Purchasing Terms and Conditions
Page Index
- General
- Acceptance of delivered Goods/Services
- Seller's warranty
- Payment Terms
- GST/Other taxes
- Breach of terms by or insolvency of seller
- Insurance
- Indemnity
- Governing Law
1. General
a. "Barminco" means the Barminco group entity in respect of which a Purchase Order is issued.
b. "Purchase Order" means the agreement between Barminco and the Seller which arises on
acceptance of a written Barminco purchase order, the written purchase order and any
documents attached or incorporated by reference together comprising the entire agreement
for the purchase of the goods and/or services ("Goods/Services").
c. No modification of these Terms will be binding on Barminco unless agreed to by Barminco
in writing.
d. These Terms replace all prior proposals and negotiations with the Seller and the Purchase
Order supersedes any prior documentation in relation to the supply of the Goods/Services.
e. The Seller will not, without the prior written consent of Barminco, assign, sub-contract or
otherwise transfer the Purchase Order, either in whole or in part.
f. If the Seller comprises two or more persons, each person is jointly and severally responsible
for all and any obligations, liabilities and indemnities in favour of Barminco.
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2. Acceptance of delivered Goods/Services
a. The acceptance by the Seller of Barminco's written purchase order or delivery of the
Goods/Services (whichever first occurs) will constitute unconditional acceptance of the
written purchase order and agreement between the parties on these Terms.
b. Delivery will only occur when the Goods/Services have been received and accepted by
Barminco notwithstanding any agreement to pay freight, express or other transportation
charges or the passage of title by operation of law or otherwise and the cost of loss or
damage in transit will be borne by the Seller.
c. Risk and property in the Goods/Services will pass to Barminco when Barminco
unconditionally accepts the Goods/Services in accordance with these Terms.
d. All Goods/Services will be subject to Barminco's inspection and approval. If any
Goods/Services are rejected by Barminco, those Goods/Services will be held, subject to the
Seller's instructions, at the Seller's risk and at the Seller's expense and, may be returned by
Barminco to the Seller, or as otherwise instructed by the Seller, at the Seller's expense.
e. Barminco reserves the right to reject any Goods/Services which are damaged or which do
not conform to the quality, conditions or type specified in the Purchase Order.
f. Acceptance by Barminco of all or any part of the Goods/Services supplied under the
Purchase Order which is not in accordance with the terms of the Purchase Order will not bind
Barminco to accept future deliveries.
g. Acceptance by Barminco of all or any part of the Goods/Services will not be deemed to be
a waiver of Barminco's right either to cancel or return all or any part of the Goods/Services
because of failure to conform to the Purchase Order by reason of any defects or breach of
warranty, or be deemed to be a waiver of Barminco's right to make any claim for damages incurred by Barminco. These rights will be in addition to any other remedies provided by law.
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3. Seller’s warranty
a. The Seller warrants that the Goods/Services will be of merchantable quality, fit for sale and
for use, fit for the purpose intended and that they conform to the specifications, applicable
standards and performance capacity represented by the Seller.
b. The Seller warrants that the Goods/Services, including in the case of goods, all component
parts, are free from defects and, for a period of one year after Barminco's acceptance of the
Goods/Services, agrees to promptly replace and reinstall any defective part or unit at no cost
to Barminco, (including without limitation labour, material, freight and delivery charges) or
resupply free of charge any service, as appropriate.
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4. Payment terms
a. Payment for the Goods/Services will be made within the period agreed between Barminco
and the Seller at the time of Purchase Order.
b. If there is no agreement between Barminco and the seller, Barminco’s default payment terms of 45 days from the end of month will apply for all purchase orders.
c. Payment for the Goods/Services does not imply acceptance of the Goods/Services by
Barminco.
d. Barminco may withhold payment where the Seller fails to provide any information required
by the Purchase Order.
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5. GST/ Other taxes
a. The Seller agrees to pay and discharge all taxes, duties and other imposts on the
Goods/Services and to indemnify Barminco against any liability for such taxes, duties and
imposts. Barminco retains the right to withhold monies due to the Seller in respect of any
unpaid taxes, duties or other imposts where payment of these by Barminco is required by law.
b. GST related terms used in these Terms have the meaning given to them in applicable GST
legislation. In relation to GST:
i. If the Supply of goods and/or services under these Terms results in the Seller
being liable to pay GST, the Seller will pay that GST and will provide a Tax Invoice
to Barminco requiring it to pay to the Seller the amount of that GST. Barminco
agrees to pay the amount of that GST to the Seller.
ii. The liability to pay GST to the Commissioner for any Supply under these Terms
and liability for all penalties, interest and other charges under the GST Act, remains
at all times with the Seller.
iii. Payment of the GST set out in the Tax Invoice will be in accordance with the
terms of payment for the Supply set out in these Terms.
iv. The Seller is not entitled to claim from Barminco payment of an amount of GST
greater than the actual GST due by the Seller to the Commissioner.
v. If for any reason the amount of GST payable by the Seller on any supply of
goods and/or services under this Agreement is reduced, the Seller must inform
Barminco in accordance with the Seller's obligations under GST legislation and
reduce accordingly the amount payable by Barminco under clause 6 (b) (ii), or, if
Barminco has already paid that amount, refund the amount of the reduction to
Barminco within 14 days.
vi. If as a result of the reduction or removal of any tax, duty, excise or statutory
charge (including without limitation sales tax, fuel excise, stamp duty, FID and
debits tax) the GST exclusive value of the Goods/Services is reduced, the Seller
must pass on in full to Barminco any associated cost savings which result to the
Seller.
vii. Barminco may on reasonable notice, have carried out an audit of the Seller in
order to ensure that the Seller is complying with its obligations in the preceding
paragraph. For this purpose, the Seller will do all things reasonably necessary to
co-operate with Barminco and will make available to Barminco all relevant
documentation.
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6. Breach of terms by or insolvency of Seller
If the Seller commits a breach of or fails to comply with any of these Terms or (if an
individual) becomes bankrupt or makes an assignment of their estate for the benefit of their
creditors or makes an arrangement or composition with their creditors or (if a company) goes
into liquidation, provisional liquidation or administration or has a receiver appointed to any of
its assets, the Barminco may cancel the Purchase Order with immediate effect.
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7. Insurance
The Seller will effect and maintain the following insurances:
(i) Where goods are supplied:
a. Marine Transit and Property Damage insurance covering physical loss, damage or
destruction of the goods supplied for their full replacement value; and
b. Public and Products Liability insurance for a limit of indemnity of not less than
$10 Million any one occurrence and in the aggregate with respect to Products
Liability.
(ii) Where any person employed or engaged by the Seller goes on to any Barminco site in
conjunction with the supply of Goods/Services:
a. Public and Products Liability insurance for a limit of indemnity of not less than
$10 Million any one occurrence and in the aggregate with respect to Products
Liability;
b. Workers Compensation insurance and any other insurance required by any
applicable law including Industrial Disease coverage as may be required, in respect
of any person employed or engaged by the Seller who goes on to any Barminco
site; and
c. Motor Vehicle Third Party Property Damage insurance for limit of indemnity of
not less than $10 Million in respect of any registered motor vehicle.
The Seller will at any time requested by Barminco provide certificates of currency for each of the above insurances.
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8. Indemnity
a. The Seller will indemnify and hold Barminco harmless from all claims, demands, proceedings,
liability, loss, damage or expense (including legal fees on a solicitor and own client indemnity
basis) for any breach or violation of intellectual property rights including patents, patents
pending, trade marks, trade names, copyright and know how relating to the Goods/Services.
This indemnity will be in addition to any other remedies provided by law.
b. The Seller will indemnify and hold Barminco harmless from all claims, demands proceedings,
liability, loss, damage and expense (including legal fees on a solicitor and own client
indemnity basis) sustained by Barminco arising out of or in connection with the
Goods/Services failing to conform to any warranty or any other breach by the Seller of any of
these Terms. This indemnity will be in addition to any other remedies provided by law.
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9. Governing Law
The Purchase Order will be governed by the laws of Western Australia and the parties agree to
submit to the non-exclusive jurisdiction of the courts of Western Australia.
incurred by Barminco. These rights will be in addition to any other remedies provided by law.
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