Sales Terms & Conditions

These Terms & Conditions govern all sales and quotations by Stirlings Performance Steels Pty Ltd (ABN 79 625 765 200) trading as Stirlings Performance Steels (“Company”) to any purchasing party (“Customer”).

1. GOVERNING TERMS & CONDITIONS

These Terms & Conditions supersede all previous terms and conditions and are the sole terms binding upon the Company, except where otherwise agreed in writing or imposed by law. If any provision is found to be void, invalid or unenforceable, it shall be severed from these terms without affecting the validity of the remaining provisions.

2. TERMS OF PAYMENT

2.1 Goods and services are supplied on a cash-only basis unless the Customer holds an approved credit trading account, in which case payment is due within 30 days of the end of the month in which goods are invoiced. If payment is not received by the due date, all amounts outstanding on all accounts with the Company shall become immediately due and payable. Outstanding balances accrue interest at 2% per annum above Westpac Bank’s benchmark lending rate.

2.2 The Customer is liable for all legal and recovery costs incurred by the Company in pursuing any amounts due, including costs charged on a solicitor/client basis.

2.3 The Company reserves the right to withdraw any credit facility at any time and without notice, at its absolute discretion.

3. QUOTATIONS

3.1 A quotation is valid for 7 days from the date of issue (or such other period as stated), unless expressly withdrawn by the Company. All quotations are subject to the continuing availability of the quoted goods.

3.2 Orders requiring processing to the Customer’s specifications must be accompanied by a written purchase order.

3.3 The Company is not bound by any conditions attached to the Customer’s order or acceptance of a quotation unless those conditions are expressly accepted by the Company in writing.

3.4 All prices are exclusive of handling, delivery, agent charges, sales tax and other levies unless otherwise stated in writing. Any charge or duty not applicable at the time of quotation but subsequently levied by legislation or government policy shall be payable by the Customer.

3.5 Quotations contain commercially sensitive information. The Customer must not disclose the contents of any quotation, in whole or in part, to any third party without the prior written consent of the Company.

4. INSPECTION & ACCEPTANCE

4.1 The Customer must examine all goods immediately upon delivery. Goods will be deemed accepted as to description, quality and quantity unless the Company is notified in writing of any discrepancy within 3 working days of delivery. Claims of this nature will not be accepted after this period, unless required by law.

4.2 Where pre-delivery inspection is required, the Customer must complete such inspection within the time period notified by the Company. Failure to inspect, or failure to provide written notice of non-compliance within that period, constitutes acceptance of the goods.
The Customer may not subsequently reject goods for defects that inspection would have revealed.

4.3 Where the Customer provides timely written notice of a defect or non-compliance following inspection, the Company reserves the right to obtain the manufacturer’s or agent’s opinion and to inspect or test the goods before they are used or sold.

4.4 Where a defect was not apparent after careful inspection and only becomes evident later, the Customer must notify the Company in writing immediately upon discovery. This obligation applies even where goods have been incorporated, processed or manufactured into finished products or transferred to a third party.

5. RETURNS

Goods processed to the Customer’s specifications are non-returnable. All other goods may be returned within 14 days of delivery, in original and undamaged condition, if the Company has provided prior written authorisation. Freight and associated costs are at the Customer’s expense.

The Company reserves the right to levy a handling and restocking fee of up to 25% of the sale price on all returned goods.

6. PASSING OF PROPERTY & RISK

6.1 Risk in the goods passes to the Customer upon loading onto the delivery vehicle, placement into the Customer’s custody, or movement at the Customer’s direction — whichever occurs first. Where the Company or its agents effect delivery, risk passes when unloading commences at the Customer’s or designated premises.

6.2 Legal title in the goods does not pass to the Customer until full payment has been received by the Company for those goods and all other goods supplied under any account.

6.3 Until legal title passes, the Customer holds the goods as bailee for the Company and must store them securely and in a manner that clearly identifies them as the Company’s property.
The Customer must keep the goods free of any charge, lien or encumbrance.

6.4 The Customer may use, incorporate or agree to sell the goods in the ordinary course of its business prior to legal title passing, subject to these terms.

6.5 Where goods are sold by the Customer before title has passed, the Customer must hold in trust for the Company that portion of the sale proceeds equal to the amount owed to the Company in respect of those goods.

6.6 If payment is not received by the due date, or in the event the Customer becomes insolvent, enters receivership, administration or liquidation, the Customer must, upon request, deliver the goods to the Company. The Company and its agents are irrevocably authorised to enter any premises where the goods may be located and repossess them. The Company accepts no liability for costs or losses arising from repossession, and the Customer agrees to indemnify the Company against any related claims.

6.7 If repossession is not possible, the Company may bring an action for the full sale price of the goods, notwithstanding that legal ownership has not yet transferred. All legal costs of recovery are payable by the Customer on a solicitor/client basis.

7. DELIVERY OF GOODS

7.1 Delivery dates are indicative only and do not form part of the contract. Delays in delivery do not constitute a breach of contract, and the Customer is not entitled to cancel the contract or claim compensation unless delivery is guaranteed in writing by the Company.

7.2 The Company will make all reasonable efforts to deliver goods by any agreed date but accepts no liability for consequential, indirect or other loss arising from failure to deliver at any agreed time.

7.3 The Company may extend delivery timeframes, or cancel all or part of a contract without liability, where delivery is prevented or delayed due to force majeure events, including but not limited to: strikes, lockouts, industrial disputes, raw material shortages, plant or transport breakdown, late receipt of Customer specifications, supplier delays or any other

cause beyond the Company’s reasonable control.

7.4 Where a force majeure delay is prolonged and the Customer can demonstrate that its operations are materially affected or it is in breach of a third-party contractual commitment, the Company may, upon written request, agree to cancel the outstanding delivery.

7.5 The method of delivery is at the Company’s discretion and at the Customer’s cost unless otherwise specified. The Company may charge for storage, demurrage, delayed acceptance or any unforeseen costs not covered in the contract documentation.

7.6 Where the Customer fails to take delivery when goods are ready, the Company may store the goods at the Customer’s cost and risk, including in outdoor storage if necessary.

7.7 Unless otherwise agreed, goods supplied will be of merchantable quality, with tolerances of dimension, strength and weight in accordance with the Company’s standard specifications for that type of goods.

7.8 Unless otherwise specified, the quantity supplied may vary by up to 10% above or below the quantity ordered.

8. WARRANTY & INDEMNITIES

8.1 The Company makes no undertaking as to the suitability of goods for any specific application. The Customer is solely responsible for satisfying itself that goods are fit for their intended use before incorporating, processing or manufacturing them.

8.2 Subject to the Competition and Consumer Act 2010 (Cth), where the Company is liable for breach of an implied condition or warranty, that liability is limited to one of the following, as determined by the Company:

(a) for goods — replacement, repair, or payment of the cost of replacement or repair;

(b) for services — re-supply of the services, or payment of the cost of re-supply.

8.3 All other conditions, warranties and representations not expressly set out in these Terms & Conditions are excluded. No implied terms, inducements or collateral contracts are relied upon by the Customer.

8.4 The Company accepts no liability of any nature for loss, damage, death or injury — including consequential loss or loss of profit — arising from the use or delivery of goods prepared, manufactured or dispatched to the Customer’s specifications, including claims relating to intellectual property infringement, product defect or unsuitability. The Customer agrees to indemnify the Company in full against all claims, costs, damages and legal expenses arising from the Customer’s use of the goods or associated services.

8.5 Goods are supplied subject to the chemical, mechanical and physical standards of the original manufacturer, and carry only such warranty as that manufacturer specifies. The Company provides no warranty beyond this.

8.6 The Company will take reasonable care of any tools or models supplied by the Customer. Such tools and models remain the Customer’s responsibility for insurance purposes, and repair costs are to be borne by the Customer.

9. ADVICE

Subject to Clause 8, any advice, recommendation, information, assistance or service provided by the Company regarding the use or application of goods is given in good faith and without liability. The Customer is responsible for independently verifying the accuracy and suitability of such information for its intended purposes.

10. CONSIGNMENT STOCK

Goods are supplied on a consignment basis only where this is expressly confirmed in writing by the Company and is subject to a separate Agreement.

11. PERSONAL PROPERTY SECURITIES ACT (PPSA)

11.1 The Customer acknowledges that the supply of goods gives rise to a security interest as defined under the PPSA, and the Company may exercise all rights available to it under the contract and the PPSA.

11.2 The Company may register its security interest on the PPSR at any time, including before that interest attaches to the goods.

11.3 The Company may register a Purchase Money Security Interest (PMSI) as defined under section 14 of the PPSA, including for commercial consignments, and is entitled to register the relevant Financing Statement to secure its interest.

11.4 The Company’s security interest secures all amounts owed by the Customer for goods supplied and all proceeds of those goods, in accordance with Clause 6.

11.5 The Customer agrees to provide all reasonable assistance to facilitate the Company’s registration of its security interest.

11.6 The Customer waives its right to receive a Verification Statement under section 157 of the PPSA and its right to request information under section 275, except as provided in section 275(7).

11.7 Notwithstanding any provision of the PPSA including section 115, the Customer must not act in any manner inconsistent with the terms of this contract.

12. RIGHT TO TERMINATE CONTRACT

Without prejudice to its other rights and remedies, the Company may terminate or suspend all or any part of any contract with the Customer if the Customer: fails to comply with any of these Terms & Conditions; receives an unfavourable credit report; becomes insolvent; enters into any composition or arrangement with creditors; or has a manager, receiver, liquidator, provisional liquidator or administrator appointed to its business.

13. GOVERNING LAW

These Terms & Conditions and all contracts incorporating them are governed by and construed in accordance with the laws of the state in Australia in which the transaction occurred. The Customer submits to the non-exclusive jurisdiction of the courts of the state in Australia in which the transaction occurred for all matters arising out of or in connection with any such contract.