The standard commercial terms on which Pacific Industrial Mineral Enterprises quotes, sells and ships industrial minerals.
In these terms:
References to legislation are to the law in force in Australia and the Contract is to be read in the English language.
Quotations are based on the Specification, volume, destination and Incoterm nominated in the request for quotation. Unless stated otherwise, a written quotation remains open for acceptance for 14 days from the date of issue, subject to the availability of the Goods and prevailing freight rates.
An order is confirmed when PIME issues a written order acknowledgement or pro-forma invoice and the Buyer either countersigns it or remits the payment specified in it. At that point a binding Contract on these terms comes into existence.
We supply Goods to the Specification agreed with the Buyer at the time of order. Where we have provided a physical or digital pre-shipment sample, the Goods will conform to that sample as to essential character, allowing for the natural variation inherent to mined minerals.
Minor deviations within the tolerances stated in the Specification or in an independent certificate of analysis are acceptable and do not constitute a defect. Photographs, marketing material and general descriptions are indicative only.
Prices are quoted in the currency stated on the quotation (typically USD or AUD) and exclude Goods and Services Tax (GST), customs duty, import VAT and any other tax or levy payable in the country of destination, unless the quotation expressly says otherwise. The applicable Incoterm determines which party bears which cost.
Unless otherwise agreed in writing, the standard payment terms are:
For established accounts, we may offer alternative terms such as a confirmed irrevocable letter of credit (L/C) at sight, or agreed open-account terms, subject to credit review. Time for payment is of the essence. Overdue amounts accrue interest at the Reserve Bank of Australia cash-rate target plus 4% per annum, calculated daily, and we may suspend further deliveries while any amount is overdue.
The Goods are supplied on the Incoterm stated on the quotation, most commonly FOB (Free On Board) or CIF (Cost, Insurance and Freight), at the Indian port of loading nominated on the shipping documents.
Risk in the Goods passes to the Buyer in accordance with the applicable Incoterm — for FOB and CIF, when the Goods are loaded on board the nominated vessel at the port of loading.
Title in the Goods does not pass to the Buyer until PIME has received full payment of the invoice price (and any other amount owing in respect of the Contract) in cleared funds. Until title passes, the Buyer holds the Goods as bailee, must keep them clearly identifiable as PIME's property and must insure them for their full invoice value.
Lead times quoted are estimates based on current producer schedules, vessel availability and port conditions at the time of quotation. Typical lead times from order confirmation to vessel sailing are four to eight weeks, with ocean transit to Australian east-coast ports of a further three to five weeks. We will keep the Buyer informed of material schedule changes.
Unless the Contract expressly makes time of the essence, PIME is not liable for any delay in delivery, and the Buyer is not entitled to reject the Goods or claim damages solely on account of delay. Partial shipment is permitted unless the Contract states otherwise.
We strongly encourage independent pre-shipment inspection by a reputable third-party agency (for example, SGS, Bureau Veritas or Intertek) at the Buyer's option and cost. A pre-shipment certificate of analysis will accompany each shipment.
The Buyer must inspect the Goods promptly on arrival at the destination port. Any claim relating to visible damage, shortage, wrong product or non-conformity with the Specification must be notified to PIME in writing, with supporting photographs and (where appropriate) an independent survey report, within:
Where a claim is validly made and substantiated, PIME may (at its option) replace the affected Goods in the next shipment, provide a credit against the invoice, or refund the proportionate invoice value of the affected Goods. Claims made after the above time windows are out of time and waived, save to the extent a mandatory consumer or commercial law prevents such a waiver.
PIME warrants that at the time of loading on board the nominated vessel the Goods will (a) conform in all material respects to the Specification, (b) be free from any third-party lien or encumbrance, and (c) have been packed in a manner reasonably suitable for ocean transit. No other warranty, condition or representation, express or implied, is given by PIME, except to the extent that implying one cannot lawfully be excluded.
If the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) applies and cannot be contracted out of, nothing in these terms excludes, restricts or modifies any consumer guarantee, right or remedy that it confers. To the maximum extent permitted by law, PIME's liability for a breach of a non-excludable consumer guarantee is limited, at PIME's option, to replacement of the Goods, supply of equivalent Goods, repayment of the price, or payment of the reasonable cost of obtaining equivalent Goods.
To the maximum extent permitted by law and subject to section 8:
Neither party is liable for failure to perform any obligation under the Contract (other than an obligation to pay money) to the extent that the failure is caused by an event beyond that party's reasonable control, including (without limitation) acts of God, fire, flood, extreme weather, earthquake, epidemic or pandemic, war, civil unrest, terrorism, strike or industrial action, port congestion, vessel casualty, government action or embargo, export or import restrictions, currency controls, power or telecommunications failure, or interruption to the supply of raw materials from mining sources.
The affected party must notify the other promptly, use reasonable efforts to mitigate and resume performance as soon as practicable. If the event continues for more than 90 consecutive days, either party may terminate the affected Contract by written notice, without further liability other than in respect of Goods already shipped.
The Buyer warrants that it will comply with all applicable laws, including customs, import, tax, biosecurity, work-health-and-safety, environmental and export-control laws of its country. The Buyer is responsible for obtaining any import licence, permit, approval or registration required to import and use the Goods in the country of destination.
Neither party will engage in any dealing under the Contract that would breach Australian sanctions administered by the Department of Foreign Affairs and Trade, UN Security Council sanctions, or applicable sanctions of the country of destination. The Buyer must not supply the Goods, directly or indirectly, to any person or for any end use that is prohibited by such sanctions or by applicable anti-money-laundering, anti-bribery or counter-terrorism-financing laws.
The Buyer will provide such end-use, end-user and beneficial-ownership information as PIME may reasonably require to meet its own compliance obligations.
All intellectual property in our quotations, technical data sheets, certificates, photographs, process descriptions and website content remains with PIME or our licensors. The Buyer may use this material only for the purpose of evaluating and performing the Contract.
Each party will keep confidential the pricing, commercial terms, technical information and business arrangements of the other disclosed in connection with the Contract, except to the extent disclosure is required by law, by a regulator, or to professional advisers bound by confidentiality.
Once an order is confirmed and raw material has been allocated or produced to the Buyer's Specification, the Contract cannot be cancelled except with PIME's written agreement. Where cancellation is agreed, the Buyer is responsible for PIME's actual and reasonable costs incurred up to the date of cancellation, including any non-recoverable material, production, handling, freight and bank charges.
Either party may terminate the Contract immediately by written notice if the other party commits a material breach and fails to remedy it within 14 days of written notice, becomes insolvent, enters external administration, or ceases to carry on business. Termination does not affect any right or remedy that has accrued prior to termination.
The Contract is governed by the law of New South Wales, Australia. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.
The parties will attempt in good faith to resolve any dispute arising out of or in connection with the Contract by senior-level discussion within 30 days of written notice of the dispute. If the dispute is not resolved in that period, either party may commence proceedings in the courts of New South Wales, Australia, to whose non-exclusive jurisdiction the parties submit. Alternatively, the parties may in writing agree to refer the dispute to mediation or to arbitration under the rules of the Australian Centre for International Commercial Arbitration (ACICA), seat Sydney, in the English language.
Nothing in this section prevents PIME from commencing proceedings for a debt or injunctive relief in any court of competent jurisdiction.
For questions about these terms, or to request a signed bespoke sales contract for a specific shipment, contact us using the details below.
Pacific Industrial Mineral Enterprises Pty Ltd
ABN 17 697 333 378
136 Arthur Allen Drive, Bardia, NSW 2565, Australia
Email: info@pime.com.au
Phone: +61 2 4613 5888