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ELLTON LONGWALL 
CONDITIONS OF SALE 2004

Save to the extent that our tender expressly varies them in writing, tenders are submitted and orders accepted only upon and subject to the following Conditions of Sale. No other variation or qualification will be valid.

2. ACCEPTANCE.

Unless previously withdrawn, our tender is open for acceptance within thirty days of the date hereof. The acceptance of our tender must be accompanied by sufficient information to enable us to proceed with the order or we shall be at liberty to amend the tender price to reflect any increase in costs resulting from the late supply of necessary information.

3. PRICE & DELIVERY.

Unless otherwise specified in the Tender3.1 All prices are quoted and payable in Australian Dollars and are exclusive of any value added or similar tax payable therein3.2 The price includes for delivery Ex Works or as otherwise specified therein.3.3 Delivery terms are to be interpreted in accordance with ICC "INCOTERMS" current at the date of tender.

4. LIMITS OF CONTRACT.

Our tender includes only for the supply of goods and/or services specified in our tender.

5. DRAWINGS.

All descriptive, specifications, drawings, and particulars of weights and dimensions submitted with our tender or otherwise are approximate only and are intended merely to present a general idea of the goods described therein. None of these shall form part of the contract.

6. TESTS.

Our goods are carefully inspected and, where practicable, submitted to our standard tests at our Works before despatch. If special tests are required or the tests are to be carried out in the presence of you or your representative, unless otherwise agreed in writing, these must be made at our Works and will be charged for. In the event of any delay on your part in attending such tests after seven days’ notice that we are ready to contact them, the tests will proceed in your absence and shall be deemed to have been made in your presence.

7. PERFORMANCE.

7.1 Any performance figures given by us are based upon our experience and are such as we expect to obtain on test but we accept no liability for failure to obtain any figures given by us for performance unless we specifically guarantee figures in writing with an agreed sum as liquidated damages for failure to attain performance criteria. In the event of any part of the goods failing to fulfil any performance guarantee, we shall be entitled to a reasonable period to comply with the same.7.2 You assume responsibility for the specified capacity and performance of the goods being sufficient and suitable for your purpose.

8. TIME FOR DELIVERY

8.1 Any times quoted for despatch are to date from receipt by us of the acceptance of our Tender and of all necessary information and drawings to enable us to proceed. 8.2 Whilst we will use all reasonable endeavours to comply with any delivery dates, we accept no liability whatsoever for any failure to attain such delivery dates.

9. TERMS OF PAYMENT.

9.1 Unless otherwise agreed, Payment is due in full by the end of the month following the month in which the invoice is issued.. Where only part of the Order has been despatched, payment will be due for that part. Time is of the essence.9.2 In the case of sales FOB Sydney, unless otherwise agreed, the Buyer shall upon request by the Seller nominate a vessel willing to receive the Goods. Failing such a nomination within thirty days (or such longer period as may be agreed in writing by the Seller) the Seller shall be entitled to require immediate payment for the Goods and to place the Goods in store at the risk and expense of the Buyer or to treat the contract as discharged and dispose of the Goods.9.3 If the tender stipulates that payment is to be made by letter of credit this must be irrevocable and be drawn on or confirmed by an Australian bank. 9.4 If for any reason you cannot take delivery, payment of the contract value of the goods shall be due upon presentation of invoices and notification from us that the goods are ready for despatch after having been tested as may be required by Clause 6.

10. STORAGE.

If we do not receive forwarding instructions sufficient to enable us to despatch within seven days, or in the case of goods for export fourteen days, after notification that the goods have been tested under Condition 5 or that they are ready for despatch, you shall take delivery or arrange for storage. If delivery is not taken or if you do not promptly arrange for storage, we shall be entitled to store the goods at your risk and expense.

11. DAMAGE IN TRANSIT.

We accept no responsibility for loss or damage to the goods or the packing thereof, beyond the point to which we contract to deliver the same. Up to delivery we shall only be liable for damage or loss or non-delivery of the goods or any part thereof if (a) in the case of damage, you expressly notify us and our carriers (if known to you) in writing of the existence of damage within three days and notify us in writing of detailed particulars of the same within seven days after the termination of the transit, and (b) in the case of loss or non-delivery you expressly notify us and our carriers (if known to you) in writing of the loss or non-delivery within fourteen days and supply particulars thereof within twenty-eight days after the date on which the transit of the goods was terminated or would, in the normal course of events, have terminated. Subject to compliance with such requirement, we will repair or replace at our cost the goods damaged, lost or undelivered, as the case may be.When Bills of Lading are taken out by us, we will, on your instructions and at your expense, insure against loss or other risk, and will, on receipt of your indemnity, take all reasonable steps to recover from the underwriters any loss or damage for which they may be liable.

12. TRANSFER OF OWNERSHIP.

12.1 The risk in the Goods shall pass to the Buyer in accordance with INCOTERMS.
12.2 Notwithstanding sub-clause 13.1, title to the Goods l remains vested in the Seller and the Buyer shall keep the Goods as bailee and trustee for the Seller (returning the same to the Seller upon request) until the price thereof has been paid in full together with all other sums due from the Buyer in accordance with the contract and until payment in full has been received by the Seller for any other Goods supplied by the Seller. 12.3 Pending payment for Goods as aforesaid the Buyer shall not mix or incorporate the Goods with any other Goods and shall keep the Goods suitably marked or otherwise plainly identified that they are the property of the Seller.12.4 Pending payment for Goods as aforesaid the Buyer shall store them separately so that they can be identified as the property of the Seller. The Seller shall be entitled to direct the Buyer not to resell the same or remove them from where they are located without consent. Any Goods in the Buyer’s possession shall be presumed not to have been paid for unless the Buyer can prove otherwise and the Seller shall have the right to appropriate any payment made by the Buyer to any invoice or invoices (whether or not due at the time of payment) in the Seller’s absolute discretion.12.5 If prior to making payment for the Goods the Buyer shall sell or otherwise dispose of the Goods or make any insurance claim in respect thereof, the Buyer shall not give any warranties or incur any liabilities on behalf of the Seller and the proceeds of any such sale or other disposition (or claim hereto) or any such insurance proceeds (or claim thereto) shall belong to the Seller and be held by the Buyer as trust funds to the extent of all sums due to the Seller in respect of such Goods, and the Buyer shall pay such proceeds into a separate account.12.6 Any Goods repossessed by the Seller may be resold on such terms as he may determine and the Buyer shall remain liable to the Seller for the difference between the net proceeds of such resale and all outstanding sums due to the Seller in respect of such Goods and for all costs and expenses incurred by the Seller in repossessing, storing and reselling the same.12.7 Nothing in this clause shall give the Buyer any right to return Goods sold by the Seller and the Seller may sue the Buyer for the price when due (without prejudice to its other rights) notwithstanding that property therein may not have passed to the Buyer.12.8 The Buyer’s rights to use the Goods or to sell them prior to full payment may be terminated forthwith by written notice given by the Seller to the Buyer and shall automatically terminate with or without such notice if a receiver is appointed over any of the assets or the undertaking of the Buyer or a winding up order is made against the Buyer or the Buyer goes into voluntary liquidation (otherwise than for the purpose of solvent reconstruction or amalgamation) or calls a meeting of or makes any arrangement or composition with its creditors generally or commits any acts of bankruptcy or allows execution or distress to be levied against its goods and in the event of a Receiver or Liquidator of the Buyer being appointed, such Receiver or Liquidator shall pay into a separate bank account any sums received from third parties in respect of sales to them of Goods or Products by the Buyer up to the amount of any indebtedness of the Buyer to the Seller for the sole benefit of the Seller.

13. DEFECTS GUARANTEE.

All goods are guaranteed against defects from faulty design, materials, or workmanship for twelve months from the date of despatch. We will make good by repair or replacement of the defective part any such defect, provided that such defective parts are promptly returned to our Works or Store, all charges prepaid. The repaired or new parts will be delivered free in Australia Defective parts thus replaced remain our property. Our liability hereunder is in lieu of any condition or warranty implied by law or otherwise as to the suitability of the goods for any particular purpose, use or application.

14. LIMITATIONS OF LIABILITY

We shall not be liable, whether in contract or by way of indemnity or tort (including but not limited to negligence) for loss of contracts, loss of profits or use or any other economic loss resulting. In respect of all other losses, our liability shall be limited to $1,000, 000 or the contract price, whichever is greater.

15. PATENTS.

We will indemnify you against any claim of infringement of Letters Patent or Registered Design (valid at date of the contract) by the use or sale of any article or material supplied by us to you and against all costs and damages which you may incur in any action for such infringement or for which you may become liable in any such action. Provided always that this indemnity shall not apply to any infringement which is due to our having followed a design or instruction furnished or given by you or to the use of such article or material in a manner or for a purpose or in a foreign country not specified or disclosed to us. And provided also that this indemnity is conditional on your giving to us the earliest possible notice in writing of any claim being made or action threatened or brought against you and on your permitting us at our own expense to conduct any litigation that may ensure and all negotiations for a settlement of the claim. Provided also that this indemnity is conditional on your not making any admission which might be prejudicial to such negotiations or litigation and affording us all available assistance for such purposes, any expenses incurred by you in so doing being repaid by us. You on your part warrant that any design or instruction furnished or given by you shall not be such as will cause us to infringe any Letters Patent, Registered Design or Trade Mark in the execution of your order.

16. ARBITRATION.

If at any time any dispute or difference arises out of or in connection with the contract, either of us may give the other notice in writing of the existence of such dispute, or difference, and the same shall be referred to the arbitration of a person to be mutually agreed upon, or failing agreement within fourteen days of the receipt of such notice, of some person appointed by the President for the time being of the Chartered Institution of Arbitration. The submission shall be deemed to be a submission to arbitration within the meaning of the Arbitration Acts 1950-1996 or any statutory modification or re-enactment thereof.

17. DETERMINATION OF CONTRACT.

If you shall make any arrangement or composition with creditors, or commit any act of bankruptcy, or if any petition or receiving order in bankruptcy shall be presented or made against you, or if, being a limited company, any resolution or petition to wind up the company’s business (other than for the purpose of amalgamation or reconstruction) shall be passed or presented, or if a receiver or manager shall be appointed of your company’s undertaking, property or assets, we shall have the right forthwith to determine the contract, and upon written notice of such determination being posted to your last known address, the contract shall be deemed to have been determined.

18. LEGAL CONSTRUCTION.

The contract shall in all respects be construed and operate in conformity with Australian Law and is subject to the exclusive jurisdiction of the English Courts.

Ellton Longwall

Conditions Of Purchase 2006

1. Definitions

2. Purchase Order

2.1. The Purchase Order must be accepted promptly by the Seller in its entirety and may be withdrawn at any time before the acceptance is received by the Buyer.
 
2.2. The Buyer will not be liable for any Goods supplied or work performed beyond the scope of supply of a Purchase Order or in the absence of a Purchase Order.
 
2.3. The Seller must put the Purchase Order Number, Supplier’s Code and the Buyer’s Part Number on all invoices, delivery notes, packages and containers. Invoices shall be marked for the attention of the Account Department. The Seller shall comply with any other requirements for marking the goods stated on the Purchase Order.
 

3. Quality, Inspection, Testing and Rejection of Goods

3.1 All goods shown on or referred to on the Purchase Order shall be fit for the purpose for which they are to be used and shall be of consistent quality.

3.2 Where Goods are manufactured by the Seller in accordance with the designs of the Buyer, the materials and processes specified by the Buyer shall be strictly adhered to unless otherwise agreed in writing with the Buyer.

3.3 Goods must be accompanied by a Certificate of Conformity or any other certificates stated in the Purchase Order. Such certificate(s) shall be signed by the person appointed by the Seller and should be received by the Buyer not later than the date of delivery of the Goods to be Buyer.

3.4 The Supplier shall maintain quality systems, procedures and documentation as may be acceptable to the Buyer. The Buyer reserves the right to carry out a quality audit at the Supplier’s premises in respect of Goods supplied to the Buyer.

3.5 The Seller must, at its own expense, ensure that all Goods supplied to the Buyer comply with all relevant governmental and local laws, regulations and orders of the country or countries of manufacture, transit, delivery and installation.
 
3.6 The Seller must notify the Buyer of any Goods that are considered to be of a hazardous nature.

3.7 The Buyer and anyone authorised by the Buyer shall have the right to inspect the Goods or any component parts thereof at any time during manufacture and prior to delivery to the Buyer. Whether or not the right of inspection is exercised, the Buyer shall have the right to reject the Goods after delivery if in the opinion of the Buyer they shall not comply in every material way with any of the requirements of the Contract.

3.8 The Seller warrants that the goods are in accordance with the requirements of the Contract. If, after delivery, it is found that they are not so compliant, the Buyer may reject the Goods, whereupon they must be promptly repaired or replaced, at the option of the Buyer. The Buyer also reserves the right to claim any resulting costs, damages or liabilities resulting from the rejection and/or non-compliance with the contract.

3.9 If the Goods are rejected under Clause 3.8 and the Buyer notifies the Seller that the option to have the Goods repaired is being exercised the Seller must effect collection of said Goods within 7 days of such notification. Failure to do so will result in the Buyer returning the Goods and debiting any costs thereby incurred to the Seller’s account or retaining the Goods at the Seller’s risk.

3.10 All materials and treatments used must be as specified on the Buyer’s specification or drawings and the Seller should provide evidence of such at time of delivery of the Goods or on request of the Seller at any time during the period of two years after delivery date.

3.11 The Seller shall be responsible for and bear the cost of obtaining in due time and observing any necessary inspection or code approvals and any necessary licence or permit, whether governmental or otherwise, which shall be required in connection with the performance of the Contract.

3.12 Approval of any drawings or any other documents by the Buyer shall not affect the Buyer’s right of rejection of the Goods or the liability of the Seller under the Contract.

4. Free Issue Material

4.1. Where the Buyer, for the purpose of the Contract, issues material free of charge to the Seller, such material shall be and remain at all times the property of the Buyer. The Seller shall maintain all such material in good order and condition and insure them for the replacement value against any loss, damage or destruction.

4.2. Should the Seller through bad workmanship or negligence render such material scrap, the Buyer shall have immediate recourse to the Seller for the reimbursement of the total value of the free issue material.

5. Jigs and Fixtures

5.1. Jigs and fixtures made by or provided at the request of the Buyer in connection with the manufacture of the Goods shall at all times remain the property of the Buyer. The jigs and fixtures shall be clearly marked as such. The Seller shall maintain them in good order and condition and insure them for the replacement value at its own cost against any loss, damage or destruction.

5.2. The Seller shall not, without the prior written consent of the Buyer, use or cause to permit to be used, the jigs and fixtures or drawings thereof for any purpose other than the performance of the Contract.

5.3. The Seller shall not in any circumstances have any lien (whether general or otherwise) in respect of any jigs and fixtures.

6. Packing & Transport

The Seller shall be responsible for any loss or damage, or any other liability incurred or sustained by the Buyer and/or its customers resulting from any damage which is attributable in whole or in part to defective and/or insufficient packing and/or in transit.
 

7. Delivery

7.1. The buyer shall be entitled to postpone the date of delivery of all or any of the Goods upon giving notice to the Seller.

7.2. The Seller shall give written notice to the Buyer if the delivery of the Goods has been or is likely to be delayed.

7.3. Goods will not be accepted by the Buyer prior to the delivery date specified in the Purchase Order unless the Seller has received written agreement from the Buyer to do so.

7.4. The Seller shall be responsible for delivering the Goods, carriage paid, as specified in the Purchase Order.

8. Force Majeure

The time for delivery shall be extended by a reasonable period if delay is caused by instructions or lack of instructions from the Buyer or by national industrial dispute at the Seller’s premises or by any other cause beyond the reasonable control of the Seller such as Acts of God, but not failure on the part of a sub-contractor or sub-supplier PROVIDED that the Seller shall give prompt notice in writing to the Buyer of (I) the commencement of any such cause for delay or potential delay and of the initial estimate of the length of delay, (ii) regular reports on the effect of the cause on delivery and (iii) the date of resumption of normal working.

9. Liabilities for Delay

The Seller shall indemnify the Buyer against any losses, damages or liabilities incurred as a consequence of any failure to deliver the Goods within the agreed time for delivery.

10. Title and Risk

Title in any goods manufactured for this Contract shall pass to the Buyer immediately the goods are manufactured. Risk in the Goods shall transfer to the Buyer when the Goods have been delivered. For the purpose of this Clause, delivery means in the case of a vehicle delivery, completion of off-loading.

11. Price

The price of the Goods is stated in the Purchase Order. This is a fixed price (including GST) and includes carriage paid and any packing materials used by the Seller.

12. Payment

12.1 Unless otherwise stated in the Purchase Order, payment for the Goods will normally be made by the Buyer 60 days following the end of the month in which the goods (including services, drawings, instruction manuals and other documents specified by the Buyer) and invoice were received provided that delivery was not made prior to the required delivery date of the Purchase Order.

12.2. Payment will be made in the currency specified in the Purchase Order.

13. Defects in Goods after Delivery

13.1. The Seller warrants that the Goods are free from defects for a period of 18 months from the date of delivery or 12 months from the date the Goods are commissioned, whichever is the later. Any defects shall be made good by repair or replacement at the Seller’s expense. The Seller shall also be liable for any damages and/or costs incurred by the Buyer directly arising from the defect in the Goods. Repairs and replacements shall themselves be subject to an 18 month warranty.

13.2. The Seller undertakes that service parts for the Goods or any assembly or part thereof shall continue to be made available to the Buyer for a reasonable time after execution of the Purchase Order.

14. Indemnity

The Seller undertakes to indemnify the Buyer against any liabilities or any third party claims arising from any Default on the part of the Seller in fulfilling the requirements of the Contract.

15. Confidential Information

Any information, whether written or oral, disclosed by the Buyer to the Seller shall be confidential and the Seller shall not disclose it to any person (other than those of its employees to whom disclosure shall be essential for the purposes of performing this Contract and provided the Seller obtains an undertaking of confidentiality from such employees) or use it for any purpose other than the performance of this Contract, without the prior written consent of the Buyer.

16. Copyright

The copyright in all designs, blueprints, sketches, illustrations, drawings, specifications, diagrams or other documents, supplied by or at the request of the Buyer to the Seller in anticipation of or in connection with the Contract, or made or prepared by the Seller at the express or implied request of the Buyer in anticipation of or in connection with the Contract, shall belong absolutely to the Buyer. The Seller shall if the Buyer so requests, execute any documents which may be required in order to vest such copyright absolutely in the Buyer.

17. Cancellation

17.1. If the Seller fails to comply with any terms of conditions of the Contract, thereof and without prejudice to the Buyer’s other rights, the Buyer may cancel the contract in whole or in part, without any cost to the Buyer or liability.

17.2. The Buyer may for any other reason by written notice to the Seller cancel the Contract at any time, in whole or in part. Upon receipt of such notice the Seller shall immediately cease all work in performance of the Contract. The Buyer shall pay the Seller, subject to agreement, for all Goods already completed or whose manufacture is in progress at the time of cancellation and shall pay for all materials and Goods for which an obligation to pay on the part of the Buyer has arisen before such date of cancellation.

18. Insolvency

If the Seller becomes insolvent or (being a Company) makes an arrangement with its creditors or has a receiver or administrator appointed, commences to be wound up or is subject to amalgamation or reconstruction, the Buyer may, without prejudice to any of its rights, terminate the Contract forthwith by notice to the Seller or any other person in whom the Contract may have become vested.

19. Advertisement

The Seller may not refer to the Contract in any form of advertising without the Buyer’s prior written consent.

20. Law

The Contact shall be construed and take effect according to the laws of the Country in which the Buyer is located.

21. Arbitration

All disputes arising out of or in connection with this contract shall be referred to arbitration by one arbitrator in accordance with the Rules of Arbitration of the International Chamber of Commerce.
The arbitration shall be held in the Capital City of the Country in which the Buyer is located and the language of the arbitration shall be English.

22. Notices

Any notice given under the Contract shall be served at or sent to the address of the Buyer or the Seller shown on the Purchase Order or such other address as the Buyer or the Seller shall notify to the other party.
Notices sent by inland first class post shall be deemed to have been received two working days after despatch and by overseas airmail seven working days after despatch.