Terms & Conditions
- Definitions: In these terms – “Seller” and/or “Lessee” means Montrae Mining Pty Ltd; means the entity purchasing or leasing the Goods, including any successors thereof; “Goods” means the goods, products and materials manufactured, imported, supplied and or delivered by the Seller too Buyer, “Contract” means the contract entered by the Seller and Buyer for the supply of goods, as accepted by the Buyer – Whether expressly or impliedly, including by actual acceptance of delivery of the Goods – which these Terms and Conditions form an integral part thereof unless otherwise confirmed in writing by Seller.
- Payment: Unless otherwise specified in writing on the face hereof, payment will be made by the Buyer within 30 days of receipt of a properly rendered Tax Invoice, unless otherwise agreed in writing, provided and to the extent that nothing is then in dispute in relation to the Services.
Payments received after the due date hereof shall bear a service charge from the maturity date of said invoice at the maximum lawful interest rate applicable under the Penalty Interest Rates Act (NSW) as determined Under Section 27 of “Taxation Administration Act 1996”. All payments shall be made in the same currency as mentioned in this contract to the Seller, at its designated bank account as specified on the face of this invoice unless otherwise designated by the Seller. - Prices: Prices set forth herein are agreed otherwise in writing between Seller and Buyer. Prices are based on production costs for supplies, labour, deliveries, duties and services current on the order date.
The contract price shall not exceed the amount specified in the Order unless first approved by the Seller in writing. - Duties and Taxes: Duties, taxes, fees, levies and other compulsory payments arising here includes, without limitation, applicable sales tax, customs duties, mobilisation and demobilisation costs and the like payable in relation to provision of the Services and shall not be subject to rise and fall or to any change by reason of exchange rate fluctuations or for any other cause unless specifically stated in this Agreement.
- GST: Means Goods and Services tax levied or imposed in Australia pursuant to the New Tax System (Goods and Services Tax) Act 1999.
- Delivery:
a) Any delivery dates noted on the face hereof are subject to reasonable adjustment. Delivery or tender of delivery of the goods within (20) days before or after the date specified on the face hereof shall be timely delivery.
b) The acceptance of shipment by a common carrier or by any licensed public truck man shall constitute proper delivery. Risks in the Goods shall pass to Buyer on delivery or upon any collection of the Goods by the Buyer or the passing of title in the Goods, whichever occurs first.
c) All freight, express, insurance and delivery charges shall be paid by the Buyer unless otherwise specified in writing on the face of the invoice. - Retention of Title:
a) Buyer shall, at Seller’s request, take any measures necessary under applicable law to protect Seller’s title in the Goods, and lawfully notify the Buyer’s present or potential creditors of Seller’s title and interest to the Goods.
b) Buyer acknowledges that so long as title has not been transferred in the Goods, it holds the Goods as Bailee and fiduciary agent for the Seller and shall safely and securely store and keep the Goods separate and in good condition, clearly showing the Seller’s ownership of the Goods and shall respectively record the Seller’s ownership of the Goods in its books. - Liability:
a) Unless the Seller shall within 30 days after delivery of Goods, receive from the Buyer written notice of any matter or thing by reason whereof it is alleged that Goods are not in accordance with the Contract, the Goods delivered shall be entitled neither to reject the same nor to raise any claim for damages or for other remedy in respect of any alleged negligence, breach of warranty and/or any condition.
b) In any claim, brought subject to the conditions above, Buyer must prove to the satisfaction of the Seller that the Buyer followed Seller’s instructions for use, care, storage and maintenance of the Goods.
c) Unless otherwise specifically restricted by mandatory applicable law, Seller’s liability under any claim and in any connection with any possible allegation, whether based on negligence or on any other cause Of action, shall be limited to either (1) replacement of the Goods or the supply of equivalent goods;(2) the repair or payment of the cost of the repair, of the Goods; or (3) credit in the amount equal to the purchase price specified on this invoice or in an amount of equivalent good’s, at Seller’s sole option.
Buyer acknowledges that the remedy available to him as specified herein, is in lieu of any remedies that may be otherwise available to him, now or in the future, whether in law or in equity, relating to any loss or damage, whether directly or indirectly, arising from the purchase and/or the use of Goods, including without limitation, any actual or contingent damages, loss of production, loss of profit, loss of use, loss of contracts or any other consequential or indirect loss whatsoever.
d) Buyer, for himself and for any other party which may claim either under or through Buyer, or independently of Buyer, including Buyer’s employees, directors, officers, representatives and personnel, shall indemnify the Seller and hold it harmless, rom and against any claim or liability for damages for negligence including but not limited to, any claim in connection with the design, manufacture, use care, storage, delivery , application or maintenance of any Goods alleged infringement of copyright, patents, registered designs or trademarks, whether alleged to have been committed by the Seller or by any other person whatsoever.
Buyer’s undertaking as specified in these subsections 8 (c) and 8 (d) shall extend and inure to the benefit of Seller and of Seller’s successors at anytime, as well as to Seller’s personnel, representatives, managers, directors and officers.
e) Any and all warranties, undertakings, guarantees or assurances provided herein by Seller, are specifically limited to Buyer herein, and not imputed by Seller, whether directly or indirectly, expressly or impliedly, to any other person or entity, including any subsequent buyer or user, Bailee, licensee, assignee, employee and agent of Buyer. - Independent Delivery: Each delivery shall be considered as a separate contract and the failure of delivery shall not vitiate a contract as to other deliveries.
- Installation: Products that do not require installation by Seller (Lessee) may be installed by Customer and used at any time following delivery. Guidelines for installation provided by the Seller (Lessee) should be followed. Prior to such installation, Customer, at its expense, shall complete all applicable Product site preparations for installation, as specified by applicable Product documentation and as required by applicable law, including, without limitation, all health and safety laws, and shall thereafter provide such other assistance, services and facilities as may be requested by Seller (Lessee) (or its authorized technical representative) to complete such installation.
- Warranty:
a) Seller warrants only that the merchandise sold hereunder meets the descriptions or specifications stated herein, subject to use, storage and application thereof in accordance with and based on Seller’s standard tolerances and recommendations.
b) the warranty set forth herein is expressly in lieu of all other warranties, whether expressed or implied, including any and all warranties of merchantability and fitness for use, and all other obligations or liabilities which may be imputed to seller, which are specifically and expressly excluded hereunder. seller neither assumes nor authorises any other person to assume for it, any other liability in connection with the sale of any and all goods specified or contemplated by this contract. No warranty is made with respect to any of these goods which have been subject to accident, negligence, alteration, improper care, improper storage, improper maintenance, abuse or misuse.
Clause 1: Shock-Cusion Subs - Montrae Mining Pty Ltd warrants that its Shock Cusion Subs will be free from defects in material and workmanship for a period of 4 months from installation on Drill Rig, or 1500 hours whichever comes first. Installation guidelines as provided by the Montrae Mining, and all on site regulatory processes including but not limited to, occupational health & safety laws, site procedures, must be followed.
EXCLUSIONS; The warranty does not apply to Shock Cusion Subs which:
1) Have been improperly installed or fitted or for which installation and fitting instructions provided by Montrae Mining have not been followed;
2) Have not been properly maintained, or not maintained in accordance with any maintenance recommendations provided by Montrae Mining;
3) Are subject to normal fair wear and tear;
4) Have been modified or repaired without the written permission of Montrae Mining;
5) Have been subject to accident, abuse, misuse, neglect or damage.
CLAIMS ON WARRANTY; In the event Montrae Mining Pty Ltd accepts a claim on the above warranty, Montrae Mining Pty Ltd will repair using new or refurbished components, or replace the Shock Cusion Sub or wholly or partly recompense the consumer. The Shock-Cusion Sub is to be returned to supplier by customer within 30 days of making claim.
REQUIREMENTS; The cost of shipping to the manufacturer or payment of any custom clearance fees or duties, are the responsibility of the consumer. All records of installation, and use, must be available for manufacturer reference including but not limited to, drill rig information, drilled metres, installation guidelines if specified alternatively to that of Montrae Mining’s.
RETURNS; In the instance a change of mind has occurred within the warranty period, the new unused Shock-Cusion Sub requires a ‘Returned Materials Authorisation’ (RMA) form. To be obtained from and submitted to Montrae Mining for management to approve prior to return. Shock-Cusion Sub must be in new packaged condition.
Clause 2: Confirmation of configuration may be a requirement. In this event, a ‘Drill String’ or drawing will be provided to the buyer for signatory approval prior to the buyer’s order being processed. - Advice: Subject to clause hereof, any advice, recommendation, information, assistance or service provided by the Seller in relation to the Goods or in respect to their use or application is given in good faith, shall be accepted without liability on the part of the Seller and it shall be the responsibility of the Buyer to confirm the accuracy and reliability of the same in the light of the use, of which, the Buyer makes or intends to make of the Goods.
- Default: Upon failure of Buyer to pay any amounts due hereunder, or in the event of any breach or anticipated breach by Buyer of any contract with Seller, or if Buyer shall either (i) become insolvent, (ii) call a meeting of is creditors, or (iii) make any assignment for the benefit of creditors, or if (iv) a bankruptcy, insolvency, reorganisation, receivership or arrangement proceeding shall be commenced by or against Buyer, then in each such occasion, Seller may, at its sole option (1) cancel this and any other contract with Buyer (without waiving any of Seller’s rights to pursue any remedy against Buyer); (2) claim return of any goods in the possession of Buyer the title of which has not passed to Buyer, and enter the Buyer’s premises of any associated company or agent where such Goods are located) without liability for trespass or any resulting damage to retake possession of such Goods; (3) defer any shipment hereunder; (4) declare forthwith due and payable all outstanding bills of Buyer under this or any contract; and (5) sell all or any part of the undelivered goods, without notice at public and/or on private sale, while the Buyer shall be responsible for all costs and expenses of such sale and for any deficiency.
- Force Majeure: If the Seller shall be prevented from producing or effecting deliveries of the Goods or any of them by reason of any of the following causes, namely, act of god, insurrection, riot, was hostilities, terror attacks, warlike operations, piracy, arrests, restraints or detainments by any competent authority, strikes or combinations or lock-out of workmen, fire, floods, droughts, earthquakes, permanent or temporary delay or inability to obtain labour, material or services through Seller’s usual and regular sources, or any other circumstances (whether of a nature similar to those specified, or not) beyond the control of the Seller, then, in each such case, the obligation of the Seller to effect deliveries hereunder shall be suspended until after such prevention shall cease to continue. Should any deliveries under this contract be suspended under this clause, the Buyer shall nevertheless accept delivery and pay for such goods as the Seller shall be able to deliver in accordance with the period (s) of shipment named in this contract. Seller shall not be liable for, and be relieved from, any loss or damages of any kind resulting from the causes mentioned above.
- Cancellation: Orders manufactured in whole or in part, to the specifications of Buyer, may not be cancelled, except with the Sellers written consent and on terms which will indemnify Seller against all losses.
- Service Exchange: The Seller will retain ownership of goods received under this program, upon the arrival of goods to Seller’s warehouse.
- Entire Agreement: This contract merges and incorporates the entire terms and conditions for sale of the Goods. No modification or alteration of any provision hereof shall become valid and effective except upon a written instrument duly signed by the Seller. No waiver by either party of any default of the other party shall be deemed a waiver of any subsequent or other default.
- No Assignment: No rights of Buyer hereunder or arising out of this Contract may be assigned without the express written consent of the Seller.
- Arbitration: Any dispute arising out of or in the connection with this Contract shall be settled by arbitration in New South Wales. Should the parties fail to agree on the identify of the nominated arbitrator within 15 days following demand by either of the parties, the Chairman of the local Bar Association shall appoint same within 21 days following an application by either of the parties to that end. This provision shall survive any termination or cancellation of any of the terms and conditions herein, and shall be regarded as a separate and independent arbitration agreement between Buyer and Seller for all purposes and intents in connection with the subject matter specified on the face of this invoice.
- Law & Jurisdiction: This Contract/Agreement is enforced in and outside Australia and is subject to our choice of governing law Clause which will be governed by the substantive laws of New South Wales, its jurisdiction, and shall rest solely and exclusively in the competent courts of New South Wales in both domestic and International Agreements.
- Export Compliance: Customer shall comply with all applicable laws, rules, and regulations with respect to, but not limited to, the use of the Product. In addition, Customer expressly agrees to abide by all applicable foreign export restrictions or similar rules. Customer shall not transfer, export or re-export any Product. Seller shall be under no obligation to notify Customer of any changes or updates to any laws, regulations, controls, restrictions or lists contemplated. Customer shall immediately inform Seller of any export restrictions.
- Intellectual Property: Intellectual property and design elements of goods purchased by the consumer remain the property of the Seller. "Intellectual Property" shall mean any and all Seller’s (Lessee’) copyrights, patents, trade names, logos, Software, documentation, technical and manufacturing techniques, concepts, methods, designs, specifications and other proprietary information relating to the Products.
ADM F001 - Montrae Mining Pty Ltd - Terms & Conditions - March 2020