International terms and conditions
Rio Tinto Aluminium Limited agrees to sell to the buyer according to the General Conditions of Sale outlined below. By accepting the final price offered for Rio Tinto Aluminium Limited metal, the Customer is accepting these General Conditions of Sale.
These Conditions of Sale are not negotiable. Rio Tinto Aluminium Limited may alter, add or remove any Condition at any time, and will notify parties to which the Conditions apply at that time accordingly.
1. Governing terms and conditions
1.1 These terms and conditions of sale ("Conditions") and the attached Rio Tinto Aluminium Limited Sales Contract dated [insert date] ("Sales Contract") and Product Specifications constitute the entire agreement ("Agreement") between the seller ("Seller") and the buyer ("Buyer") with respect to the supply of the product described in the Sales Contract and Product Specification, and in the quantity stated in the Sales Contract attached to these Conditions ("Material"). All other terms, conditions and warranties are excluded including any other terms contained in the documents of the Buyer. 1.2 The Buyer confirms and acknowledges that by signing the Sales Contract, it has accepted this Agreement and agrees to be legally bound by this Agreement. 1.3 In the event of any inconsistency between the Conditions, the Sales Contract and the Product Specification, the Conditions prevail.2. Payment
2.1 Unless otherwise agreed, the Buyer must pay the Seller either:(a) by the Payment Due Date, which shall be the date specified in the Sales Contract as being the due date for payment; or
(b) immediately if the Seller considers that an event specified in clause 8.1 has occurred or is likely to occur.
2.2 If full payment is not made by the Payment Due Date, the Seller may charge interest from the Payment Due Date until full payment is made on the overdue payment at 2% per annum above the one month LIBOR rate quoted by Barclays Bank on Reuters page LIBO on the Payment Due Date.
2.3 Except as otherwise expressly provided in this Agreement, the parties shall bear their own expenses incurred in enforcing their respective rights under this Agreement.
3. Title
3.1 Title to and ownership of the Material and any products manufactured from the Material does not pass to the Buyer until all amounts owing by the Buyer to the Seller under this Agreement (and all cheques or negotiable instruments) have been paid (the "Relevant Date").3.2 If the Buyer sells the Material, or any products manufactured from the Material, before the Relevant Date, the Buyer's right to receive payment from its customer will be held on trust for the Seller.
3.3 The Buyer acknowledges that the Seller may be entitled under relevant law to register its interest in the Material as a security interest and may be required, for that purpose, to file financing statements necessary and other relevant information, as appropriate, in order to evidence the Seller's ownership of the Material. The Buyer further agrees to cooperate with the Seller to ensure that such financing statements are properly filed and/or recorded and to co-operate with the Seller, as necessary, to perfect or continue the perfection of its security interest.
4. Risk
4.1 Risk in the Material passes to the Buyer from the time of delivery. The Seller is not liable to the Buyer for any loss or damage or deterioration of the Material after delivery, even if the Seller arranges freight.4.2 Incoterms 2000 edition applies to matters not covered in this Agreement. In the event of any inconsistency between this Agreement and the Incoterms 2000, the Agreement prevails. The United Nations Convention on Contracts for the International Sale of Goods 1980 does not apply to this Agreement.
5. Limitation of liability
5.1 Any claim which the Buyer may have against the Seller under this Agreement is deemed to be waived unless the Buyer gives written notice of that claim to the Seller within 21 days after the Material is unloaded at the port of discharge and gives the Seller a reasonable opportunity to investigate the claim.5.2 Notwithstanding any provision of this Agreement to the contrary, the Seller's total aggregate liability to the Buyer in relation to a shipment of Material, whether arising out of or in connection with this Agreement, under statute, in tort (for negligence or otherwise) or any other basis in law or equity shall not exceed the purchase price of that shipment paid by the Buyer ("the Seller's Limitation"). The Seller shall have the option (in the absence of any alternative solution agreed between the parties) either of replacing Material or paying damages to the Buyer, damages which, depending on the Buyer's loss as determined by the Seller acting reasonably, may be less than the Seller's Limitation but which in any event shall not exceed the Seller's Limitation.
5.3 The Buyer shall exercise reasonable endeavours to mitigate any losses suffered, sustained or incurred which might be the subject of a claim by the Buyer against the Seller under this Agreement.
5.4 Notwithstanding any provision of this Agreement to the contrary , to the maximum extent permitted by law, the Seller is not liable for any consequential loss, loss of opportunity, loss of revenue, loss of profit or anticipated profit, loss of contract, loss of goodwill or loss arising from business interruption, special or contingent losses or damages whether arising out of or in connection with this Agreement, under statute, in tort (for negligence or otherwise) or any other basis in law or equity.
6. Warranties and Descriptions
6.1 The Buyer must accept the Material supplied under the Agreement if it is in accordance with the description stated in the Agreement and within the tolerances with regard to the quantity, weight, dimensions, chemical composition, physical properties and finish as specified in the Seller's Product Specifications attached to these Conditions, except where the Buyer, pursuant to clause 6.2, disputes that the Material supplied is within specification.6.2 For the purpose of clause 6.1, manifests and certificates of analysis that the Seller provides to the Buyer are deemed to be conclusive evidence of the matters stated in them except where the Buyer disputes the quality of the Material supplied as stated in the manifests and certificates of analysis ("Quality Dispute") by providing written notice of the Quality Dispute to the Seller within 21 days of delivery of the Material. The Seller and Buyer shall then exercise reasonable endeavours to resolve the Quality Dispute, failing which the Quality Dispute shall then be referred to an independent expert mutually agreed between the parties. Should the independent expert determine that the Material does not meet the Product Specifications, the Seller and Buyer shall exercise reasonable endeavours to reach agreement on possible solutions. If the parties fail to reach agreement within 60 days of the independent expert's decision, the Buyer may commence legal proceedings in an appropriate court.
The Seller and Buyer shall equally share the costs (including professional costs) of the independent expert incurred in determining any Quality Dispute arising from the parties' performance of this Agreement.
6.3 Subject to any written warranty provided by the Seller or any rights which cannot be excluded by law, the Agreement expressly excludes any warranties, conditions, liabilities or representations (express or implied) as to the quality of the Material or its fitness for any purposes (whether or not made known to the Seller). The Agreement is not a sale by sample.
6.4 The Seller warrants only that the Material conforms to the description stated in the Agreement (subject to the tolerances referred to in clause 6.1) and that it will give good title to the Material.
6.5 The Buyer warrants that by instructing the Seller to supply the Material under the Agreement it will not cause the Seller to infringe any letters patent, registered design, trade marks or trade names in the performance of the Agreement.
7. Indemnity
7.1 The Buyer indemnifies the Seller for all actions, claims, demands, liabilities, losses, damages, costs, charges and expenses ("Liabilities") suffered or incurred by the Seller as a result of any of the following:(a) the Seller's compliance with the Buyer's instructions regarding the Material;
(b) the Buyer's failure to provide or display safety information on or relating to the Material, comply with laws relating to the use, sale, marketing, labelling or marking of the 7.2 Material or detect and bring to the Seller's attention matters for which the Seller may become liable, whether for negligence, under legislation or otherwise;
(c) any statement the Buyer makes about the Material without the Seller's written approval;
(d) the use of the Material by the Buyer or a third party;
(e) the Buyer's negligence, wilful misconduct or breach of this Agreement; or
(f) any breach by the Buyer of the warranty set out in clause 6.5.
7.3 The Buyer agrees that:
(a) the Material is not of a kind ordinarily acquired for personal, domestic or household use or consumption; and
(b) the Buyer is acquiring the Material for resupply or for using it or transforming it in the course of a process of production or manufacture in the Buyer's business.
7.4 Each indemnity provided by the Buyer is a continuing obligation separate and independent from the parties' other obligations and survives the expiry or earlier termination of this Agreement.
8. Cancellation
8.1 The Seller may by written notice immediately cancel the Agreement for the delivery of any future instalment of Material and re-sell the Material and/or demand immediate payment of all amounts outstanding (whether or not then due and payable):(a) if the Buyer fails to perform or observe any material term of this Agreement (including payment terms);
(b) if the Buyer, in the reasonable opinion of the Seller, has unsatisfactory creditworthiness;
(c) if the Buyer has any of its property seized by a holder of any security; or
(d) if an Insolvency Event occurs with respect to the Buyer.
For the purpose of this clause, "Insolvency Event" means, in relation to a party:
(i) that party becoming insolvent or bankrupt,
(ii) the appointment of a liquidator, provisional liquidator or administrator appointed to the party;
(iii) the party passes a resolution for winding up, proposes a compromise or scheme of arrangement with its creditors or files for protection from its creditors;
(iv) if a receiver, receiver and manager, official manager, mortgagee in possession or other external administrator is appointed to the party or any of its property;
(v) if the party comes under administration (whether voluntary or involuntary); or
(vi) anything occurs in relation to the party which is (under the laws of any applicable jurisdiction) analogous to any of the events just described.
8.2 The Seller may extend the time of delivery or shipment (and make alternative delivery or shipping arrangements), or cancel the Agreement if the Seller does not receive the following in ample time to enable it to make delivery or shipping arrangements for the delivery of the Material:
(a) marking and shipping instructions from the Buyer;
(b) import certificates and documents from the Buyer required to obtain governmental licences and authorisation in order to make shipments; or
(c) advice that an irrevocable letter of credit (if applicable) has been issued by a Bank and upon terms acceptable to the Seller.
8.3 If the Seller cancels the Agreement under clauses 8.1 or 8.2, the Seller may stop the shipment or further shipment of the Material and recover from the Buyer any sum due at the time of cancellation of the Agreement and any loss or damage suffered by the Seller as a result of cancelling the Agreement.
8.4 The Seller may cancel the Agreement by giving written notice if the Material remains undelivered or uncollected after 14 days from when the Seller informs the Buyer that the Material is ready for collection.
8.5 The Buyer may by written notice immediately cancel the Agreement for the delivery of any future instalment of Material:
(a) if the Seller fails to perform or observe any material term of this Agreement and fails to remedy the breach within a reasonable time after being notified of the breach by the Buyer; or
(b) if an Insolvency Event occurs with respect to the Seller.
9. Delivery
9.1 The Seller must use reasonable endeavours to effect delivery of the Material by the date that is specified in the Agreement as being the delivery due date (the "Delivery Due Date").9.2 The Seller is not liable for any loss or damage accruing to the Buyer as a result of late delivery.
9.3 The Buyer must accept and pay for the Material even if the Seller delivers late.
9.4 The Seller may deliver the Material in instalments. Each instalment will be treated as a separate shipment under this Agreement. However, if the Buyer does not pay for an instalment, the Seller may treat the non-payment as a breach of contract relating to the other instalments.
9.5 Subject to clause 9.4, the Buyer may cancel an instalment under the Agreement if the Seller fails to effect delivery of the instalment within thirty (30) days from the Delivery Due Date unless that failure to deliver is as a result of any of the reasons specified in clause 12.
10. Source of Material
10.1 If the Agreement does not state a specific source of the Material, then the Seller may declare the source of the Material and this Agreement becomes a contract for the supply of Material from that source.10.2 If the source of any of the Material is declared (either at the time this Agreement is entered into or subsequently) to be Rio Tinto Aluminium (New Zealand) Limited, the Agreement (to the extent so declared) is deemed to be entered into by Rio Tinto Aluminium Limited as agent for Rio Tinto Aluminium (New Zealand) Limited.
11. Quantity discrepancy
11.1 If the quantity of Material delivered is less than the amount the Buyer ordered, the Buyer must notify the Seller in writing of the shortfall within 7 days after delivery. Otherwise the Seller will take it that the correct quantity of Material has been delivered, and the Buyer must accept the Material and pay for it in full despite the shortfall.11.2 If the quantity of Material delivered is more than the amount the Buyer ordered, the Buyer must immediately inform the Seller in writing and the Seller is entitled to charge the Buyer for the excess or recover the excess from the Buyer.
12. Force Majeure
12.1 Neither the Seller nor Buyer shall be liable for any delay in performing or failure to perform their respective obligations under this Agreement (except for delay or failure to pay money when due) caused by any circumstance beyond the reasonable control of, and not caused by the fault of, the Seller and/or its source supplier or the Buyer ( "Force Majeure).A party who is unable to deliver or to accept delivery in whole or in part because of an event of Force Majeure shall not be obliged to deliver or take delivery of that part (as the case may be) or be subject to any liability in respect of that part for the duration of the event of Force Majeure and its effects, if any.
12.2 Upon the occurrence of any event of Force Majeure, the party affected by the event of Force Majeure shall within 10 days of the occurrence notify the other party hereto in writing, with such notice to contain full particulars of the Force Majeure, including its nature and likely duration and effect on the affected party's compliance with its obligations, a reasonable explanation of its cause, and possible means of avoidance of the event of Force Majeure.
12.3 For the purposes of this clause 12, events of Force Majeure include but are not limited to strikes, lock-outs or other labour disturbances, accidents, sabotage, embargo, war (whether or not declared), fire, flood, revolution, riot, civil commotion, explosion, shortage of power, breakdowns of plant or machinery, shortage of raw or other materials from normal sources of supply, act of God, and any order or direction of any local, State or Federal Government, Government authority or instrumentality (within the Commonwealth of Australia or elsewhere).
12.4 Both Seller and Buyer shall exercise reasonable endeavours to cure any event of Force Majeure to the extent that it is reasonably possible to do so, it being understood that the settlement of strikes, lockouts and other labour disputes shall be within the sole discretion of the party asserting Force Majeure.
12.5 If an event of Force Majeure causes a reduction in the total quantity of material the Seller is obliged to deliver pursuant to this Agreement, the Seller shall allocate its available supplies of such Material, if any, among any or all of its existing customers in a fair and reasonable manner. In addition, where the Seller is the affected party, it may (but shall not be required to) offer to supply, from other sources, Material of similar quality in substitution for the Material subject to the Force Majeure event in order to satisfy that quantity which would otherwise have been sold and purchased under this Agreement.
12.6 Failure to deliver or accept delivery of Material which is excused by or results from the operation of an event of Force Majeure shall not extend the term of this Agreement and the quantity of Material to be delivered and accepted under this Agreement shall be reduced by the quantity affected by such failure.
12.7 Where a delay in delivering or accepting delivery of Material by reason of an event of Force Majeure exceeds more than 120 consecutive days, either party shall have the right by written notice to cancel the quantity of Material not delivered or accepted with immediate effect, and any payment already made by Buyer to Seller for undelivered Material shall be refunded to the Buyer. However, this clause 12.7 shall not apply to any Material which has been shipped or for which a shipping berth has been firmly booked and/or which has already been loaded onto the Buyer's ship.
12.8 Notwithstanding anything in this clause 12, an event shall not be regarded as an event of Force Majeure unless:
(a) it is outside the reasonable control of, and not caused by the fault of the party claiming Force Majeure;
(b) the party claiming Force Majeure has, with due diligence, taken and continues to take all proper precautions, due care and reasonable alternative measures with the object of avoiding or minimising the effects of the event in question and avoiding prevention from/delay in delivering or taking delivery of the Material (which, for the avoidance of doubt, includes, without limitation, ensuring that any contractor of the party, upon which the party is relying in its performance of any obligation under this Agreement, exercises the same level of due diligence); and
(c) the party claiming Force Majeure has given notice of the event of Force Majeure as required under clause 12.2.