General Conditions of Sale
TotaEnergies Marketing Australia Pty Ltd ACN 149 501 922
Terms & Conditions of Sales
1. Incorporation into all agreements
1.1 These Terms shall be incorporated into all agreements for supply of goods and services, present or future, by TotalEnergies Marketing Australia Pty Ltd ACN 149 501 922 and its related bodies corporate ("Seller") to any customer ("Buyer") not withstanding any terms appearing in documentation used by the Buyer until notification in writing from the Seller to the Buyer that they do not apply, are to be changed or replaced.
2.1 In these Terms:
2.1.1 "Buyer's Order" means an order for Goods placed with the Seller by or on behalf of the Buyer either orally or in writing and whether or not in response to a Quotation;
2.1.2 "Goods" means the items purchased from time to time by the Buyer pursuant to a Buyer's Order;
2.1.3 "Payment Period" means 30 days from the end of the month in which the Goods were delivered.
2.1.4 "Purchase Price" means the price of the goods specified by the Seller and payable by the Buyer subject at any time without notice to variation to cover additional costs to the Seller where;
(a) any export or import levy, duty or other tax is imposed on the goods in addition to any levy, duty or other tax at the rate calculated by the Seller;
(b) any freight charges are incurred by the Seller for the transport of the Goods in addition to the charges calculated by the Seller;
(c) any insurance costs are incurred by the Seller for the goods in addition to the costs calculated by the Seller;
(d) there is a substantial increase in the cost to the Seller of any materials making up the Goods that if not passed on to the Buyer would cause hardship to the Seller;
(e) any loss, expense or penalties are incurred due to the unavailability or absence of any necessary import license and / or permit; or
(f) any loss or expense arises from the late arrival of the Goods or documents in relation to the Goods, the delays of customs officers or other authorities unless such late arrivals or delays are due to the Seller's neglect.
2.1.5 "Quotation" means an official offer by the Seller to sell the Goods for the Purchase Price in writing or if made orally as confirmed by the Seller in writing; and
2.1.6 "Terms" means these terms and conditions of sale as amended from time to time by the Seller.
3.1 In these Terms:
3.1.1 words importing the singular include the plural and vice versa;
3.1.2 words importing a gender include any gender;
3.1.3 an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any governmental
3.1.4 a reference to anything includes a part of that thing;
3.1.5 a reference to any statue includes varying, consolidating or replacing them;
3.1.6 a reference to $ or dollars shall be to Australian currency; unless otherwise stated and
3.1.7 a reference to anything in writing shall include anything sent by e-mail or facsimile.
4. Offer and acceptance
4.1 Quotations of the Seller shall specify a Purchase Price. Unless otherwise specified the Quotation stated shall be valid for fourteen (14) days from the date of the Quotation. Thereafter the Quotation shall be subject to review at the discretion of the Seller.
4.2 The placement of a Buyer's Order with the Seller shall constitute acceptance of these Terms.
4.3 Where the Seller is not in possession of the Goods at the time of receipt of the Buyer's Order, the Seller's obligation to deliver the Goods shall be subject to the Seller being able to confirm the Buyer's Order with a suitable supplier within twenty-eight (28) days from the date of receipt of the Buyer's Order.
4.4 The Seller reserves the right to accept or reject the Buyer's Order for any reasonable reason at any time.
4.5 In the event that the Seller rejects a Buyer's Order under Clause 4.4, the Seller will notify the Buyer of that rejection and the reason for rejection via email within 48 hours after the placement of the Buyer's Order. The Seller will not be liable to the Buyer for any loss or that of any third party for the rejection of a Buyer's Order.
4.6 If the Seller is unable to contact the Buyer in relation to the Buyer's Order under these Terms using the contact details provided by the Buyer after having made reasonable attempts to contact the Buyer, the Seller may, in its absolute discretion, reject the Buyer's Order in accordance with this clause 4.
4.7 Any changes the Buyer wishes to make to a Buyer's Order already accepted by the Seller must be requested in writing to the Seller and the Seller may, acting reasonabl
5.1 The Buyer must pay GST on a Taxable Supply made to it under this agreement, in addition to any Consideration (excluding GST) that is payable for that Taxable Supply. It must do so at the same time and in the same way as it is required to pay the Consideration for the Taxable Supply.
5.2 Under these Terms, the Seller must issue a Tax Invoice to the Buyer, setting out the amount of the GST payable by the Buyer.
5.3 If a party is required under these Terms to indemnify another party, or to make a reimbursement or contribution to another party, and that other party can obtain an Input Tax Credit on an acquisition associated with that indemnity, reimbursement or contribution, the amount the party is required to pay is:
5.3.1 reduced by the amount of that Input Tax Credit; but
5.3.2 increased by any GST payable by that other party in respect of the indemnity, reimbursement or contribution.
5.4 In any case where a supply has been treated by the Seller as not being subject to GST or GST free and GST is subsequently found to be payable, the Seller may recover that amount of GST from the Buyer.
5.5 For the purposes of this clause 5, "Consideration", "GST", "Input Tax Credit", "Taxable Supply" and "Tax Invoice" shall have the meaning attributed to those terms in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
6.1 In consideration for the Seller providing Goods to the Buyer, the Buyer agrees to pay the Seller in accordance with this clause 6.
6.2 The Purchase Price for the Goods will be detailed in an invoice issued at the same time the Goods are dispatched to or at the direction of the Buyer. The Purchase Price is payable on or before the expiration of the Payment Period. Payment may be made by credit card, debit card, direct deposit or cheque.
6.3 Where payment is made by cheque, payment will not be deemed to have been received until the cheque is duly met on presentation and cleared funds are credited to the Seller's account.
6.4 If the Purchase Price is not paid at the expiration of the Payment Period, the Seller has a right to reclaim the Goods and at its discretion charge interest on the amount outstanding in accordance with Clause 6.5.
6.5 Overdue accounts may:
6.5.1 be subject to a late payment charge of three percent (3%) per annum (or as otherwise determined from time to time by the Seller) and will be applied pro rata to the total amount due from the date such payment is due until payment is received by the Seller;
6.5.2 appropriate any payment made by the Buyer on any other account in payment of the overdue amount and unless otherwise specified by the Supplier, all payments by the Buyer are to be applied in accordance with section 14(6)(c) of the Personal Property Securities Act 2009 (Cth); or
6.5.2 be forwarded to a debt collection agency and all costs relating thereto or which are otherwise incurred in recovering the overdue amount must be paid by the Buyer immediately on receipt of an invoice from the Seller for those costs.
7.1 Title to the goods shall remain with the Seller until the Purchase Price and all other sums owing by the Buyer to the Seller have been paid in full to the Seller.
7.2 Notwithstanding Clause 7.1, the risk in the Goods (including loss or damage to the Goods and liability arising from the handling, processing, storage, transportation and disposal of the Goods) shall pass to the Buyer upon delivery to the Buyer or their agent or to a carrier nominated by the Buyer.
7.3 The Seller licenses the Buyer to process the Goods.
7.4 Until title in the Goods passes to the Buyer, the Buyer shall, unless otherwise agreed in writing, store the Goods in a manner which clearly identifies the Goods as the property of the Seller.
7.5 The Buyer shall be at liberty to on-sell the Goods prior to payment in full of the Purchase Price to the Seller, as agent for the Seller provided that the Purchase Price owed to the Seller is held by the Buyer in a separate account in trust for the Seller and accounted to the Seller within the time limit specified in Clause 6.1.
8. Exchange rate fluctuations
8.1 Where the Seller is not in possession of the Goods at the time of receipt of the Buyer's Order and the Purchase Price in the Quotation is stated as being subject to exchange rate fluctuations, the Purchase Price payable by the Buyer shall be based upon the exchange rate of the currency specified in the Quotation against the Australian dollar as at the date of receipt by the Seller of an invoice from the Seller's supplier and if as a consequence the Purchase Price changes the Seller shall notify the Buyer in writing as soon as practicable after receipt of an invoice from the Seller's supplier.
8.2 If the Purchase Price increases by more than % due to fluctuation in exchange rate from the date of the Quotation and the date the Seller receives an invoice from its supplier, the Buyer will have 2 Business Days to cancel the Buyer's Order if they do not agree to the new Purchase Price set under Clause 8.1.
9.1 The Seller shall take reasonable efforts to deliver the Goods to the Buyer on the date agreed between both parties as the delivery date.
9.2 Where the Seller is not in possession of the Goods at the time of receipt of the Buyer's Order, the Seller may dispatch or deliver the Goods earlier or later than the time specified (if any) in the Quotation if, acting reasonably, the Seller determines that appropriate transport is not available at a suitable time. The Seller will provide reasonable notice to the Buyer prior to doing so. The Seller shall be entitled to dispatch the Goods in two or more instalments if, in the Seller's reasonable opinion, this is advisable having regard to the transport facilities available, and will provide reasonable notice to the Buyer before doing so.
9.3 The Buyer must ensure the delivery site is accessible to the Seller on the date of delivery and must keep the applicable part of the delivery site clean and safe at least 24 hours in advance of a delivery of Goods.
10. Buyer's Statutory Rights and Liability
10.1 If a supply under these Terms is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law (contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) and any equivalent law), nothing contained in these terms and conditions excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law (or any other law), the exclusion, restriction or modification of which would contravene that law or cause any term of this agreement to be void ("Non-excludable Obligations").
10.2 Except in relation to any Non-excludable Obligation and to the extent permitted by law, the liability of the Seller for any loss or damage including consequential loss which the Buyer may sustain in relation to the Seller's goods or Buyer's use thereof shall be limited to:
10.2.1 the replacement of the Goods or the supply of equivalent goods; or
10.2.2 the repair of the Goods; or
10.2.3 the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
10.2.4 the payment of the cost of having the Goods repaired.
The limitation of liability in this clause 10.2 does not apply in respect of any loss or damage which arises directly from any negligence, fraud, wilful misconduct or breach by the Seller.
10.3 The Seller is not liable for loss or damage arising from any negligence of the Buyer, any accident relating to the Goods which is caused directly or indirectly by the Buyer or any misuse or misapplication of the Goods by the Buyer.
10.4 Except in relation to any Non-excludable Obligation and to the extent permitted by law, the Buyer shall notify the Seller in writing of any claim arising in respect of the supply of any Goods (including any shortage of supply or delivery in damaged condition) within seven (7) days after the delivery of such Goods to the Buyer or his agent. Such notice shall set out full particulars of the claim including the description of the Goods, the date of delivery, the grounds of the claim and the amount of the claim. Where possible the Buyer shall allow the Seller a reasonable opportunity to inspect the Goods at the earliest available opportunity.
10.5 Except in relation to any Non-excludable Obligation and to the extent permitted by law, in the event the limitations of liability contained in this Clause 10 are held to be unenforceable for any reason, the Buyer agrees that, to the fullest extent permissible by law, the maximum aggregate of the Seller's liability to the Buyer (or any third party) will not exceed the amount the Buyer has actually paid for the Goods, except for liability which arises directly from any negligence, fraud, wilful misconduct or breach by the Seller.
11. Force Majeure
11.1 Neither party shall be liable for any failure or delay in the performance of these Terms arising wholly or in part from any circumstances outside the reasonable control of the party including, but not limited to, strikes, lockouts, fire, storm or tempest, shortened hours, shortage, cessation or delays of labour or labour disturbances, riots, civil commotions, wars, armed conflict, pandemic or epidemic, government intervention and/or control, lack or shortage of suitable shipping space or shutting out of cargo by shipowners or government authority at ports or ports of loading, transport delays, failure or partial failure of crops or theft or accidents of any kind.
11.2 If the contingencies in Clause 11.1 occurs with respect to the performance of these Terms by the Seller, the Seller shall have the option of performing its obligations under these Terms by delivery of part of the Goods or of cancelling or suspending or delaying delivery of the Goods or part thereof. Any partial delivery shall be paid for pro rata and the Terms save as to the quantity and the full amount of the Purchase Price, shall apply thereto.
12. Intellectual Property
12.1 The Buyer shall indemnify the Seller against any loss or damage for which the Seller may be held liable in relation to the infringement of any person's intellectual property rights arising from the supply of the Goods, to the extent such loss or damage is caused by the Buyer's misuse of the Goods..
13.1 Except in relation to the Non-excludable Obligations and to the extent permitted by law, any advice, recommendation, information, assistance or service provided by the Seller in relation to the Goods or their application or use is given in good faith, but without any liability or responsibility on the part of the Seller (except for any liability which arises directly from any negligence, fraud, wilful misconduct or breach by the Seller).
14.1 If the Buyer:
14.1.1 fails to pay the Purchase Price on the due date;
14.1.2 fails to perform any of its obligations under these terms or any other agreement with the Seller;
14.1.3 being an individual commits any act of bankruptcy or being a corporation passes a resolution for winding up (except for the purpose of reconstruction); or
14.1.4 has a receiver and manager appointed over any of its property or assets; or
14.1.5 makes an arrangement for the benefit of its creditors or enters into any scheme of arrangement under the provisions of Part 5.1 of the Corporations Act 2001 (Cth); or
14.1.6 has a petition presented for its winding up which is not dismissed within twenty-one (21) days from the date of presentation thereof, then the Seller may, at its option, do any or all of the following:
(a) demand immediate payment of the balance of the Purchase Price;
(b) suspend further supply of the Goods or other goods;
(c) require payment in advance of all deliveries;
(d) enter the Buyer's premises and repossess the Goods and any other goods sold by the Seller to the Buyer for which payment is overdue; or
(e) terminate the supply of the Goods or any other agreement for the supply of goods with the Buyer immediately by written notice to the Buyer.
14.2 The Buyer shall indemnify the Seller against all losses, damages and expenses incurred or sustained by the Seller as a result of the cancellation or partial cancellation of any agreement pursuant to this clause.
14.3 If the Seller:
14.3.1 fails to perform any of its obligations under these terms or any other agreement with the Buyer;
14.3.2 being a corporation passes a resolution for winding up (except for the purpose of reconstruction); or
14.3.3 has a receiver and manager appointed over any of its property or assets; or
14.3.4 makes an arrangement for the benefit of its creditors or enters into any scheme of arrangement under the provisions of Part 5.1 of the Corporations Act 2001 (Cth); or
14.3.5 has a petition presented for its winding up which is not dismissed within twenty-one (21) days from the date of presentation thereof,
then the Buyer may, at its option, terminate any Order or agreement for the supply of Goods with the Seller immediately by written notice to the Seller.
14.4 The Seller shall indemnify the Buyer against all losses, damages and expenses incurred or sustained by the Buyer as a result of the cancellation or partial cancellation of any agreement pursuant to clause 14.3
15. Governing Law
15.1 These Terms shall be governed by the laws of the State of Victoria, Australia and each of the parties irrevocably submits to the non-exclusive jurisdiction of the courts of the State of Victoria, Australia in respect of any dispute related to these terms.
16. Exclusion of Convention
16.1 The United Nations Convention on Contracts for the International Sale of Goods (adopted in Vienna) shall be excluded from these Terms.
17.1 The provisions of the Terms may only be amended, modified or waived by instrument or instruments in writing signed by the Seller.
18.1 Any provision of these Terms which is prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction be ineffective only to the extent of the prohibition of unenforceability, and such a provision shall be severed from these terms without invalidating its remaining provisions or affecting the validity of enforceability of these provisions in any other jurisdiction.
19.1 Except in relation to any Non-Excludable Obligation, the Buyer agrees to indemnify, hold harmless and release the Seller against any and all claims, liabilities, injury, loss or damage suffered or incurred, including to any third party, arising from or connected in any way to the Buyer's breach or non-observance of these Terms, or any negligence, fraud, or wilful misconduct of the Buyer in connection with the Goods.
20. Confidential Information
20.1 Where the Buyer has access to any confidential Seller information, including pricing ("Confidential Information"), the Buyer must keep the Confidential Information confidential and not (except to the extent required by law) disclose it to any person without the prior written consent of the Seller.
20.2 The Seller must not, without prior written approval:
20.2.1 issue or provide any information, publication, document or article for publication concerning the Goods in any media;
20.2.2 take photographs or run tests on the Seller's Goods except for the purposes of examining the Goods.
21.1 The Seller can assign, create any interest in or otherwise deal with the Goods or all or any of the Seller's rights under these Terms, including to subcontract its obligations under these Terms, at any time as the Seller sees fit (acting reasonably). Upon receipt of notice of such assignment, the Buyer can exercise against the assignee the same rights the Buyer has against the Seller under these Terms.
21.2 The Buyer must not assign, create any interest in or otherwise deal with the Goods or all or any of the Buyer's rights under these Terms without the prior written consent of the Seller, which consent must not be unreasonably withheld.
22. No Relationship
22.1 Nothing in these Terms constitutes a joint venture, agency, partnership or other fiduciary relationship between the Seller and the Buyer.
23. No Construction
23.1 No rule of construction applies to the Seller's disadvantage solely on the basis that the Seller is responsible for the preparation of, or seek to rely on, these Terms or any part of them.
24. Dispute Resolution
24.1 If any dispute arises between the Seller and the Buyer in connection with these Terms or the supply of Goods, the party claiming that a dispute has arisen must give the other party a notice containing particulars of the dispute ("Dispute Notice") within 10 business days of becoming aware of such issue.
24.2 If the Buyer delivers a Dispute Notice which relates to one or several of the elements of a Tax Invoice issued under Clause 5, the Buyer must pay any undisputed amount in accordance with these Terms and the Tax Invoice.
24.3 The parties must use reasonable endeavours and act in good faith to resolve the dispute within 10 business days of receipt of a Dispute Notice. If the parties are unable to resolve the dispute, either party may refer the dispute to an expert for determination.
24.4 The expert will be a person with appropriate qualifications and experience relevant to determining the dispute and agreed by both parties in writing. If the Parties cannot agree on an expert within 5 business days, either party may request that an expert be nominated by the Australian Commercial Disputes Centre (ACDC) in accordance with the ACDC Rules for Expert Determination. The expert nominated must not act, or their firm must not act, generally for any party.
24.5 If an expert is appointed under Clause 24.3 and 24.4:
24.5.1 each party must pay its own costs of complying with this Clause 24;
24.5.2 the costs of the expert and any other costs of complying with this Clause 24 must be shared equally by the Parties, unless otherwise determined by the expert; and
24.5.3 each party must continue to perform their obligations under these Terms while the dispute is being resolved.
24.6 The expert will act as an expert and not as a mediator or an arbitrator. The expert's determination will be final and binding on the parties. The expert must also be instructed to finish its determination no later than 20 business days after its appointment (or another period agreed by the parties).
24.7 The parties must promptly supply the Independent Expert with any information, assistance and cooperation requested in writing by the Independent Expert in connection with its determination. All correspondence between the Independent Expert and a party must be copied to the other parties.
24.8 A party may not commence court proceedings in respect of a dispute unless it has complied with this clause 24 and until the procedures in this clause 24 have been followed in full, except where:
24.8.1 the party seeks injunctive relief in relation to a dispute from an appropriate court where failure to obtain relief would cause irreparable damage to the party concerned; or
24.8.2 following those procedures would mean that a limitation period for a cause of action relevant to the issues in dispute will expire.
24.9 If a party breaches clauses 24.1 to 24.8 (inclusive), the Seller or the Buyer (as the case may be) does not have to comply with those clauses.