Effective from 1st October 2018

1. GENERAL CONDITIONS
1.1 Supply of Goods may only be made against the purchase order attached to these terms and conditions “Order”. The Order is an offer by Stirlings Performance Steels Pty Ltd (ACN 625 765 200) trading as Stirlings Performance Steels which may be accepted by the Supplier by communicating acceptance to Stirlings Performance Steels, for supply of Goods or preparation for supply of the Goods (when communicated to Stirlings Performance Steels). The Order supersedes all other arrangements and all prior communications and will be the sole and exclusive agreement between the parties. Terms or conditions in any quotation, confirmation or acknowledgment to the Order sent by the Supplier will not apply.

1.2 By accepting the purchase order, the Supplier agrees to Stirlings Performance Steels’ Term and Conditions of Purchase of goods and services, irrespective of whether the Supplier returns a signed copy of the Purchase Order to Stirlings Performance Steels. Further, by accepting our Purchase Order, there is a contract on this basis and any terms and conditions in your quote, offer document, order acceptance or any other document you supply are excluded from the contract and will have no legal effect.

1.3 The terms and conditions relating to the Order will comprise these terms and conditions, the terms set out in the Order and any attached specification or other documents attached or referred to in the Order “Specification”.

1.4 Where the Order includes a term defined in the latest Incoterms publication, the rules and definitions applicable to that term in the latest Incoterms publication will apply, except to the extent that they conflict with any other provisions of the Order.

1.5 The Order will be void 6 months after the date of the Order unless otherwise stated on the Order. No cancellation or variation of the Order (including any deviation or amendment to the Specification or the price for the Goods) will be binding on Stirlings Performance Steels unless made in writing by any authorized purchasing officer of Stirlings Performance Steels. The Supplier must supply the Goods to Stirlings Performance Steels pursuant to the Order.

2. COMPLIANCE WITH SPECIFICATION & LEGAL REQUIREMENTS
All Goods supplied under the Order must be fit for the purpose for which they are to be used and must strictly comply with the Specification and all Legal Requirements. “Legal Requirements” means any law, regulation, standard or code of practice governing the production, manufacture, packaging, storage, marketing and delivery of the Goods.

3. PRICE AND PAYMENT
The price for the Goods is set out in the Order. Unless otherwise stated, the price is a fixed price and is not subject to variation without Stirlings Performance Steels’ prior written approval. Unless otherwise stated in the order all invoices will be paid (except to the extent that an invoice is in dispute) within 60 days after the end of the month in which Stirlings Performance Steels accepts the Goods and/ or receives the Supplier’s invoice, whichever is the later.

The Supplier is liable for payment of (and will not pass on as part of the price for the Goods) any taxes, levies, charges, imposts and duties imposed or assessed on the Goods by any governmental, statutory or other authorities. If any taxes, imposts or duties are imposed or assessed the Supplier must pay the full amount to the relevant authority and indemnifies Stirlings Performance Steels against any failure to do so. The Supplier’s invoice will comply with the provisions of “A New Tax System (Goods and Services Tax) Act 1999” “The Act” and shall be Tax Invoices as defined in that Act.

4. DELIVERY AND INSURANCE
4.1 The Goods must be delivered to Stirlings Performance Steels in accordance with the Order at the delivery location nominated in the Order. Stirlings Performance Steels may without liability cancel the Order or any part of it if the Goods are not delivered to the nominated delivery location by the delivery date nominated in the Order. Time will be of the essence for the purposes of this condition. Should the supplier not comply with order delivery, then Stirlings Performance Steels may, upon providing written notice to the supplier, purchase goods specified in the order from an alternative supplier and where a price variation greater than the original order price is paid, Stirlings Performance Steels shall demand the variation from the supplier and the supplier shall forward payment to Stirlings Performance Steels.

4.2 Stirlings Performance Steels maintain an insurance policy covering the Goods for their full insurable value against loss, damage or theft, including loss, damage or theft in transit, from the point where the Supplier’s delivery responsibilities cease and Stirlings Performance Steels delivery responsibilities commence, as set out in the Order.

4.3 Supplier must effect and maintain an insurance policy covering the Goods for their full insurable value against loss, damage or theft, including loss, damage or theft in transit, up to the point where the Supplier’s delivery responsibilities cease and Stirlings Performance Steels delivery responsibilities commence, as set out in the Order.

4.4 Unless stated otherwise in the Order, the Goods must be delivered Free Into Store, (D.D.P. as per the latest Incoterms publication to the nominated delivery location.

4.5 Goods will not be accepted by Stirlings Performance Steels unless accompanied by a delivery docket or packing list quoting the Order number, specification, description and quantity of the Goods

4.6 The supplier shall provide Stirlings Performance Steels with timely delivery communication and information. The supplier shall take all reasonable steps to avoid the delay of Goods and Services and must immediately advise Stirlings Performance Steels of any actual or potential delays in delivery.

5. CARTAGE AND PACKING
The Goods must be suitably packaged and weather sealed for (as the case may be) long distance sea, road or rail transport to the delivery location and to provide maximum protection for the Goods in handling and storage so as to ensure they are within Specification when delivered to the delivery location. The Order number must be clearly marked on the outside of the packaging together with any other information required by Stirlings Performance Steels.

6. VARIATIONS
6.1 Stirlings Performance Steels may request a variation to the Goods by giving written notice to the Supplier

6.2 The Supplier will notify Stirlings Performance Steels of any price variation of the Goods

6.3 Stirlings Performance Steels will advise in writing if the variation is to proceed

7. PASSING OF TITLE AND RISK
Subject to rejection of the Goods pursuant to condition 9.0, title to and risk in the Goods purchased pursuant to the Order will pass to Stirlings Performance Steels upon acceptance of the Goods by Stirlings Performance Steels. Signed delivery documentation is not acceptance by Stirlings Performance Steels of the Goods delivered, but is evidence of the number of packages or cartons delivered.

8. INSPECTION AND AUDIT OF GOODS
Stirlings Performance Steels may inspect and test the Goods to determine whether they comply with the Specification. In addition, Stirlings Performance Steels reserves the right prior to acceptance of any consignment of Goods:

8.1 To sample and visually inspect any consignments of Goods on receipt for conformance with the specification, including without limitation, carton sealing, date coding, labelling, the existence of dirty, rusty or damaged packaging and overall fitness for intended purpose;

8.2 If the Goods are in protective packages, to open and inspect them as they are used;

8.3 To require the Supplier to send all certificates of analysis, documents relating to the identity and quality of Goods to an authorised purchasing representative of Stirlings Performance Steels prior to arrival of the consignment at the delivery location; and

8.4 To audit the quality system of the Supplier and inspect the production of Goods at Supplier’s works using recognised auditing procedures (in which case the Supplier will provide such information and access necessary for Stirlings Performance Steels’ inspection).

8.5 No inspection, review or audit of the Goods or related documentation by Stirlings Performance Steels in any way alters the Supplier’s responsibility to comply with the Order.

9. REJECTION OF GOODS
9.1 Stirlings Performance Steels reserves the right to reject any or all of the Goods the subject of the Order where, after undertaking its inspection process Stirlings Performance Steels determines that the Goods are defective or do not comply with the Order.

9.2 To the extent that Stirlings Performance Steels rejects any consignment of Goods or part of a consignment of Goods, the Order will be treated as not being satisfied. The Supplier must give Stirlings Performance Steels full credit for the price of the Goods and all transport charges for shipments, return, labour, reloading, transportation and incidental expenses. The Supplier must not replace rejected Goods unless it receives written instructions from Stirlings Performance Steels to do so. Stirlings Performance Steels will consult with the Supplier prior to rejecting any of the Goods.

9.3 All monies paid by Stirlings Performance Steels to the Supplier prior to inspection and acceptance of the Goods will be deemed to have been paid conditional upon, and subject to, the Goods being free of any defects and acceptance of the Goods.

10. ACKNOWLEDGMENTS, WARRANTIES AND INDEMNITIES
The Supplier warrants to Stirlings Performance Steels in respect of the Goods that:
10.1 The Supplier is aware of the purpose for which Stirlings Performance Steels is acquiring the Goods, that the Goods will be at the delivery date and will remain fit for that purpose;

10.2 The Goods will be at the delivery date and will remain in good and merchantable quality and free from all defects;
The Goods will conform at the delivery date and will remain in all respects within the Specification and will comply with the functional and performance criteria set out in the Order;

10.3 The Goods will comply with all Legal Requirements and will pass to Stirlings Performance Steels upon delivery and acceptance free and clear of all security interests and other encumbrances;

10.4 Stirlings Performance Steels will have the full benefit of any manufacturer’s warranties that apply to the Goods or any part of the Goods (or any of their component parts);

10.5 The Goods do not infringe any patent or other intellectual property rights of any third party; and

10.6 All relevant consumer safety standards relating to the Goods have been complied with.

10.7 The above warranties apply and continue to apply regardless of whether the Goods comply or do not comply (as the case may be) with the Order and even though Stirlings Performance Steels may examine or may have had the opportunity to inspect or test the Goods or part of the Goods and irrespective of whether or not the examination reveals or ought to have revealed the existence of defects.

10.8 In addition to Stirlings Performance Steels rights under condition 9.1 to reject the Goods, if the Goods are found to be defective for any reason within the warranty period specified in the Order (if no such period is specified or not agreed by Stirlings Performance Steels the warranty period will be 2 years from the date of delivery “Warranty Period”) Stirlings Performance Steels will be entitled to return the defective goods to the Supplier and at the Supplier’s expense the Supplier will (at Stirlings Performance Steels’ option) either replace or repair the Goods or reimburse to Stirlings Performance Steels the cost of replacing or repairing the Goods. Where the Supplier replaces or repairs any Goods the Supplier will bear all associated costs including but not limited to the removal and transportation costs, labour costs and the costs of replacing or providing new parts for the Goods. Any repaired or replaced Goods will be covered by the same warranty period commencing on the date the Goods are replaced or repaired. This condition will apply in respect of repaired or replaced Goods.

10.9 The above provisions do not in any way restrict or diminish any other rights or remedies that Stirlings Performance Steels may have in respect of the Goods and are in addition to any other warranties or conditions whether express or implied or whether granted by statute or otherwise.

10.10 The Supplier must indemnify and keep Stirlings Performance Steels indemnified against any action, claims, damages, loss or liability arising out of any defects or impurities in the Goods, any Goods not complying strictly with the Order, any claim arising by reason of the use of the Goods, and/ or any breach of any of these conditions or any warranty given by the Supplier expressly or by operation of any Legal Requirement in respect of the Goods.

11 FORCE MAJEURE
11.1 “Force Majeure Event” means any event or cause which is beyond the reasonable control of a party and which could not reasonably have been foreseen and guarded against by that party and which prevents or impedes performance under these terms and conditions and includes, but not limited to, fires, floods, earthquakes, storms and other disturbances caused by the elements, strikes, lockouts, riots, explosions, governmental action, insurrection or war.

11.2 Where Stirlings Performance Steels or the Supplier is unable, wholly or in part, by reason of a Force Majeure Event to carry out any obligation under these terms and conditions, the other party shall be given immediate written notice of the Force Majeure Event, using all reasonable diligence to remove the Force Majeure Event as quickly as possible, subject to condition 10.4 that obligation is suspended so far as it is affected by the Force Majeure Event during its continuance.

11.3 If by reason of the Force Majeure Event, the Supplier cannot meet its obligations under the Order, Stirlings Performance Steels may contract with a third party to supply the Goods for the period of the Force Majeure Event. To the extent that Stirlings Performance Steels is supplied with Goods by such third party, Stirlings Performance Steels will not be obligated to take or pay for those Goods if delivered by the Supplier on the cessation of the Force Majeure Event.

11.4 If by reason of the Force Majeure Event, the delay or non-performance of the relevant party’s obligations continue for more than 20 days, the party not relying on the Force Majeure Event may terminate the Order by written notice to the other party.

12. TERMINATION
Either party may terminate the Order, with immediate effect, by notice in writing to the other party, upon the occurrence of one of the following events:

12.1 An order is made to wind up the other party or the other party goes into liquidation, receivership or some other similar form of insolvency administration, whether voluntarily or otherwise; and

12.2 If the other party has committed a breach of any term of the Order and fails to rectify such breach within 7 days of service of written notice requiring rectification of the breach.

12.3 Stirlings Performance Steels may in its discretion terminate the Order without reason upon 7 days written notice to the Supplier. In the event of termination of the Order for any reason and by either party, Stirlings Performance Steels is not liable to pay any damages, compensation or reimbursement for any work performed or expense incurred by the Supplier after the date of termination and any cost, charge or expense, or loss of profit or other economic loss of any kind arising from or consequential upon such termination;

12.4 Stirlings Performance Steels and the Supplier will immediately pay to each other all other amounts due under this agreement;
Stirlings Performance Steels may refuse to accept or return to the Supplier any delivery of Goods after the date on which termination occurs; and the Supplier will waive any claim for loss or damages including loss of anticipated profits on account of termination.

13. DISPUTE RESOLUTION PROCEDURE
13.1 Prior to commencing any adversarial proceedings for a resolution of a dispute concerning any aspect of the Order “Dispute”, Stirlings Performance Steels and the Supplier must, through their representatives, negotiate in good faith the resolution of that Dispute over a period of at least 21 days following one party notifying the Dispute to the other by written notice. If Stirlings Performance Steels representative and the Supplier’s representative fail to resolve the Dispute within that period it must be referred to the chief executives of Stirlings Performance Steels and the Supplier who must, within 14 days of the Dispute being referred to them, communicate and negotiate over a period of not more than 14 days, the resolution of the Dispute.

13.2 If after the procedures in condition 13.1 have been completed the Dispute has not been resolved by negotiation, the parties will be at liberty to commence adversarial proceedings to resolve the Dispute and the parties agree to submit to the exclusive jurisdiction of the courts of Western Australia. If the parties agree in writing that the Dispute may be referred to arbitration the arbitration must be conducted before a single arbitrator in accordance with and subject to the laws of Western Australia and to the following:
• An arbitrator will be appointed by agreement between the parties or, failing agreement, by the Chairman for the time being of the Western Australia Chapter of the Institute of Arbitrators Australia;
• Arbitration must be conducted in accordance with that Institute’s Rules for the conduct of commercial arbitrations; and
• Any negotiation and any arbitration meetings and proceedings must be held in Perth or at such other venue in Western Australia as the parties may agree. No Dispute entitles either party to fail to comply with the Order.

14. GENERAL
14.1 The Supplier may not assign the benefit of the Order or otherwise subcontract its performance without the prior written consent of Stirlings Performance Steels, such consent not to be unreasonably withheld.

14.2 All Orders are governed by the laws in force in Western Australia.

14.3 The failure of any party to enforce any of its powers, remedies or rights under the Order will not constitute a waiver of those powers, remedies or rights.

14.4 The Supplier must keep secret and confidential and must not disclose to any third party without the prior written approval of Stirlings Performance Steels any information supplied or made available by or on behalf of Stirlings Performance Steels to the Supplier in connection with any Order.

15. INTERPRETATION
In the Order, unless the contrary intention appears:
Words denoting the singular include the plural and vice versa;
All amounts payable under this agreement must be paid in, and a reference to $ or dollars is a reference to, Australian currency, unless specifically noted otherwise in Stirlings Performance Steels’ Order; and including and similar expressions are not and must not be treated as words of limitation.
 
16. DEFINITIONS
• Parties and items detailed in these terms and conditions shall be understood, as follows:
• Stirlings Performance Steels – Stirlings Performance Steels Pty Ltd trading as Stirlings Performance Steels
• Supplier - Any person or company accepting Stirlings Performance Steels official purchase order to provide goods or services, as per details and instructions accompanying such a purchase order.
• Order - Stirlings Performance Steels official purchase order, reference number, details and instructions, including these terms and conditions and any additional conditions that may apply or may be contained within the purchase order, provided to a supplier for the purpose of procuring specific goods and or services.