|  | MOBIL OIL AUSTRALIA PTY LTD ABN 88 004 052 984
STANDARD TERMS AND CONDITIONS
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APPLICATION OF CONDITIONS
Except as otherwise agreed in writing, these Standard Terms and Conditions
exist as a contract between Seller and Buyer and override any inconsistent
terms and conditions in any document or other communication used by Buyer in
relation to this contract or implied by trade, custom or course of dealing.
TERM
If Buyer and Seller agree in writing, this contract may be extended for annual
or other agreed periods after the expiry of the specified contract period.
ORDERS & DELIVERY
Seller will use all reasonable efforts to meet Buyer's requested delivery
schedule specified in Buyer's order. If a delay is caused by something beyond
Seller's control, the delivery is extended accordingly. Time is not of the
essence of this Article and Seller is not liable for any loss or damage to
Buyer resulting from any delay in delivery. Nothing in this contract
entitles Buyer to any priority of supply in relation to any product sold
hereunder as against Seller's other customers. Delivery of product is subject
to, and will be made in accordance with, Seller's minimum and maximum quantity
policy in force from time to time, and unless otherwise agreed in writing will
be at the cost of the Buyer.
TITLE
Title to the products passes to the Buyer when they have been delivered to the
Buyer or received into its care and control.
RISK & INSURANCE
Risk (which includes responsibility for loss of or damage to) in any products
sold under this contract passes to Buyer when those products are delivered or
transferred to Buyer's carrier. This applies even if Buyer postpones
collection or refuses to collect the products. Buyer must keep the products
insured against all risks usually insured against for products of that kind
from the time the risk passes to Buyer until the property in those products
also passes to Buyer
INCREASED COSTS & GOVERNMENT ACTION
Seller is entitled to increase the price (or reduce any rebates given to
Buyer) of products to the extent of the increase, prior to the date payment is
due, in any of the following:
(a) freight, marine all risks and other insurances;
(b) shipping costs and expenses;
(c) foreign exchange, customs and primage duties;
(d) costs of sub-contracted items of work and goods; and
(e) sales tax, GST and/or any other duty, charge, levy, impost or tax imposed
in relation to the products.
Notwithstanding anything in this contract, in the event that any government,
government agency or authority takes any action whatsoever which has, or will
have, the effect, directly or indirectly of reducing the price for any product
or increasing the operating or production costs for any product then Seller
may reduce any rebate given to Buyer or increase the price for the products by
the amount of the reduction in price or increase in costs (as the case may be).
OTHER PRICE ADJUSTMENTS
Seller may, in its absolute discretion, vary the price of the products for any
other reason by giving Buyer notice of the variation. The new price for
products is effective for any product supplied after Seller has given Buyer
notice of the new price. If the Buyer objects to the new price it may by
written notice to the Seller cancel any outstanding or unfulfilled orders
without charge. If Seller is prevented from continuing or making any changes
to the price by act of government authority, Seller may terminate this
contract by giving Buyer thirty (30) days prior written notice.
TAXES
Unless otherwise expressly stated in this contract, the price for any products
sold by Seller to Buyer does not include any tax, excise, levy, duty or other
governmental charge imposed upon or value added to the production, sale,
storage, use or transportation of any of those products, all of which must be
paid (or reimbursed to the Seller) by Buyer. Buyer shall provide Seller, upon
request, with properly completed exemption certificates for any tax from which
Buyer is entitled to (and claims) an exemption
GST
.(a) In this Article, the expressions consideration, GST, input tax credit,
supply, tax invoice, recipient created tax invoice, recipient and taxable
supply have the meanings given to those expressions in the A New Tax System
(Goods and Services Tax) Act 1999 (Cth).
(b) Unless otherwise expressly stated, all prices or other sums payable or
consideration to be provided under or in accordance with this contract are
exclusive of GST.
(c) If GST is imposed on any supply made under or in accordance with this
contract, the recipient of the taxable supply must pay to the supplier an
additional amount equal to the GST payable on or for the taxable supply
subject to the recipient receiving a valid tax invoice in respect of the
supply at or before the time of payment. Payment of the additional amount
will be made at the same time as payment for the taxable supply is required to
be made in accordance with this contract.
(d) If this contract requires a party (First Party) to pay for, reimburse, set
off or contribute to any expense, loss or outgoing (Reimbursable Expense)
suffered or incurred by the other party (Other Party), the amount required to
be paid, reimbursed, set off or contributed by the First Party will be the sum
of the amount of the Reimbursable Expense net of input tax credits to which
the Other Party is entitled in respect of the Reimbursable Expense (Net
Amount), and if the Other Party’s recovery from the First Party is a taxable
supply, any GST payable in respect of that supply, such that after the Other
Party meets the GST liability, it retains the Net Amount.
FINANCIAL RESPONSIBILITY
Any credit terms extended by Seller to Buyer may be immediately withdrawn or
amended at Seller's sole discretion upon any failure by Buyer to pay Seller
under this contract or any other agreement between Buyer and Seller or
otherwise.
Seller may at any time during the term of this contract, if it in good faith
believes that the prospect of payment or performance by Buyer is impaired,
require reasonable additional security to be provided for or on behalf of
Buyer. If Seller does require additional security, Buyer must immediately
procure that security to Seller in the manner and form required by Seller.
FINANCIAL INFORMATION
Seller may at any time during the term of this contract request financial
information to facilitate Seller's review of the credit provided to Buyer and
the adequacy of any security. If requested by Seller, Buyer must immediately
provide to Seller:
a) a statement of the financial position of Buyer prepared as at the balance
date of the latest financial period;
b) a statement of financial performance and cash flow statement for the latest
financial period; and
c) a projected cash flow statement for the next financial period.
CREDIT; PAYMENT
If the solvency or financial responsibility of Buyer becomes impaired or
unsatisfactory to Seller, advance cash payment or satisfactory security must
be given by Buyer upon demand by Seller, and shipments of product may be
withheld by Seller until such payment or security is received. If Buyer fails
to pay any amounts payable on time Seller has the right, in addition to any
other rights it may have at law, to do all or any of the following (1) impose
interest on the amount not paid on time until the outstanding amount is paid.
The interest will be calculated pursuant to the Penalty Interest Rate Act 1983
(Vic) as amended and varied from time to time and it will be calculated daily
and capitalised monthly and is payable on demand, (2) cancel or withhold any
further deliveries to the Buyer, or (3) repossess the product in accordance
with this contract.
SET OFF
Seller may at any time and without notice to Buyer, apply, combine,
consolidate or merge;
a) any amount standing to the credit of Buyer held in the accounts of Seller;
or any other amounts that Seller is required to pay to Buyer under this
contract or on any other account whatsoever;
b) by way of set-off, lien or counterclaim in or towards satisfaction of any
money at any time due and payable, or which may become due and payable, by the
Buyer to Seller under this contract or under any other agreement
LIMITED WARRANTY
THE PRODUCTS SOLD HEREUNDER SHALL BE OF MERCHANTABLE QUALITY AND SHALL CONFORM
TO SELLER’S CURRENT STANDARD SPECIFICATIONS OR SUCH OTHER SPECIFICATIONS AS
SHALL HAVE BEEN MADE EXPRESSLY A PART OF THIS CONTRACT. SELLER MAKES NO OTHER
WARRANTY, EXPRESS OR IMPLIED, OF FITNESS FOR PARTICULAR USE OR OTHERWISE,
WHETHER USED SINGLY OR IN COMBINATION WITH OTHER SUBSTANCES OR IN ANY PROCESS.
Buyer acknowledges that in entering into this contract, it does not do so on
the basis of, and does not rely upon, any representation, warranty or other
provision (except as expressly provided in this contract) given by Seller and
all conditions, warranties or other terms implied by statute or common law are
excluded to the fullest extent permitted by law. Buyer must (a) not give any
person any guarantee, warranty, inducement or benefit nor make any
representations on behalf of Seller, and (b) not make any claim in respect of
any product, including as to the quality, performance or manufacture of such
product that is inconsistent with legal or regulatory requirements or that is
incorrect or misleading in any way, and (c) co-operate fully with Seller's
employees and other contractors and provide all assistance reasonably required
by Seller from time to time, and (d) comply with all reasonable directions
from time to time given by Seller.
LIMITATION OF LIABILITY
The liability of Seller for defective or nonconforming products or for breach
of any condition or warranty implied by law is in the case of products which
are not of a kind ordinarily acquired for personal, domestic or household use
or consumption limited to the replacement of those products (or supply of
equivalent products) by Seller without additional charges, or in lieu thereof,
at Seller’s option, the payment by Seller of the cost of replacing the
products (or of acquiring equivalent products) upon return of the products at
Seller’s expense. Buyer must deliver defective product to Seller's premises
or other premises nominated by Seller within 7 days after the date when the
defect is discovered.. If there is a claim against Buyer by any third party
in relation to any of the warranties made in respect of the products, Buyer
must (a) notify Seller within fourteen (14) days of receipt of a claim from a
third party specifying in reasonable detail particulars of the claim and
breach of warranty, and (b) give Seller the opportunity to assist it in the
defence and settlement of any such claim. Buyer must at all times indemnify
and hold harmless Seller and its officers, employees and agents (those
indemnified) from and against any loss (including legal costs and expenses) or
liability incurred or suffered by any of those indemnified and all actions,
proceedings and claims or demands made against those indemnified to the extent
that they were caused directly or indirectly by a breach by Buyer of its
obligations under this contract or any wilful, unlawful or negligent act or
omission of Buyer or its employees or agents. NOTWITHSTANDING THE ABOVE
REGARDLESS OF THE CIRCUMSTANCES AND TO THE FULLEST EXTENT PERMITTED BY LAW,
SELLER’S TOTAL LIABILITY TO BUYER FOR ANY AND ALL CLAIMS, LOSSES OR DAMAGES
ARISING OUT OF ANY CAUSE WHATSOEVER, WHETHER BASED IN CONTRACT, NEGLIGENCE OR
OTHER TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE, SHALL IN NO
EVENT EXCEED THE PURCHASE PRICE, OR REPLACEMENT, OF THE PRODUCTS IN RESPECT TO
WHICH SUCH CAUSE AROSE AND IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL,
INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR LOSS OF PROFITS.
Any cause of action that Buyer may have against Seller which may arise under
this contract must be commenced within one (1) year after the cause of action
has accrued.
SAFETY AND HEALTH INDEMNITY
Seller shall furnish to Buyer Material Safety Data Sheets, including warnings
and safety and health information concerning the products and/or the
containers for such products sold hereunder. Buyer must comply with Seller's
requirements in relation to storage and handling of the product, and maintain
appropriate equipment and facilities to enable it to comply with its
obligations at all times. Buyer agrees to communicate such warnings,
information and requirements to all persons Buyer can reasonably foresee may
be exposed to or may handle such materials or containers, including but not
limited to Buyer’s employees, agents, contractors or customers. If Buyer
fails to communicate such warnings, information and requirements, Buyer agrees
to defend and indemnify Seller against any and all liability arising out of or
in any way connected with such failure, provided however, that if Seller has
contributed to such liability, Buyer’s indemnity to Seller shall be reduced by
the proportion in which Seller contributed. Seller will provide Buyer with
reasonable notice and opportunity to defend in the event any claim or demand
is made on Seller as to which such indemnity relates. Seller and Seller's
agents may enter and inspect any premises controlled by Buyer to audit Buyer's
compliance with this Article.
SPECIFICATION CHANGES; PRODUCT DISCONTINUANCE
Seller may at its discretion (a) change or alter the quality or specifications
of any of the products hereunder, or (b) discontinue the manufacture of any
such products, or (c) discontinue the manufacture of any products at a
particular manufacturing or blending facility. If specifications for any
products covered hereunder are specifically set forth herein, Seller shall
give Buyer thirty (30) days written notice of any proposed change. If such
proposed change would, in the opinion of Buyer, materially affect the
performance of such products, Buyer may terminate this contract as to such
products. Seller shall give Buyer sixty (60) days written notice of
discontinuance of the manufacture of any product(s) covered hereunder and the
contract shall terminate as to such product(s) at the end of such period. If
Seller elects at its option to discontinue the manufacturing of any products
at a particular location or blending facility, and Seller is unable to provide
comparable product to Buyer from another facility, then Seller may terminate
this contract as to such products by giving Buyer sixty (60) days written
notice of such termination.
FAILURE IN PERFORMANCE
(a) No liability shall result to either Seller or Buyer from delay in
performance or non-performance in whole or in part caused by circumstances
reasonably beyond the control of the party affected, including, but not
limited to, acts of God, fire, flood, war, explosion, breakdown or labor
trouble; embargoes or other import or export restrictions; shortage or
inability to obtain energy, equipment, transportation, product deliverable
hereunder, crude petroleum or other feedstock from which said product is
derived; or good faith compliance with any regulation, direction or request
(whether valid or invalid) made by any governmental authority or person
purporting to act therefor.
(b) Regardless of the occurrence or non-occurrence of any of the causes set
forth in paragraph (a) above, if for any reason, supplies of any product
deliverable hereunder or of crude petroleum or other feedstock from which such
product is derived from any of Seller’s existing sources are curtailed or
cutoff or are inadequate to meet Seller’s own requirements and its obligations
to its customers, Seller’s obligation hereunder during such period of
curtailment, cessation or inadequacy shall at its option be reduced to the
extent necessary in Seller’s sole judgment to allocate among Seller’s own
requirements and its customers (whether under contract or not), such product
as received and as may be available in the ordinary and usual course of
Seller’s business from any such existing sources of supply at the location(s)
from which deliveries hereunder are normally shipped.
(c) Seller shall not be obligated to purchase or otherwise obtain other
supplies of such product, crude petroleum or other feedstock from which such
product is derived to make up inadequate supplies or to replace the supplies
so curtailed or cut off. Seller shall not be obligated to make up deliveries
omitted or curtailed hereunder and any such deficiencies in deliveries shall
be canceled from the contract with no liability to either party therefor.
COMPLIANCE WITH LAWS AND REGULATIONS
Buyer must, at Buyer's expense, apply for and maintain any and all licences,
permits and approvals and governmental authorisations required in order to
enable Buyer to comply with its obligations under this contract and Buyer
agrees to indemnify and hold Seller harmless against all losses, claims,
causes of action, penalties and liability arising out of Buyer’s failure to
comply with all applicable Federal, State and Local laws, ordinances,
regulations, rules and orders.
INTELLECTUAL PROPERTY RIGHTS
Buyer acknowledges and agrees that nothing contained or implied in this
contract or the performance of the terms of this contract gives Buyer
ownership of or gives rise to any proprietary interest of Buyer in Seller's
name, trade marks, trade names or any other intellectual property rights of
Seller and its related bodies corporate.
CONFIDENTIALITY
The terms of this contract and its subject matter (Confidential Information)
are confidential and may not be disclosed by a party to any person during or
after the term of the contract except (a) to a party’s employees, legal
advisers and auditors (provided that party ensures that the relevant person is
aware that the Confidential Information is confidential and does not further
disclose the Confidential Information except in accordance with this clause),
or (b) with the consent of the other party, or (c) if required by law or the
rules of any applicable securities exchange, or (d) if the Confidential
Information is generally and publicly available. Each party must not use the
Confidential Information for any purpose other than in connection with the
performance of this contract or as permitted by this Article.
TERMINATION
This contract may be terminated by Seller for any reason and at any time by
giving Buyer thirty (30) days written notice of termination. In addition,
Seller may by written notice immediately terminate this contract in any of the
following circumstances: (a) Buyer commits any breach of any provision of this
contract and has failed to remedy such breach within thirty (30) days of
receipt of written notice requiring it to do so, or (b) Buyer is placed in
liquidation, provisional liquidation or administration, or (c) Buyer is
taken under section 459F(1) of the Corporations Act 2001 (Cth) to have failed
to comply with a statutory demand, unable to pay its debts as and when they
fall due or otherwise insolvent, or (d) the appointment of a controller,
receiver, receiver and manager, administrator or trustee in respect of all or
any part of Buyer's undertaking or property, or (e) Buyer ceases to carry on
all or substantially all of its business, or makes an assignment for the
benefit of, or enters into any arrangement or compromise with any of Buyer's
members or creditors, or (f) Buyer takes any step that is reasonably likely to
result in Buyer becoming an insolvent under administration (as defined in
section 9 of the Corporations Act 2001 (Cth)), or (g) Buyer ceases for any
reason to be able to be lawfully able to carry out al the transactions which
this contract contemplated may be carried out by it, or (h) a material
provision of this contract that purports to impose an obligation on Buyer is
or becomes void, voidable, illegal or unenforceable or of limited force (other
than because of equitable principles or laws affecting creditors' rights
generally, or (i) a notice of deregistration of Buyer under sections 601AA(5)
or 601AB(5) of the Corporations Act 2001 (Cth) is given to or in respect of
Buyer, or (j) an event analogous to the events referred to in this Article
happens in connection with Buyer under the laws of any jurisdiction.
UPON TERMINATION
Upon the termination of this contract for any reason whatsoever: (a) Seller's
obligation to supply the products shall cease, and (b) outstanding unpaid
invoices rendered by Seller in respect of the products shall become
immediately payable by Buyer and invoices in respect of products delivered
prior to termination but for which an invoice has not been remitted shall be
payable immediately upon remittance of the invoice, and (c) Buyer must deliver
up to Seller or otherwise dispose of as Seller directs any other property of
Seller which Buyer may have in its possession or control.
BUSINESS STANDARDS
(a) Buyer shall establish precautions to prevent its employees or
subcontractors from making, receiving, providing or offering any substantial
gifts, extravagant entertainment, payments, loans, or other considerations to
the employees of the Seller and/or their families and/or third parties in
connection with this contract.
(b) Buyer agrees that all financial settlements, billings, and reports
rendered to the Seller or its representative shall reflect properly the facts
about all activities and transactions in relation to this contract, which data
may be relied upon as being complete and accurate in any further recordings
and reporting made by the Seller or its representatives for whatever purpose.
(c) Buyer agrees and will secure agreement by its subcontractors to comply
with all applicable laws in performance under this contract. Notwithstanding
anything in this contract to the contrary, no provision shall be interpreted
or applied so as to require the Seller or Buyer to do, or refrain from doing,
anything which would constitute a violation of, or result in a loss of
economic benefit under, United States anti-boycott and other export laws and
regulations. Buyer represents that it shall not make any improper payments of
money or anything of value to a government official (whether appointed,
elected, honorary, or a career government employee) in connection with this
contract, nor shall it make improper payments to a third party knowing or
suspecting that the third party will give the payment, or a portion of it, to
a government official.
EQUIPMENT
If any equipment associated with the supply of lubricants is provided by Mobil
to the Buyer during the term of this Agreement, unless the parties agree
otherwise in writing, ownership of and responsibility for that equipment
transfers to the Buyer at the time and date of delivery of the equipment to
the Buyer's premises
AUDIT
Buyer shall maintain and preserve, in accordance with generally accepted
accounting procedures, accurate documentation and data (including but not
limited to written and electronic records, books of account, correspondence,
plans, memoranda, receipts, and documentation of related systems and controls)
relating to the supply of product under this Agreement and any gift or
entertainment expenses incurred by the Supplier relating to the Agreement. At
all reasonable times, the Buyer shall permit employees and agents of the
Supplier to examine and/or reproduce such documentation and data and to
interview the Buyer's personnel in connection therewith, as necessary for that
Supplier to monitor and/or verify:
a) the quantity and quality of product delivered to the Buyer by the Supplier;
and
b) the Buyer's compliance with the terms and conditions of this Agreement
The provisions of this clause shall be applicable during the term of this
Agreement and for a period of three (3) years thereafter. If errors or
deficiencies are identified by an audit or otherwise, the Buyer shall take
prompt corrective action and advise the Supplier thereof.
AMENDMENT
Seller may amend this contract by 14 days prior notice in writing to Buyer. If
Buyer does not notify Seller of any objections to the amendments within 14
days of receiving the notice and/or requests supply of products after notice
by Seller is given, Buyer acknowledges and agrees that it will be bound by
this contract as amended by Seller. In all other cases, no modification of
this contract shall be of any force or effect unless such modification is in
writing and signed by both Buyer and Seller; and no modification shall be
effected by the acknowledgment or acceptance of purchase order forms
containing terms or conditions at variance with those set forth hereon
MISCELLANEOUS
This contract shall not be assigned in whole or in part by Buyer or Seller
without the written consent of the other party, except that Seller may, upon
written notice to Buyer, assign its obligation hereunder to any corporation,
subsidiary of or affiliated with Seller. This contract binds and benefits the
parties and their respective successors and permitted assigns. No waiver by
either party of any breach of any of the terms and conditions herein contained
shall be construed as a waiver of any succeeding breach of the same or any
other term or condition. The entire contract is contained herein and there
are no oral understandings, representations or warranties affecting it. This
contract cancels and supersedes any prior written contract between parties
covering the subject matter of this contract. If any provision of this
contract offends any law applicable to it and is as a consequence illegal,
invalid or unenforceable then (a) where the offending provision can be read
down so as to give it a valid and enforceable operation of a partial nature it
must be read down to the extent necessary to achieve that result, and (b) in
any other case, the offending provision must be severed from this contract in
which event the remaining provisions of this contract operate as it the
severed provision had not been included. Unless this contract expressly
provides otherwise, a party has no right of set-off or counterclaim against a
payment due to another party. Nothing in this contract may be construed as
creating a relationship of partnership, of principal and agent or of trustee
and beneficiary. A term or condition of, or act done in connection with, this
contract does not operate as a merger of any of the rights and remedies of the
parties under this contract and those rights and remedies of the parties under
this contract continue unchanged. Each term of this contract that has not
been carried into effect at the termination of this contract survives the
termination. Money amounts in this contract are stated in Australian currency
unless otherwise specified. All notices, requests, demands and other
communications required or permitted to be given under this contract shall be
in English and in writing, either delivered by hand to the addressee, or sent
by mail or airmail, or by reputable overnight or international courier, or by
facsimile or other electronic transmission to such addressee, and shall be
effective on the date of receipt. No notice shall be deemed to be received on
a day that is not a business day in the jurisdiction in which notices are to
be addressed to such addressee. Any such notice shall not be effective until
the next business day in such jurisdiction. This contract shall be construed
and enforced under the laws of Victoria, Australia and the parties submit to
the non-exclusive jurisdiction of the courts of Victoria and the Commonwealth
of Australia in respect of all matters or things arising out of this contract.
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