchase Order.
'Purchaser' means Saracen Gold Mines Pty Ltd and / or Saracen Mineral Holdings Limited.
'Seller' means the person, firm or corporation from whom the Merchandise is being purchased pursuant to this Purchase Order.
'Tender Documents' means any documents exchanged between the parties in respect of the Order.
2. ENTIRE CONTRACT
The Purchase Order, together with all attached documents, other documents referred to in the Purchase Order
and any Tender Documents (the 'Purchase Order Document') constitute the entire terms and conditions of the Contract.
3. DELIVERY
The Supplier shall deliver the Merchandise to the destination specified in the Purchase Order Document.
4. PAYMENTS
Payments by each party shall be made in accordance with the Purchase Order Document.
5. INVOICES
5.1 Any invoice issued by the Seller to the Purchaser for this Contract must show the name of the project or other destination to which the Merchandise was delivered or shipped.
5.2 Any Duty applicable to this Order, which the Purchaser has not paid (or has agreed to furnish an exemption certificate for) must be shown separately on the Seller's invoice and where relevant shall include any necessary tax certificate.
6. CANCELLATION
6.1 The Purchaser may cancel any Purchase Order in writing if (as at the Cancellation Date) the relevant Merchandise has not been delivered to the destination specified in this Contract, or is not it in transit.
6.2 Provided that the Seller is not in default under this Contract, the Purchaser shall pay to the Seller the Cancellation Costs. Upon
such payment, title to the Merchandise (in its state at that time) under the cancelled Purchase Order shall pass to the Purchaser. The Purchaser shall then be wholly responsible for any collection or delivery of that Merchandise.
6.3 The Cancellation Costs are calculated as follows:
(a) all costs incurred by the Supplier directly in connection with the cancelled Purchase Order prior to the Cancellation Date; or
(b) if the costs in clause (a), when added to all previous payments made or which are payable under this Contract by the Purchaser as at the Cancellation Date, exceed the total purchase price specified in the Purchase Order then the Cancellation Costs in (a) are reduced by the excess.
7. INSPECTION IN PROGRESS
7.1 The Seller agrees that the Purchaser (or its designated agents) shall have the right to inspect all work to be performed by the Seller (including its agents or subcontractors) pursuant to this Contract (`Work') at any stage. The Seller shall make this a condition of any subcontracted work.
7.2 The Purchaser (or its designated agents) shall have the power to reject any Work performed or being performed that does not comply with this Contract. Any Work rejected on this basis shall be redone or remedied in accordance with the Contract at no additional cost to the Purchaser.
7.3 Any inspection or lack of such inspection under this clause 7 shall not relieve the Seller of any obligation contained in this Contract.
8. QUANTITY AND QUALITY
8.1 The Merchandise delivered to the Seller must be of the quantity and quality specified in the Contract including any specifications in
this Purchase Order Documents.
8.2 If the Seller has provided the Purchaser with a Purchase Order Amendment Form the Merchandise delivered must be of the quantity and quality specified in the Purchase Order Document as varied by that Form.
8 3 The Purchaser may return quantities supplied to the Purchaser, in excess of the quantity specified in the Purchase Order Document to the Seller at the Seller's expense.
9. PRICES
Unless otherwise specified in this Contract, all prices stated in the Purchase Order are final and not subject to escalation or any increase.
10. TRANSPORTATION
10.1 Within 30 minutes of the Seller dispatching the Merchandise, the Seller shall notify the Purchaser of:
(a) the date and time of dispatch;
(b) the number of the Order;
(c) the kind and amount of the Merchandise dispatched;
(d) the route and method by which the Merchandise well be transported as specified in the Purchase Order Document. If the method or transport is not specified, then the Merchandise shall be delivered in a proper and suitable manner in accordance with best industry practices for carriers.
10.2 The Purchaser and Seller agree to assist each other in obtaining documents and other information desirable for any potential claims or litigation against carriers delivering the Merchandise.
11. PROPERTY IN MERCHANDISE
11.1 Subject to the Purchaser exercising its rights of rejection under clause 12:
(a) full title and interest in the Merchandise shall pass to the Purchaser on delivery to the place specified in the Purchase Order Document: or
(b) where any part payment for the Merchandise is made by the Purchaser, the title to the merchandise (Including any
components or parts to be used in its manufacture and then on hand) shall pass to the Purchaser. The Merchandise shall be accordingly marked. The risk of the Merchandise shall remain with Seller until delivery.
12. INSPECTION OF MERCHANDISE
12.1 The purchase of all Merchandise is subject to inspection and testing by the Purchaser after delivery and unpacking at the
destination specified in the Purchase Order Document. It the Merchandise is to be installed or incorporated into a plant or
premises such inspection and testing may be carried out after installation or incorporation.
12.2 If upon or after any such inspection or test pursuant to this clause 12 if any Merchandise is in the Purchaser's reasonable opinion:
(a) defective,
(b) of inferior quality or workmanship: or
(c) fails to meet the specifications or any other requirement of this Contract, the Purchaser may (without prejudice to any other rights or remedies it might have) return that Merchandise to the Seller at the Seller's expense.
12.3 If any Merchandise is returned pursuant to this clause 12, the Seller shall, within 7 days of receiving the returned Merchandise, reimburse the Purchaser for:
(a) any part of the purchase price paid by the Purchaser for the returned Merchandise;
(b) any other cost, expense, or damage incurred by the Purchaser in connection with the delivery or return of the returned
Merchandise; and
(c) any other cost, expense, or damage incurred by the Purchaser as a result of a failure by the Seller to comply with the terms or
conditions of this Contract.
13. ASSIGNMENT
The Seller shall not subcontract or otherwise assign the benefit or the burden (or both) of the Contract or any part thereof without the Purchaser's prior written consent. Such consent will be at the Purchaser's absolute discretion.
14. WAIVER
No waiver by either party (including its servants or agents) of any breach of any term or condition of this Contract shall constitute or be construed as a waiver of any other breach of such term or condition or any other breach.
15. ENGINEERING DATA
The Seller shall furnish all engineering and other data required to be supplied to the Purchaser in accordance with the Purchase Order Document within the time stated in the Purchase Order Document.
16. DEFAULT BY SELLER
If the Seller breaches any of the terms or conditions of this Contract (inducting the Seller's warranties specified in clause 17) the Purchaser may, in its absolute discretion, terminate the Contract by giving the Seller written notice to that effect. If the Purchaser terminates the Contract pursuant to this clause 16, the Contract shall be cancelled from the date the relevant notice was given (but without prejudice to any other rights or remedies that the Purchaser may have under the Contract).
17. WARRANTY
In addition to any warranty or service guarantee contained in this Contract or implied by law, the Seller specifically warrants that the
Merchandise:
(a) conforms to all descriptions and specifications of the Merchandise in the Contract;
(b) shall be of good merchantable quality and fit for the known purpose for which it is sold,
(c) is new (unless otherwise specified): and
(d) is free from all liens and encumbrances and that the Seller has good title thereto.
18. PATENTS. TRADEMARKS AND COPYRIGHT
18.1 The Seller warrants to the Purchaser that the manufacture, sale or use of the Merchandise does not infringe or contribute to the infringement of any patents, trademarks, designs or copyrights in Australia or in any other country; and
18.2 The Seller agrees to indemnify and keep indemnified the Purchaser against any loss or damage (including legal fees and costs on
a solicitor and client basis) arising from any breach of this clause 18.
19. INFORMATION
19.1 Any engineering, non public or proprietary information provided to the Seller by the Purchaser concerning its operations or affairs,
or any other documents prepared by the Purchaser (including its subcontractors and agents based on this information) is
confidential and shall not be disclosed by the Seller to any third person without the prior written consent of the Purchaser.
19.2 Unless otherwise provided in the Purchase Order Document, all plans, drawings, and specifications prepared or supplied by or on behalf of the Purchaser (including its agents and subcontractors) and any patterns made therefrom shall be and remain the property of the Purchaser. These documents shall be used by the Seller only in performance of this Contract and shall be returned by the Seller on completion of the Purchase Order.
20. LICENCES
Unless otherwise specified in this Contract, the Seller (including its agents and subcontracts) shall:
(a) obtain at its cost all requisite licenses, permits and authorities required in performance of this Contract;
(b) comply with all applicable laws and regulations in performing it obligations under this Contract including the manufacture and
(where applicable) installation of the Merchandise.
21. THE TERMS OF THIS ORDER PREVAIL
21.1 In the event of inconsistency between the Purchase Order and the Seller's estimate, tender or delivery documents, the Purchase
Order prevails.
21.2 Conditions contained in any written acceptance by the Seller of this Purchase Order shall not form part of the Contract unless the
Purchaser expressly accepts them by a separate written notice.
22. STANDARD CONDITIONS FOR ON SITE WORK
Where this Contract requires the Seller to undertake Work on land or premises occupied by the Purchaser, the Seller must observe the Purchaser's 'Standard Conditions for On Site Work' (a copy of which will be given to the Seller before entering the relevant site).
23. CUSTOMS DUTY
Any reduction in the amount of customs duty actually paid, or any refunds of customs duty received shall be to the Purchaser’s account.
24. TIME
The time stipulated for delivery of the Merchandise shall be the essence of the Contract.
25. GOVERNING LAW
This Contract shall be governed and construed with reference to and in accordance with the laws for the time being in force in the State of Western Australia and the parties hereby submit to the non exclusive jurisdiction of the Court of that State.
26. SEVERANCE
If any provision contained in this Contract is void, illegal or unenforceable, then that provision shall (without in any way affecting the validity, legality and enforceability of the remainder of the Contract) be severed from the Contract and the Contract shall read and take effect for all purposes as if that provision were not contained in the Contract.
