Terms & Conditions
1.INTERPRETATION. "AEST" means Australian
Eastern Standard Time; �Australian Consumer Law� means the Australian Consumer
Law set out in Schedule 2 of the Competition
and Consumer Act 2010 (Cth), as supplemented or
amended; �Business Day� means any day other than a Saturday, a Sunday or bank
or public holiday in the State of Victoria. �Commercial Conditions� means the
commercial terms as set out in our Order acknowledgement or such other document
as we have expressly agreed contains commercial conditions.� �Contract� means any contract of sale and
purchase of Goods comprising these Conditions and the Commercial
Conditions.� �Contract Price� means the
price for the Goods as set out in the Contract. �Date of Despatch� means the
date on which the Goods are despatched by us or collected by you from our
premises. �Goods� means such goods as are supplied by us under the Contract
which may or may not contain Metal. �Group� means the relevant party, its
holding and subsidiary companies and any subsidiary of its holding company
(subsidiary and holding company being as defined in section 1159 of the UK
Companies Act 2006). �GST Act� means the
A New Tax System (Goods and Services Tax) Act 1999 (Cth);
�GST Amount� means the amount calculated by multiplying the monetary consideration
payable by the recipient (excluding the amount payable as GST) for the relevant
taxable supply by the prevailing GST rate; �Intellectual Property Rights� means
any patents, trade marks, service marks, registered designs, applications of
any of the foregoing, trade and business names, unregistered trade names or
marks and service marks, copyrights, rights in designs, inventions, rights
under licenses and consents in relation to any such rights. �Lost Metal Claim�
means any claim arising from the fact that the Metal content of any Goods has
been lost, damaged, destroyed or depleted whilst at our risk including, without
limitation, where such loss, damage, destruction or depletion arises as a
result of negligence by us or theft.�
�Metal� means, as applicable, such PGM as is contained in any Goods
supplied by us pursuant to the Contract or as we may hold on account for your
Group from time to time.� �Order� means
an order for Goods placed by you and accepted by us (at our sole discretion)
from time to time. ���PGM� means Platinum Group Metal.
�Specifications� means the specifications for the Goods forming part of the
Commercial Conditions, or such other specifications as have been agreed by the
parties of the Contract in writing and as the same may be amended or modified
by agreement between the parties of the Contract from time to time. �We�, �us�,
�our� and �JM� mean or refer to Johnson Matthey (Aust)
Ltd (ABN 62 004 146 838).� �You� and �Your� and the �Customer� mean or refer to the customer who
buys the Goods from us.
These Conditions shall apply to all our
Contracts except to the extent expressly varied in writing and signed by
OF MATERIALS AND INFORMATION.� Acceptance of Orders and/or completion of
Contracts by us are subject to sufficient: (a) materials, components and
services (including supplies from sub-contactors); and (b) Specifications,
information and other materials; being available or being made available to us
as will enable us to accept an Order and/or� proceed with and complete the Contract
and to continue manufacturing without interruption. �We reserve the right to make any changes
necessary to ensure that the Goods comply with applicable safety or other
4.�������������������� PRICES.� We shall be entitled to take
into account and revise upward the Contract Price according to
fluctuations or increases in our costs (including, but not limited to, costs of
materials, components, labour and services, including services provided to us
(such as gas, electricity, water, etc) services provided by us (such as Metal
handling and financing)) and any currency fluctuations up to the Date of
If we issue a quotation for Goods, this will be open
for acceptance until 3:30pm AEST on the day the quotation is provided unless
otherwise specified in the Commercial Conditions. However, we reserve the right
to withdraw a quotation at any time before acceptance.
Unless otherwise set out in the Commercial Conditions,
freight and insurance will be charged to the Customer at the rates prevailing
on the day of despatch.
Unless otherwise set out in the Commercial Conditions,
Gold contained in Goods will be charged at prices based on the last available
London Bullion Market morning fixing price upon acceptance of the Order and
Silver contained in Goods will be charged at prices based on the last available
London Bullion Market midday fixing price upon acceptance of the Order, or on a
subsequent date at our sole discretion, or agreed with you in writing. PGM
and/or metals other than Gold or Silver contained in Goods will be charged
either (at our sole discretion unless otherwise agreed with you in writing) at
the next setting of the London JM Base Price ruling on (i) the day of
acceptance of the Order or, where this is not possible, on the next available
Business Day thereafter; or (ii) on the Date of Despatch of the Goods or, where
this is not possible, on the next available Business Day thereafter.
Freight and insurance will be charged to you at the rates
prevailing on the Date of Despatch of the Goods unless the Commercial
Conditions specify otherwise.
5.1 �� If
you instruct us to enter into a forward sale or purchasing contract on your
behalf (for the purposes of this clause 5, a �Transaction�), you acknowledge
the irrevocable nature of such Transaction and agree that, although the market
value of the Metal may increase or decrease between the date on which the
Transaction is entered into (the �Value Date�) and the settlement date of such
Transaction, you have a binding obligation to purchase and we have a binding
obligation to sell the Metal on the date agreed by us for settlement of such
Transaction, at the price agreed on the Value Date.
5.2 In carrying out your instructions to enter
into a forward sale or purchasing contract on your behalf:
5.2.1 we shall not incur any liability to
you or any third party for damages, losses or expenses; and
5.2.2 you undertake to hold us harmless and
indemnify us against all costs, expenses, losses and damages of whatsoever
nature incurred in connection with any transaction arising from or pursuant to
AND CUSTOMS DUTIES.������������������
6.1 The Contract Price for the Goods shall
be exclusive of any value-added, sales, excise, customs or other tax or duty
payable on the sale of the Goods, which shall be paid by you in addition to the
6.2 If you are required by law to make a
deduction, withholding or payment (together �deduction�) on account of tax or
otherwise from any amount payable by you under the Contract, then the amount so
payable is to be increased to the extent necessary to ensure that, after the
making of such deduction, we shall receive and retain (free from any liability
in respect of that deduction) a net amount equal to the amount which we would
have received and so retained had no such deduction been made.
6.3 Terms defined in the GST Act have the
same meaning when used in this clause, or in the definition of "GST
Amount" unless expressly stated otherwise.
expressly stated otherwise, any sum payable or amount used in the calculation
of a sum payable under these Conditions has been determined without regard to
GST and must be increased, on account of any GST payable under this clause.
any GST is payable on any taxable supply made under these Conditions to the
recipient by the supplier ("Supplier"), the recipient must pay the
GST Amount to the Supplier on the earlier of:
time of making payment of any monetary consideration on which the GST is
issue of an invoice relating to the taxable supply.
recipient must pay the GST Amount in the same manner as making payment of any
monetary consideration on which the GST is calculated.� The Supplier must provide as a precondition
for payment by the recipient of the GST Amount, a tax invoice or a document
that the Commissioner will treat as a tax invoice.
amount recoverable on account of GST under this clause by the Supplier will
include any fines, penalties, interest and other charges incurred as a
consequence of late payment or other default by the recipient under this
we will use our best endeavours to supply the exact quantity of Goods ordered,
you shall accept the supply of Goods under an Order (whether more or less)
within ten per cent of the stipulated quantity in your Order.� In such circumstances, the invoice value of
the Goods for the Order shall be adjusted accordingly. Contract Prices quoted
are for the quantities and despatch Conditions stipulated in the Commercial
Conditions only and may not apply to other quantities or to different
Conditions of despatch.
7.2 We reserve the right to deliver the
Goods in instalments, and if delivery is made by instalments the Customer shall
not be entitled to terminate or cancel the Order or to compensation for any
loss or damage, whether direct, or indirect, from delays in despatch howsoever
we will use reasonable efforts to meet our forecasted Date of Despatch, such
forecast is an estimate only.
8.2 Time for despatch or delivery of Goods
by us shall not be of the essence and, accordingly, we shall have no liability
to you if there is any delay in despatch or delivery of the Goods. If the Goods
are not despatched or delivered on the Date of Despatch, you shall not be
entitled to reject the Goods or make any abatement to the Contract Price.
8.3 Despatch of Orders is conditional upon
you obtaining all necessary governmental or other consents governing the
importation/delivery of Goods to the agreed destination prior to despatch.
OF DELIVERY. Without prejudice to any of our other rights or remedies, we are
entitled to withhold delivery of any Goods (a) if any amount is overdue from
you in respect of any invoice issued by us or by any other company in our
Group; or (b) if, following invoicing of the Goods, your credit limit (if any)
either with us or with any other company in our Group would be exceeded.� In determining your credit limit for such
purposes, the aggregate invoice value of all invoices issued to you by us or by
any other company in our Group (as the case may be) and which are then
outstanding, including unpaid accounts, shall be taken into
account, together with all pre-existing orders that have been placed but
OF RISK. To the extent permitted by law, risk in the Goods shall pass to you on
delivery unless an earlier transfer of risk is set out in the Commercial
Conditions or unless the Goods are collected from us in which case risk shall
pass at the point of collection on the Date of Despatch.� Trade terms shall be interpreted according to
Incoterms 2010 published by the International Chamber of Commerce.
11.1 Notwithstanding despatch or delivery of the Goods
and/or the passing of risk, the following shall apply until we have received
payment in full for all amounts due and owing in respect of the Goods:
11.1.1 Property in the Goods shall remain with us as
legal and equitable owner.� You shall be
entitled to possession of the Goods only, shall hold the Goods as a bailee on
our behalf and store the Goods separately from all other goods and in such a
way as to be readily identifiable as our property.
11.1.2 You shall keep the Goods insured against all
risks to our reasonable satisfaction for their full replacement value. On
request you shall produce satisfactory evidence of appropriate insurance.
11.1.3 Notwithstanding the provisions of clause 11.1.1,
you shall have a licence to sell (by way of bona fide sale at arm�s length) the
Goods which licence may be immediately terminated by us at any time by written
notice to you provided that (without prejudice to any other right of ours) such
licence shall automatically terminate if you (being an individual) become
bankrupt or (being a company) adopt a resolution for your winding up or if any
petition is presented for the appointment of an voluntary administrator or a
receiver, receiver and manager, controller, or an administrative receiver is
appointed in respect of any part of your undertaking or assets or if you are
unable to pay your debts as they fall due.
11.1.4 At any time before the title of any of the Goods
is passed to you, we may repossess such Goods.�
For this purpose, you grant us an irrevocable licence to enter your
premises and to use reasonable measures to gain access to your premises and
recover possession of the Goods.
11.1.5 We or our nominee shall at any time have full
access to all your books of account, documents and papers relating to your
dealings with us; your dealings with the Goods and/or your dealings with the
proceeds of sale of the Goods.
11.1.6 You shall not pledge or in any way charge or
otherwise encumber by way of security for any indebtedness any of the Goods.
11.2 Nothing in this Condition 11 gives you the right
to return the Goods (or any part of them) or to refuse or delay payment for
them (or any part of them).
11.3 Nothing in this Condition 11 shall be construed as
creating a lien or charge or any other form of security over your property or
that of any third party.
11.4 We shall be entitled to recover payment for the
Goods notwithstanding that any ownership of such Goods has not passed from us.
11.5 Where we are unable to determine whether any Goods
are the goods in respect of which your right to possession has terminated, you
shall be deemed to have sold all goods of the kind sold by us to you in the
order in which they were invoiced to you.
11.6 We shall not be obliged to make any payment to you
until all sums due from you to us in respect of the Goods have been settled in
11.7 The provisions of this Condition 11 shall survive
termination of the Contract.
FOR CONSIGNMENTS.� If the Commercial
Conditions specify, we may, on your behalf, arrange insurance to destination on
consignments of Goods at your expense.�
The premium will cover the invoice value of the consignment of
Goods.� Details of the insurance cover are
available upon request.� The arrangement
of any additional insurance required by you shall be your responsibility.
IN TRANSIT AND NON-DELIVERY.���
13.1 Where risk
in the Goods has not passed to you, we will, at our sole discretion, either
repair, replace, recover, refund or issue a credit note in respect of the Goods
in the event of:
13.1.1 damage in transit provided we are given written
notice of such damage promptly after delivery; are given the opportunity to
inspect the Goods; and you make no further use of the Goods and do not attempt
to alter or repair the Goods; and
13.1.2 non-delivery provided that where we have
notified you of despatch of the Goods we are given written notice of
non-delivery promptly upon the Goods not being delivered.
13.2 For the avoidance of doubt, you agree that you
shall have no right to terminate the Contract in the event of the occurrence of
any of the circumstance set forth in Conditions 13.1.1 or 13.1.2.
14.1 Payment in full is due no later than 30
days after the invoice date in the currency and to the bank account stated on
14.2 Payment by cheque must be received at
least 4 Business Days prior to the last Business Day of the payment month.�
14.3 In circumstances where, exceptionally,
we agree that payment may be made in a currency other than Australian dollars,
payment must be made in accordance with the instructions on the invoice or as
otherwise set out in writing by us.��
14.4 If we agree that payment may be made by
irrevocable confirmed letter of credit, confirmation is required by a bank with
our prior written approval.
14.5 Payment by you must be made without deduction,
set-off, counter-claim or withholding.
14.6 Time for payment by you is of the essence.
14.7 Where we have procured a bank guarantee for your
benefit in respect of the Goods, you agree that within five Business Days of
performance of our obligations in accordance with the terms of the bank
guarantee you will provide written notice to the relevant bank (with a copy to
us) that the bank guarantee shall be released. We reserve the right to pass on
to you any charges incurred by us arising out of or in connection with your
failure to provide such notice.
15.1 If you fail or refuse to make payment
when due, the amount unpaid may, in our sole discretion, incur interest at the
rate of 2 per cent per annum above the prime lending rate published by Westpac
Banking Corporation from time to time from the invoice date to the date of
actual payment (both before and after judgment). Our right to charge interest shall be
without prejudice to any other rights or remedies we may have under the
15.2 Without prejudice to any other remedies
we may have, if you fail to make due payment of any sum due under the Contract,
we shall be entitled to treat the Contract as repudiated by you.
LIEN.� Without prejudice to any other
remedies we may have, we shall have a general lien on all of your goods or
property in our possession (whether worked on or not) for the time being for
all sums due from time to time under the Contract and we will be entitled, on
the expiration of 21 days� notice in writing to you, to dispose of such goods
or property as we think fit and to apply any proceeds received towards all sums
due from time to time.
ACCOUNTS. You shall ensure that your Metal Account with us is operated at all
times in accordance with our Unallocated Metal Account Terms and Conditions in
force from time to time, a copy of which is available on request.
18.��� PACKING.� Packing is non-returnable.
You shall be
responsible for its safe and proper disposal.
19. WARRANTY AND
19.1 We warrant that all Goods will comply with the
Specifications at the Date of Despatch (the �Warranty�).�
19.2 We accept no liability for misuse of the Goods or
for the suitability or fitness of the Goods for any particular purpose or your
failure to carry out statutory or contractual obligations. You are responsible
for ensuring that the terms of any Specification supplied by you are complete
19.3 If you claim that the Goods do not comply with the
Warranty, you must give us written notice giving details of the alleged
non-compliance within 30 days of the date of receipt and, if requested,
promptly return the Goods to us properly packed, carriage paid.
19.4 If any Goods do not comply with the Warranty, our
only obligation shall be (at our sole discretion) to repair, replace or issue a
credit or a refund in respect of such Goods provided that we shall have no such
obligation if such Goods have been tampered with or subjected to improper
treatment and/or the defects are as a result of faulty design or incorrect
Specifications by you.� Goods returned to
us and replaced shall become our property.
19.5 Save as expressly provided in Condition 19.4, and
subject to Condition 20.6, we shall have no further liability to you whether in
contract, tort (including negligence) or otherwise arising out of a breach of
19.6 If you resell or resupply the Goods you� must not alter
the packaging of the Goods or represent that we provide a warranty or remedy to
the buyer, except as required by law or as expressly permitted by us in
19.7 You represent to us that:
19.7.1 you have full power and authority to enter into
the Contract and to exercise your rights under the Contract and to perform your
duties and obligations under the Contract; and
19.7.2 where you are a body corporate, you are a
company duly organised and validly existing under the laws of the relevant
jurisdiction and you have taken all corporate and other actions required to
authorise your performance of your duties and obligations under the Contract.
20. LIMITATION OF LIABILITY
20.1 Our sole obligation in respect of a
Lost Metal Claim shall be either (at our sole discretion) (i) to replace any
Metal lost as a result of that breach to the extent lost while at our risk; or
(ii) to provide monetary compensation to the value of such Metals (the value
being calculated as at the Date of Despatch). The remedies specified in this
Condition 20.1 are subject to the other provisions of this Condition 20.
20.2 Our total aggregate liability (whether
in contract, tort (including negligence) or otherwise) arising out of, or in
connection with, any act, omission, event or circumstances or series of acts,
omissions, events or circumstances relating to the� provision of the Goods and/or the
Contract shall be limited as follows:
20.2.1 for a Lost Metal Claim such liability
shall not exceed the value, at the Date of Despatch, of any part of the Metals
content that has been lost, damaged, destroyed or depleted and that is the
subject of the Lost Metal Claim; or
20.2.2 for a claim other than a Lost Metal
Claim, such liability shall not exceed the Contract Price (excluding the value
of any Metal contained in the Goods).
20.3 Subject to these Conditions and to the
extent permitted by law, we shall not in any circumstances, (whether in
contract, tort (including negligence) or otherwise) be liable for loss of
profit (whether direct or indirect) or for:
20.3.1 any indirect, special, contingent or
consequential damages or losses (whether for loss of business, loss of
contracts, depletion of goodwill, losses arising from� market fluctuations or otherwise)
arising out of or in connection with, the Contract and/or the provision of (or
failure to provide or delay in providing) the Goods; or
20.3.2 damage to property or persons
resulting from the provision of (or failure to provide or delay in providing)
You accept the responsibility to insure
against these risks.
20.4Subject to clause 20.5, nothing in
clauses 20.2 or 20.3 excludes, restricts or modifies:
application of any consumer guarantee in the Competition and Consumer Act 2010 (Cth)
(�Consumer Guarantee�) or any similar provision in the law of any State or
Territory that cannot be excluded, restricted or modified (�Similar
exercise of any right conferred by an Consumer
Guarantee or Similar Provision; or
liability under any Consumer Guarantee or Similar Provision.
to clauses 20.2 and 20.3, where permitted and to the full extent permitted by
law, our liability in respect of any claim under any Consumer Guarantee or
Similar Provision is limited, at our option, to:
the case of goods, the repair or replacement of those goods, the supply of
equivalent goods, the payment of the cost of repairing or replacing the goods
or acquiring equivalent goods;� and
the case of services, supplying those services again, or paying the cost of
having the services supplied again.
We shall have no liability for Metal or
Goods lost whilst not at our risk.
20.6 Nothing in these Conditions limits our
liability for fraud or for death or personal injury caused by our negligence.
Every Condition is subject to this Condition 20.6.
20.7 We shall not be liable in respect of any claim
made against you by any third party and you shall indemnify us against any
claim brought by any third party against us relating to the Goods.
20.8 No provision of these Conditions or the Warranty
shall be taken as a representation by us that the Goods correspond with any
description of them.
20.9 If performance of our obligations under the
Contract is subject to or conditional upon your satisfaction of the relevant
conditions or performance of the relevant obligations under the Contract, we
shall not be liable to perform such obligations until you have satisfied such
relevant conditions or performed such relevant obligations.
20.10 This Condition 20 is in substitution for and (to
the extent permitted by law) excludes all conditions, warranties and terms as
to satisfactory quality and fitness or to the purpose or suitability of any of
the Goods, whether expressed or implied, and whether conferred by statute,
common law or otherwise.
21. CONFIRMATION ORDERS.� To avoid Orders being duplicated, all
confirmations of Orders previously placed must be marked clearly as a
confirmation Order.� We reserve the right
to treat any confirmation Order that is not so marked as a separate Order.
FREE ISSUE MATERIALS.� If you supply us with materials or parts for
processing, excluding Metal, our liability for loss and/or damage shall in no
circumstances exceed the value of the free issue materials as received by
us.� You must notify us in writing of the
value of such materials at the time they are despatched to us. Any liability in
respect of a Lost Metal Claim shall be dealt with in accordance with Condition
EQUIPMENT.� Arrangements may be made for
you to retain exclusive use of designs or patterns but all property rights in
all machinery, plant, tools, dies, jigs and other equipment used in the
manufacturing process of the Goods (and any designs or patterns in respect of
which no such arrangements are made) shall remain ours whether or not we charge
you for their cost.
24.1 Without prejudice to any other rights and remedies, either party
may at any time terminate the Contract by giving written notice to the other
and suspend all future deliveries if the other party (a) commits a material
breach of any provision of the Contract which breach is either not capable of
remedy or, if capable of remedy, is not remedied by the party in default within
thirty days after service by the non-defaulting party of a written notice
notifying it of the breach and requiring the defaulting party to remedy it, (b)
goes into liquidation or is declared bankrupt; (c) has an administration order
made against it; (d) suffers a distress or execution levied or enforced upon
any of� its property or assets and is not
paid out or discharged within 14 days; (e) has an encumbrancer takes possession
of, or a receiver, administrative receiver, receiver and manager or similar
officer appointed over, its undertaking, property or assets; (f) stops payment
or ceases or threatens to cease to carry on its business or becomes unable to
pay its debts as they fall due or (g) enters into any other arrangement with
its creditors or any of them; (h) a resolution or an order being made or being
passed for winding-up; (i) a petition is presented or a meeting is convened for
the purpose of winding �up; or (j) if the equivalent to the foregoing (b) to
(i) shall occur in any jurisdiction.
24.2 The expiry or termination of the Contract howsoever arising shall
be without prejudice to any rights or obligations which have already accrued to
either party pursuant to the Contract prior to the date of expiry or
termination, and shall not operate to affect such provisions of the Contract as
in accordance with their terms are expressed to operate or to have effect after
expiry or termination, including but not limited to, Conditions 1, 5.2.2, 11, 14,
20, 24, 26.2, 28, 30 to 34 and 36 to 42, which shall remain in full force and
effect after expiry or termination of the Contract.
24.3 Upon the expiry or termination of the Contract, all outstanding
unpaid invoices in respect of the Goods shall become immediately due and
payable by you and all invoices in respect of Goods ordered prior to the expiry
or termination of the Contract, but for which an invoice has not been
submitted, shall be due and payable by you immediately upon submission of the
24.4 You may not cancel an Order without our consent. If you purport to
cancel an Order without consent we may, without prejudice to any other rights,
charge you all costs incurred by us (or to which we have committed) up to that
date. If work on an Order is suspended due to your instructions or lack of
instructions, we may treat this as cancellation by you.
25.��� FORCE MAJEURE.� We reserve the right to defer� the Date of Despatch or reduce the quantity
of the Goods ordered by you and we shall not be held liable for any delay or
failure to despatch or deliver the Goods if we are prevented from or delayed in
the carrying on of our business due to circumstances beyond our reasonable
control� including, without limitation,
act of God, governmental actions, war or national emergency, acts of terrorism,
protests, riot, civil commotion, fire, explosion, flood, epidemic, lock out, strikes
or other labour disputes (whether or not relating to either party�s workforce),
or restraints or delays affecting carriers or inability or delay in obtaining
supplies of adequate or suitable materials, provided that, if the event in
question continues for a continuous period in excess of six months, either
party shall be entitled to give notice in writing to the other to terminate the
26.��� INTELLECTUAL PROPERTY.
26.1 We accept no liability for any claims made against you for any
infringement of the Intellectual Property Rights of any third party in
connection with the use, possession, resale or offering for resale of the Goods
either as originally sold by us or otherwise.
26.2 If we execute the Order in accordance with your designs, plans or
Specifications, you shall indemnify us without limitation in point of time
notwithstanding the expiration or early termination of the Contract, and to
keep us indemnified in full against all actions, losses, damages, expenses,
costs, fees or other liabilities arising from any claims made against us for
infringement of any third party�s Intellectual Property Rights.
26.3 Nothing contained in these Conditions shall be construed as, or
operate to grant, any licence to you in respect of any of our existing or
future Intellectual Property Rights other than to the extent required to use
27.��� SEPARATE DELIVERIES.� Where the Contract is for the sale of Goods
by a number of separate deliveries, a breach affecting one delivery shall not
affect any other, provided that for so long as payment for any delivery is
overdue, we shall not (without prejudice to our rights under Condition 15) be
liable to make any further delivery.
28.1 We may at any time or times without notice to you, set off any
liability of your Group to our Group against any liability of our Group to your
Group, whether any such liability is present or future (whensoever arising),
liquidated or unliquidated, under the Contract or not and irrespective of:
28.1.1 the currency of its denomination; or
28.1.2 the type of Metal held by our Group on behalf of your Group.
28.2 Where our Group holds more than one type of Metal for your Group,
whether in a Metal account or in physical form, we shall have the right, in our
sole discretion, to choose which Metal to sell for the purpose of set-off. If
the liabilities to be set-off are expressed in different currency, we may
convert either liability at a market rate of exchange for the purpose of
28.3 If we are setting off the liabilities against Metal held on behalf
of your Group, we may sell the Metal on the following basis for the purpose of
28.3.1 for Platinum and Palladium � the London Platinum & Palladium
Market Morning Price on the date of sale;
28.3.2 for Gold� the London Bullion Market Morning �Price on the date of sale;
28.3.3 for Silver - the London Bullion Market Midday �Price on the date of sale;
28.3.4 for Rhodium, Ruthenium, Iridium and Osmium the prevailing market
rate on the date of sale, in each case, incorporating any applicable price
28.4 Any exercise by us of our rights under this Condition 28 shall be
without prejudice to any other rights or remedies available to us under the
Contract or otherwise.
29. SETTLEMENT OF OUTSTANDING AMOUNTS.��
We shall not be obliged to deliver, transfer or make payment for any
Metal held in a Metal account by us or our Group on behalf of you or your Group
unless and until all outstanding amounts owing by you or your Group to our
Group have been settled in full by payment in cleared funds.
30.��� PROPER LAW.�
The construction, validity and performance of all our Contracts shall be
governed by the laws of the state of Victoria, Australia. We and you submit to
the non-exclusive jurisdiction of the Victorian Courts.
31.��� HEADINGS.� Headings to paragraphs are for convenience of
reference only and shall not affect the interpretation of these Conditions.
32.��� SEPARATE PROVISIONS.� Each of these Conditions and part (including
a sub-clause or part thereof) shall be constructed as a separate provision
applying and surviving even if one or more Conditions or parts is held to be
invalid, unlawful or otherwise unenforceable by a competent authority, the
remaining Conditions and parts shall remain in full force and effect.
33.��� WAIVER.� The waiver by us of any breach of any of these
Conditions shall not prevent the subsequent enforcement of that Condition and
shall not be deemed to be a waiver of any subsequent breach of that or any
34.��� NOTICES.� Each notice or other communication under the
Contract shall be made in writing and sent by personal delivery, facsimile or
registered post to the party�s registered office or at such other address as
the party may nominate in writing from time to time. Any notice shall be deemed
to be served at the time of delivery if served personally or, if served by
facsimile transmission, at the time the originating machine confirms that the
transmission was sent or, if served by registered post, 48 hours after posting
and, in the case of Overseas customers, 5 days after posting.�
35.1 We shall be entitled to assign (whether absolutely or by way of
security and whether in whole or in part), transfer, mortgage, charge or
otherwise dispose in any manner whatsoever of the benefit of the Contract or
any part of it to any person, firm or company.
35.2 You shall not be entitled to assign (whether absolutely or by way
of security and whether in whole or in part), transfer, mortgage, charge or
otherwise dispose in any manner whatsoever of the benefit of the Contract or
sub-contract or delegate its performance under the Contract or any part of it
without our prior written consent.
Each party shall keep in strict confidence and not, by failure to
exercise due care or otherwise by any act or omission, disclose to any person
whatsoever, or use or exploit commercially for a purpose other than the
performance of its obligations under the Contract all technical or commercial
know-how, Specifications, inventions, processes or initiatives which are of a
confidential nature and have been disclosed to such party by the other party or
its agent and any other confidential information concerning the disclosing
party�s business or its products which the receiving party may obtain, and the
receiving party shall restrict disclosure or use of such confidential material
to such of its employees,� officers,
advisers, agents or sub-contractors as need to know the same for the purpose of
discharging its obligations to the disclosing party and shall ensure that such
employees, officers, advisers, agents or sub-contractors are subject to like
obligations of confidentiality as bind itself.
37.1 The Contract represents the whole agreement between the parties and
supersedes all previous agreements between the parties relating to the subject
37.2 Each party acknowledges that:
37.2.1 in entering into the Contract, it has not relied on, and shall
have no right or remedy in respect of, any statement, representation, covenant,
indemnity, undertaking, commitment,� assurance or warranty (whether made
negligently or innocently) other than as expressly set out in the Contract; and
37.2.2 all other terms and conditions (including but not limited to
those in any Order) are expressly excluded to the fullest extent permissible by
37.3 Each of our rights or remedies under the Contract is without
prejudice to any of our other rights or remedies whether under the Contract or
37.4 The Contract may be executed in any number of counterparts and by
the parties to it on separate counterparts, each of which when so executed and
delivered shall be an original, but all the counterparts shall together
constitute one and the same instrument.
37.5 Either party shall at its own cost, execute and do all acts,
documents and things (reasonably within its powers) as may reasonably be
required by the other party so as to implement the terms of the Contract.
38. APPLICATION AND EXTENSION OF CREDIT
38.1 You may apply for trade credit
by completing a trade credit application.
38.2 The extension of trade credit to you shall be at our sole
discretion at all times.
38.3 We reserve the right to require a guarantee and indemnity to be
given by any person in relation to an application for trade credit approval on
such terms as we may be determine from time to time.
38.4 We reserve the right, without prior notice, to refuse to extend any
further trade credit to a Customer.� Our
approval of this application does not require us to extend trade credit to you
in any particular amount.
38.5 To allow us to assess you
application for trade credit, you� authorise us to do each of the
following, in accordance with the provisions of the Privacy Act 1988 (Cth):
(a)���� obtain from a credit
reporting body, a credit report containing personal information about the
Customer and any guarantor (if applicable);
(b)��� obtain from a credit reporting �body any
other information in relation to the Customer's commercial credit activities;
(c)���� give to and obtain from any
credit provider named in the Customer's credit application and any credit
provider named in a credit report issued by a credit reporting body,
information about the Customer's commercial credit arrangements.
39. THIRD PARTY RIGHTS��� No
person other than a party to this Contract shall have any right to enforce any
of its terms.
40.1. You agree that these terms
constitute a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth)
("PPSA") and give rise, or may give rise, to one or more Security
Interests in favour of us in Goods supplied by us to you pursuant to this
Contract ("Collateral"). The Parties agree that any Security Interest
in favour of us in any Collateral is also a Security Interest in any proceeds
of that Collateral, and any product or mass that the Collateral may be or become
40.2Without limiting our other rights, and in respect of this Contract
and each Security Interest created pursuant to this Contract or otherwise in
the Collateral and proceeds of it:
40.2.1����������� You undertake to:
a)����� promptly and at your own
cost, sign any further documents and provide any further information (such
information to be complete, accurate and up-to-date in all respects) that we
may reasonably require to register a financing statement, financing change
statement or any other required document on the Personal Property Securities
b)����� not register, or permit to
be registered, a financing statement or a financing change statement in respect
of a Security Interest without our prior written consent; and
c)����� give us at least 14 days prior
written notice of any proposed change in your name or any other change that
would cause any information in a financing statement in relation to any such
Security Interest to be different if it were re-registered.
40.2.2.���������� JM and Customer
agree that, to the extent permitted under section 115 of the PPSA or otherwise,
nothing in Sections 95, 96, 125, 129(2), 129(3), 130(1)(a), 132(3)(d), 132(4),
134(2), 135, 142 and 143 of the PPSA will apply to this Agreement or any
40.2.3.���������� You agree that your
rights to the following are expressly excluded (and you unconditionally and
irrevocably waive those rights):
a)����� to receive notice of
removal of an accession under Section 95(1) of the PPSA;
b)����� to apply for a court order
concerning the removal of an accession under Section 97 of the PPSA;
c)����� to receive a notice under
Section 121(4) of the PPSA;
d)����� the remedy against us for a
breach of Section 92 of the PPSA;
e)������to object to our proposal to
purchase or retain collateral under Section 137 of the PPSA;
f)������ to redeem collateral under
Section 142 of the PPSA; and
g)����� to receive a copy of any
financing statement, financing change statement or verification statement (as
those terms are defined in the PPSA) registered or received by, or available
to, us in respect of the Security Interests in the Collateral or its proceeds.
40.3. You agree to do all things
necessary, including executing all documents and providing all information
which we may require and co-operating fully with us, to ensure that at all
times we have a perfected Security Interest in relation to all Security
Interests in the Collateral and with the priority available to and sought by us
and including, if applicable, a Purchase Money Security Interest in respect of
the Goods supplied by us to you pursuant to this Agreement.
40.4. You agree that, until all
monies owing to us are paid in full, you shall not grant any other Security
Interest in the Collateral except as permitted by us in writing.
40.5. You agree to reimburse us for
all costs and/or expenses incurred or payable by us in relation to registering,
maintaining or releasing any financing statement, financing change statement or
any other document in connection with any Security Interest granted by you in
40.6. We may apply moneys received
from you to satisfy such of the outstanding debts owed to us by you as we sees fit. You further agree that where we have rights in
addition to those under Chapter 4 of the PPSA, those rights will continue to
40.7. In this clause 40:
�financing statement� has the meaning given to it by the PPSA;
�financing change statement� has the meaning given to it by the PPSA;
�Purchase Money Security Interest� has the meaning given to it by the
�Security Agreement� means the security agreement under the PPSA created
between Customer and JM; and
�Security Interest� has the meaning given to it by the PPSA.
41.1. You hereby acknowledge and
agree that the Goods and/or Confidential Information may be subject to
applicable export control and trade sanction laws, regulations, rules and
licences, including but not limited to the Autonomous
Sanctions Act 2011 (Cth) and the Charter of the United Nations Act 1945 (Cth) �("Export Control and Trade
Sanctions Rules").�� You shall
comply with the Export Control and Trade Sanctions Rules and shall not do
anything which would cause us to be in breach of such Rules.�
41.2 We may, in addition to the
other remedies that may be available to us, refuse to enter into or to perform
any order, and/or immediately terminate the Contract without notice of default
or legal action being required and without being liable to pay compensation of
any kind whatsoever for damage caused if we determine, at our sole discretion,
that entry into to the Contract and/or performing any obligations or exercising
any rights under the Contract might cause you or us to violate any applicable
Export Control and Trade Sanctions Rules.�
We assume no responsibility or liability for your failure or inability
to obtain any required relevant export approval.
41.3 You shall protect, indemnify
and hold us harmless from any fines, damages, costs, losses, liabilities, fees
and penalties incurred by us as a result of your errors, failures or omissions to
comply with this Condition 41 and/or any termination pursuant to this
Condition. Your obligations under this Condition 41 shall survive termination
of this Contract for any reason whatsoever.
You will not in connection with the Contract or the Goods, offer, pay,
promise to pay, or authorize the giving of any financial or other benefit to
any person for the purpose of obtaining an improper advantage, or otherwise
conduct yourself in a manner contrary to the Bribery Act 2010 (UK), US Foreign Corrupt
Practices Act or other applicable anti-bribery laws. We may, in addition to the
other remedies that may be available to us, terminate this Contract immediately
on written notice, where we reasonably believe that you have breached this
Condition and you shall indemnify us from all damages, penalties, fines and/or
costs of any kind arising from, or relating to, any such breach.