TERMS & CONDITIONS

FFR’s Quotation and these Terms comprise the terms on which FFR will supply products and services to a Customer. Together they contain the entire Contract between FFR and the Customer with respect to (and supersede all earlier communications between FFR and the Customer in relation to) the sale and purchase of the Products referred to in the Quotation.

Definitions

1. 1. In these Terms, unless the context otherwise requires:
      1. “Contract” means any contract for the sale or supply of Products entered into between FFR and the Customer.
      2. “Customer” means the person to whom any quotation is given, any person who offers to contract with FFR on these terms and conditions and any person who purchases Products from FFR.
      3. FFR” means Field Furnace Refractories Pty Ltd and its agents, servants and employees.
      4. “Event of Default” means any of the events specified in clause 7 (e) (1) to (vi) inclusive.
      5. “Order” means an order submitted by the Customer to FFR.
      6. “Products” means all products and services which FFR agrees to supply to the Customer under any contract, arrangement or understanding between FFR and the Customer.
      7. “Quotation” includes any quotation, offer or proposal issued or made by FFR.
      8. “Terms” means these terms and conditions.

Interpretation

• 1. In these Terms and in any Order or Quotation, unless the context otherwise requires:
     1. Words importing the singular number shall include the plural and vice versa and words importing a person shall include a corporation and vice versa and words of each gender and the neuter gender shall include each other gender;
     2. Any term to be performed on the part of two or more parties shall be deemed to bind such parties and each of them jointly and severally;
     3. Time is of the essence in relation to the performance of all acts and obligations on the part of the Customer;
     4. Where an act is required to be performed on a Saturday, Sunday or Public Holiday the time for performance of such act shall be extended to the next business day thereafter, except in the case of payment by the Customer to FFR of any sum, in which case the time for performance shall be reduced to the last business day preceding such Saturday, Sunday or Public Holiday as the case may be;
     5. The obligations of the Customer shall bind its legal personal representatives and/or its permitted assigns.

Contract terms

1. 1. The Customer will be deemed to have accepted the terms and conditions of the Contract by submitting an Order. The Customer agrees that the terms of the Contract shall in all circumstances prevail over the Customer’s terms and conditions of purchase (if any).
   2. In case of conflict between a Quotation and these Terms, the terms of the Quotation will prevail over these Terms.
   3. No variation of the terms of the Contract will be valid unless agreed in writing and signed by duly authorised representatives of both FFR and the Customer.
   4. FFR reserves the right to change these Terms at any time without notice. The amended Terms will take effect from the day on which a copy of them is delivered to the Customer and the Customer will be taken to have agreed to the amended Terms if the Customer places an Order after such amendments have been made.

Quotations and Orders

1. 1. The issue of a Quotation does not constitute an offer by FFR to sell the Products referred to in it. Any Order placed by the Customer will be an offer by the Customer to purchase the requested Products at the prices shown in the relevant Quotation at the time the Order is submitted and in accordance with these Terms.
   2. FFR reserves the right at any time after receipt of an Order to accept or decline that Order without giving any reason.

Prices

1. 1. Unless otherwise agreed in writing, the price charged for the Products shall be the price ruling as determined by FFR at the date of delivery. Any price indications are subject to alteration in accordance with the price ruling at that date.

Taxes

1. 1. Unless otherwise agreed in writing, the price charged for Products is exclusive of goods and services tax and all other taxes, imposts, duties and other government charges (including any tax introduced after acceptance of the Order and before title in and to the Products passes) which shall be added to the price and paid by the Customer at the same time as payment of the price.

Payment and default

1. 1. Unless otherwise specified in the Quotation, all sums payable for Products must be paid by cash, bank cheque or electronic funds transfer within 30 days from invoice date unless otherwise agreed in writing.
   2. The Customer will be responsible for any sum charged by FFR’ bankers for any cheque which is not honoured on presentation.
   3. FFR may charge interest on overdue amounts at the Reserve Bank of Australia Cash Rate Operating Target plus 4%. Interest will be calculated at daily rests on the balance outstanding from time to time and compounded monthly.
   4. The customer will indemnify FFR for all legal costs and expenses (on a full indemnity basis) incurred by FFR in proceedings against the Customer for the recovery of any debt of the Customer to FFR.
   5. If any of the events set out in (i) to (vi) below occur, FFR may at its option withhold further deliveries or cancel the Contract without notice to the Customer and without prejudice to any other action or remedy which FFR has or might otherwise have had and all moneys owing and outstanding to FFR on any account whatsoever and irrespective of whether the due date on any statement of account has occurred or passed shall become immediately due and payable:
      1. The Customer defaults in making any payment or is unable or states that it is unable to pay its debts as and when they fall due;
      2. The Customer, being an individual, commits an act of bankruptcy or has a controller or trustee appointed in respect of the Customer’s estate or any part of the Customer’s property or assets;
      3. The Customer, being a company, passes a resolution for its winding up or enters into liquidation or has an application for winding up filed against it;
      4. A receiver, receiver and manager, controller or voluntary administrator is appointed over any part of the property or assets of the Customer;
      5. The Customer enters into a scheme of arrangement with its creditors or has execution levied against any of its assets;
      6. The Customer experiences any analogous event having substantially similar effect to any of the events specified above.
   6. Notwithstanding anything in these Terms, FFR may at all times in its sole and unfettered discretion and without being under any duty or obligation to assign reasons therefore review, alter or terminate the Customer’s credit limit or payment terms without notice. Without limiting the generality of the foregoing, the decision of FFR shall be final and FFR shall incur no liability or responsibility for any loss, howsoever arising, incurred by the Customer due to the operation of this condition.

Delivery and acceptance

1. 1. FFR will endeavour to deliver the Products to the Customer on the date agreed for delivery, but FFR shall not be liable for any failure to deliver or delay in delivery for any reason. FFR will not be liable for any loss or damage resulting from late delivery and late delivery will not entitle the Customer to cancel its Order. FFR will also not be liable for any loss or damage arising from the Customer’s lost, damaged or stolen Products following delivery.
   2. Products are not returnable to FFR. The Customer will examine the Products for defects and will notify FFR of any defects in writing within 7 days of delivery. If the Customer does not notify FFR within 7 days of delivery, the Customer shall be deemed to have accepted the Products. FFR will not be liable for any claim made after 7 days from the date of delivery.

Force majeure

1. 1. Deliveries may be totally or partially suspended by FFR during any period in which FFR may be prevented or hindered from manufacture, delivery or supply through any circumstances outside FFR’s reasonable control, including but not limited to flood, earthquake, strike, lockout or other labour difficulty, government prohibition or regulation, inability to obtain any necessary materials, equipment, facilities or services, power or water shortage, accidents or breakdowns of plant, machinery, software, hardware or communication network, provided that, if any such condition shall continue for more than one month, then the Customer shall have the right to terminate the Contract immediately, by written notice to FFR. FFR shall not incur any liability to the Customer in respect of such suspension.
   2. If a “Hardship Event” occurs, FFR may notify the Customer of such occurrence and request a meeting with the Customer to discuss changes to the terms of the Contract or adjustments to the price charged by FFR for the Products in light of such Hardship Event (a “Hardship Notice”).
   3. If the Customer and FFR fail to agree changes to the terms of the Contract or adjustments to the price charged by FFR for the Products within 30 days of the date of delivery of the Hardship Notice to the Customer, then FFR may suspend supply of the Products or terminate the Contract by notice in writing to the Customer.
   4. In this clause “Hardship Event” means any event beyond FFR’ control which adversely affects FFR’s ability to supply the Products or results in increased cost to FFR of supplying the Products, including (but not limited to) any increase in the price payable by FFR for the Products, packaging, insurance or transport, any additional cost, any action of a third party (including a manufacturer, supplier, shipper or agent), any change in Local Central or Regional law in country of manufacture, regulation or policy, any imposition of or increase in government tariffs, charges, taxes, excises or duties and any change in exchange rates.

Title to goods

1. 1. Title in and to the Products shall not pass to the Customer until payment in full for all Products is made.
   2. The Customer acknowledges that, until title in and to the Products passes to the Customer in accordance with this clause, the Customer holds the Products as bailee of FFR and that a fiduciary relationship exists between the Customer and FFR.
   3. Until title in and to the Products passes to the Customer in accordance with this clause the Customer shall store the Products separately and in such a manner that they are clearly identified as the property of FFR. FFR shall be entitled at any time until title in and to the Products passes to the Customer to demand the return of the Products and shall be entitled without notice to the Customer and without liability to the Customer to enter any premises occupied by the Customer in order to search for and remove the Products.
   4. The Customer acknowledges that, if it sells the Products before title in and to the Products has passed to the Customer in accordance with this clause, it sells the Products as a fiduciary agent of FFR, provided that such sales shall not give rise to any obligations on the part of FFR. The Customer shall hold the proceeds of sale on trust for FFR in a separate account.
   5. If title in and to the Products has not passed to the Customer in accordance with this clause, the Customer’s implied right to sell the Products shall immediately terminate upon the happening of any Event of Default.
   6. FFR and the Customer agree that if the Customer should make a new object from the Products, mix the Products with other objects, uses the Products to manufacture another object or if the Products in any way whatsoever becomes a constituent of other objects, FFR will be given the ownership of the new objects as surety for the full payment of what the Customer owes FFR. To this end FFR and the Customer agree that the ownership of the objects in question, whether finished or not, is to be transferred to FFR and that this transfer of ownership will be considered to have taken place through and at the moment of the single operation or event by which the Products are converted into new objects or are mixed with or become a constituent of other objects. Until the moment of full payment of what the Customer owes FFR, the Customer shall keep the objects in question for FFR in its capacity of fiduciary owner and, if required, shall store the objects in such a way that they can be recognised as such. Nevertheless, the Customer will be entitled to sell those objects to a third party within the normal carrying on of the Customer’s business and to deliver them on the condition that – if FFR so requires – the Customer, as long as it has not fully discharged its debt to FFR, shall hand over to FFR the claims it has against the buyer emanating from the transaction.

Risk in goods

1. 1. Unless otherwise agreed in writing, all risk in and to the Products purchased shall pass to the Customer upon delivery to the Customer or its agent or to a carrier commissioned by the Customer.
   2. Without in any way limiting the operation of the foregoing, upon delivery of the Products to the Customer or its agent or to a carrier commissioned by the Customer, the Customer covenants and warrants to FFR that, in the storage and handling of the Products, the Customer and its agents and carriers shall comply with all relevant occupational health and safety and environmental laws and regulations and all necessary and/or relevant permits or licences pertaining to the storing and handling of the Products, and the Customer shall ensure that the Customer and its agents and carriers are familiar with and adhere to all the necessary and appropriate precautions and safety measures relating to the storing and handling of the Products.

Representations and warranties

1. 1. FFR makes no representation and excludes all warranties as to fitness or suitability of the Products for any particular purpose. The Customer is solely responsible for checking the Products for compliance with all applicable standards and regulator requirements before use or application.
   2. The Customer warrants that it relies solely on its own knowledge and expertise in selecting Products for any purpose and that it has not relied on:
      1. Any representation made by FFR which is not stated expressly in the Contract or upon any description, illustration or specification contained in any document, including any catalogues or publicity material produced by FFR; or
      2. Any service involving skill or judgement, or on any advice, recommendation, information or assistance provided by FFR in relation to the Products or their use or application.

Limitation of liability

1. 1. Except as expressly provided to the contrary in the Contract, FFR shall not be under any liability to the Customer in respect of any loss or damage (including consequential loss or damage including, but not limited to, additional costs or loss of income, profit, goodwill or reputation) however caused, which may be suffered or incurred or which may arise directly or indirectly in respect of the supply of goods or services pursuant to the Contract or the failure or omission on the part of FFR to comply with its obligations under the Contract.
   2. Except as expressly provided to the contrary in the Contract, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of the Contract or to the Contract generally, are excluded. Where any Act of Parliament implies in the Contract any term, and that Act avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such term, such term shall be deemed to be included in the Contract. However, the liability of FFR for any breach of such term shall (if permitted by that Act) be limited, at the option of FFR, to any one or more of the following:
      1. If the breach relates to goods:
         • The replacement of the goods or the supply of equivalent goods;
         • The repair of such goods;
         • The payment of the cost of replacing the goods or of acquiring equivalent goods; or
         • The payment of the cost of having the goods repaired; and
      2. If the breach relates to services:
         • The supplying of the services again; or
         • The payment of the cost of having the services supplied again; or, in either case, refund of the sums paid by the Customer to FFR under the Contract.

Employees and contractors

1. 1. For 6 months after expiry or termination of the Contract, neither party shall solicit for employment, either directly or indirectly, any person who is employed or contracted by the other party.
   2. A party shall promptly advise the other party if a person who is employed or contracted by the other party and whose title includes the word ‘manager’ or ‘officer’ seeks to be employed or contracted by the first-mentioned party within 3 months after expiry or termination of the Contract.

Severance

1. 1. If any provision of these terms and conditions or its application to any person or circumstance is or becomes invalid, illegal or unenforceable the provision shall so far as possible be read down to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down the provision or part of it shall be deemed to be void and severable and the remaining provisions of these terms and conditions shall not in any way be affected or impaired.

Dispute resolution

• 1. Any dispute arising in connection with the Contract which cannot be settled by negotiation between the parties’ representatives shall be submitted to arbitration under the provisions of the Commercial Arbitration Act, 1984 (New South Wales) by the nominee of the President for the time being of the Law Society of New South Wales. Either party shall be entitled to refer any dispute to the President of the Law Society for determination pursuant to this provision. During such arbitration, both parties may be legally represented.
  2. Before referring a matter to arbitration pursuant to clause 16.1, the parties shall:
     1. Formally refer the dispute to their respective representatives for consideration;
     2. If the parties’ respective representatives are unable to resolve the dispute after five (5) days (or such other period as is agreed between the parties) from the date of referral, refer the dispute to the respective chief executive officers of each party; and
     3. In good faith explore the prospect of mediation. 16.3 Nothing in this clause shall prevent a party from seeking urgent equitable relief before an appropriate court. 17. Governing law and jurisdiction 17.1 The Contract is governed by the law of the State of New South Wales, Australia, and FFR and the Customer submit to the non-exclusive jurisdiction of the courts of the State of New South Wales and any court that may hear appeals from any of those courts and waives any right it might have to claim that those courts are an inconvenient forum.