General Terms and Conditions of Sale of Bluescope Distribution Pty Ltd

These General Terms and Conditions of Sale (“Conditions”) shall apply to and form part of any contract for the supply of goods, products and materials and related services (“Goods”) by BlueScope Distribution Pty Ltd ABN 88 096 380 068 (“BlueScope”) or any Related Corporation of BlueScope to the Purchaser.

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1. Unless otherwise agreed, BlueScope shall deliver Goods to the Purchaser as follows:
   1. BlueScope reserves the right to arrange transport by any means in its absolute discretion;
   2. delivery will be made during Working Hours to the location agreed by the parties (“Delivery Point”);
   3. BlueScope or its transport contractor will deliver the Goods so close (“Drop Spot”) to the Delivery Point as, in the opinion of BlueScope or its transport contractor, it is safe or prudent to do so and delivery occurs and risk in the Goods passes to the Purchaser when BlueScope’s or its transport contractor’s delivery vehicle arrives at the Drop Spot;
   4. BlueScope reserves the right to charge the Purchaser any costs which it incurs as a result of any delay by the Purchaser in unloading the Goods or where unloading of the Goods cannot be effected, including, if applicable, a return delivery fee at the prevailing freight rates;
   5. the unloading of Goods at a Drop Spot is the Purchaser’s responsibility at its own cost and risk but BlueScope or its transport contractor may, without liability to the Purchaser, unload the Goods at the Drop Spot if the Purchaser requests BlueScope to do so or is absent from the Drop Spot at the time BlueScope or its transport contractor wishes to unload and, subject to the rights of Consumers set out in clause 11.2, the Purchaser releases and forever discharges BlueScope and its transport contractor from and against any claim, cause of action or liability arising out of the unloading of Goods at the Drop Spot;
   6. where the Purchaser attends BlueScope’s premises to acquire the Goods, BlueScope may, in its absolute discretion:
      1. deliver the Goods into or onto the Purchaser’s vehicle in which case risk in the Goods passes to the Purchaser and delivery is effected when the Goods are set down in or on the Purchaser’s vehicle; or
      2. deliver the Goods by setting them down along side the Purchaser’s vehicle in which case risk in the Goods passes to the Purchaser and delivery is effected when the Goods are set down along side the Purchaser’s vehicle notwithstanding that BlueScope’s staff may, on request, assist the Purchaser to load the Goods into or onto the Purchaser’s vehicle.
2. Goods ordered for collection will be held for a maximum period of 10 Business Days after the specific collection date. If the Goods are not collected by that time, they may be delivered to (at BlueScope’s option) the Purchaser’s site or store or to a store selected by BlueScope and all costs incurred by BlueScope in relation to the holding and delivery of the Goods shall be charged to and be paid by the Purchaser.
3. The Goods are at the Purchaser’s risk from the time at which they are delivered to the Purchaser or its nominee.
4. Handling Safety – BlueScope product may be sharp and heavy. It is recommended that heavy-duty cut resistant gloves and appropriate manual handling techniques or a lifting plan be used when handling material. Material Safety Data Sheets are available from www.bluescopesteel.com.au.
5. Dates and times quoted for delivery are estimates only. Maximum lengths for products vary by State and Territory and delivery of such will be determined by BlueScope on a case by case basis.
6. BlueScope shall not be obliged to complete any order in one delivery and expressly reserves the right to deliver by instalments. Where BlueScope delivers by instalments each instalment shall be deemed to be sold to the Purchaser under a separate contract. Failure to deliver any one instalment by the time quoted for delivery of that instalment (if any) shall not entitle the Purchaser to repudiate the order.
7. Where BlueScope or its transport contractor enters the Purchaser’s premises or the premises of a third party nominated by the Purchaser as a delivery point, the Purchaser:
   1. releases BlueScope from any claim the Purchaser may at any time have had against BlueScope but for this release in respect of damage occasioned to the Purchaser’s premises or injury to persons arising out of the delivery by BlueScope or its transport contractor of Goods to such premises; and
   2. indemnifies and holds BlueScope harmless from and against any loss, damage or liability suffered or incurred by BlueScope in respect of damage occasioned to the third party’s premises or injury to persons arising out of the delivery by BlueScope or its transport contractor of Goods to the premises of the third party except for and to the extent that such loss, damage or liability suffered or incurred by BlueScope arises out of the negligence or wilful misconduct of BlueScope or its transport contractor.
8. No defect or claim in respect of Goods delivered shall entitle the Purchaser to reject delivery of other Goods, which are not subject to any defect or claim, delivered as part of the order.
9. If BlueScope is prevented either directly or indirectly from performing any of its obligations under these Conditions, including without limitation, making a delivery of the Goods or any part of the Goods by reason of Force Majeure it shall be entitled, at its option, by notice to the Purchaser, either to:
   1. extend the time for delivery of the Goods for a reasonable period; or
   2. subject to refunding the Purchaser for any payment already made to BlueScope in respect of those particular Goods (if any), terminate this contract, and the Purchaser shall not have any claim against BlueScope for damages or any other remedy for breach of contract. “Force Majeure” shall mean an act of God, war, fire, strike, lockout, trade or industrial disputes, government interference, lack of production capacity or raw materials, transport delays, accidents, breakdown of plant or machinery, non delivery or shortage of supplies or any other cause beyond BlueScope’s control.

7. Retention of Title

1. The Purchaser agrees that legal and equitable title to the Goods is retained by BlueScope until BlueScope receives payment in full from the Purchaser for the Goods and all other monies owing by the Purchaser to BlueScope at any time. Prior to title in the Goods passing to the Purchaser, the Purchaser:
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   1. must hold the Goods as bailee and fiduciary agent of BlueScope;
   2. where the Purchaser processes the Goods, either by using the Goods to manufacture other goods or by incorporating the Goods in or with any other goods, must hold such part of the new goods (“Processed Goods”) on trust for BlueScope as bailee and fiduciary agent of BlueScope;
   3. must store the Goods and such part of the Processed Goods separate from its own goods and those of any other third party so that they are readily identifiable as the property of BlueScope;
   4. must keep the Goods in good and merchantable condition and fully insure the Goods against loss or damage however caused;
   5. must not sell the Goods except with the prior written consent of BlueScope or in the ordinary course of the Purchaser’s business, provided that any such sale is at arms’ length and on market terms;
   6. any proceeds of re-sale, insofar as they relate to the Goods shall be held on trust for BlueScope in a separate account; and
   7. must not create any encumbrance over the Goods which is inconsistent with BlueScope’s title and ownership of the Goods.
2. For purpose of this clause 7, “such part” means an amount equal in dollar terms to the amount owing by the Purchaser to BlueScope at the time the Goods are used in the manufacture of, or incorporated into, the Processed Goods.
3. If the Purchaser is in breach of these Conditions including, without limitation, failure by the Purchaser to make payment for the Goods by the date specified by BlueScope to the Purchaser or in BlueScope’s reasonable opinion the payment of any amount in respect of the Goods supplied by BlueScope is in jeopardy, the Purchaser must return the Goods to BlueScope immediately on demand.
4. If the Purchaser does not return the Goods to BlueScope on demand under clause 7.3, the Purchaser irrevocably authorises representatives of BlueScope to enter upon any site where the Goods are located to take possession of the Goods without prior notice, and the Purchaser indemnifies BlueScope for all fees (including legal fees on a full indemnity basis), costs and expenses incurred or suffered as a result of any and all prosecution, actions, demands, claims or proceedings brought by or against BlueScope in connection with the retaking possession of the Goods or the exercise by BlueScope of its rights under this clause, and the Purchaser shall repay all such fees, costs, losses, damages, expenses or any other sums of money on demand.

8. Application of the PPSA

1. In this clause 8, PPSA means the Personal Property Securities Act 2009. Ifa term used in this clause has a particular meaning in the PPSA, it has the same meaning in this clause.
2. This clause 8 applies to the extent that BlueScope’s interest in any Goods is a security interest.
3. The Goods are steel and other metallic products and rollformed steel building products.
4. The Purchaser acknowledges and agrees that BlueScope may apply to register a security interest in the Goods at any time before or after delivery of the Goods. The Purchaser waives its right under s 157 of the PPSA to receive notice of any verification of the registration.
5. BlueScope can apply amounts it receives from the Purchaser towards amounts owing to it in such order as BlueScope chooses.
6. If the Purchaser defaults in the performance of any obligation owed to BlueScope under these Conditions or any other agreement for BlueScope to supply Goods to the Purchaser, BlueScope may enforce its security interest in any Goods by exercising all or any of its rights under these Conditions or the PPSA. To the maximum extent permitted by law, the Purchaser and BlueScope agree that the following provisions of the PPSA do not apply to the enforcement by BlueScope of its security interest in the Goods: sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143.
7. The Purchaser and BlueScope agree not to disclose information of the kind mentioned in s 275(1) of the PPSA, except in circumstances required by sections 275(7)(b)-(e) of the PPSA.
8. The Purchaser must promptly do anything required by BlueScope to ensure that BlueScope’s security interest is a perfected security interest and has priority over all other security interests in the Goods
9. Nothing in this clause 8 is limited by any other provision of these Conditions or any other agreement between the parties.

9. Damage, Inaccuracies and Defects

1. The Purchaser shall check all Goods received immediately upon unloading and shall notify BlueScope in writing of any inaccuracies or short supply of Goods or any fault, damage or defect in Goods or failure of Goods to comply with the terms of a contract made pursuant to these Conditions within 2 Business Days of the date of delivery of the Goods.
2. Subject to the rights of Consumers set out in clause 11.2, if the Purchaser does not notify BlueScope in writing within 2 Business Days of the date of delivery, BlueScope will not be responsible for any loss or damage whatsoever and howsoever caused arising out of or resulting from such inaccuracies or short supply of Goods, or fault, damage or defect in Goods or failure of Goods to comply with the terms of a contract, except if you are a Purchaser under a Consumer Contract and such loss or damage arises from the negligence or wilful misconduct of BlueScope, or any of its officers, employees or agents.
3. Subject to the rights of Consumers set out in clause 11.2, if the Purchaser notifies BlueScope in writing of a fault, damage or defect in Goods or failure of Goods to comply with the terms of a contract made pursuant to these Conditions within 2 Business Days of delivery then BlueScope will, if in its opinion, the Purchaser’s notice is reasonable and the Purchaser has not used the Goods, at BlueScope’s option, repair or replace the Goods that appear to be faulty, damaged or defective or not in compliance with the terms of a contract made pursuant to these Conditions and BlueScope shall have no additional liability to the Purchaser.
4. Any queries regarding items shown on invoices issued by BlueScope shall be lodged by the Purchaser with BlueScope within 7 days of the issue date of the relevant invoice.
5. Goods are not damaged or defective by reason only of the presence of rust, millscale or rolling seams except as provided for in AS3600.

10. Equipment

1. All roll toolage, shears, lifting and associated equipment which BlueScope makes or obtains to produce the Goods, shall, unless otherwise expressly agreed by BlueScope, be and remain the property of BlueScope and any payment made with respect to them shall be deemed to be a charge in respect of their use. These and any other special tools, jigs, fixtures and patterns acquired or supplied by BlueScope for the fulfilment of the order are the property of BlueScope and are not to be used without its authority.

11. Warranties, Liabilities and Indemnities

1. Where applicable, Goods shall be installed in accordance with BlueScope’s recommended fixing procedures as published from time to time and available on request from your customer service representative
2. BlueScope acknowledges that consumer legislation contains certain guarantees for the supply of goods or services that cannot be excluded, restricted or modified by these Conditions. For example, for Consumers:
   1. goods come with non-excludable guarantees that they are of acceptable quality and fit for the purpose for which they are commonly acquired or for a purpose made known to BlueScope and based on which the goods are supplied, and
   2. services come with non-excludable warranties that they will be provided with due care and skill and are fit for the purpose for which they are commonly acquired or for a purpose made known to BlueScope and based on which the services are supplied. Nothing in these Conditions is intended to exclude or restrict the application of such laws.
3. Subject to the rights of Consumers set out in clause 11.2:
   1. BlueScope shall not be responsible for the consequence of any representation made or technical advice given by its employees, agents or sub-contractors in connection with the design, installation and use of the Goods, and the Purchaser agrees that all such advice is accepted by the Purchaser entirely at the Purchaser’s risk;
   2. or as otherwise expressly specified in the terms of any applicable written warranty provided by BlueScope, BlueScope’s liability to the Purchaser (whether arising under statute, contract, tort (including negligence), equity or otherwise) for any defect in the Goods, or the supply of the Goods, is limited, at BlueScope’s option, to:
      1. in the case of Goods, the repair of the Goods, the replacement of the Goods or paying for the cost of repair or replacement of the Goods; or
      2. in the case of services, the resupply of services or paying for the cost of resupplying the services;
   3. and also subject to clause 11.3(b), BlueScope is not liable to the Purchaser or anyone else in connection with the Goods or the supply of the Goods or with these Conditions (including any changes to the Conditions), including without limitation for:
      1. any losses, costs, damages, expenses, claims, demands, actions, suits or proceedings (including without limitation for damage to the Goods or injury to any person) arising from:
         1. the loading, unloading or delivery of the Goods;
         2. a failure to deliver, or delay in delivering, the Goods;
         3. a failure to install the Goods in accordance with BlueScope’s recommended fixing procedures as published from time to time;
         4. the removal of defective Goods or the installation of replacement Goods; or
         5. the use of any tool or equipment loaned or hired out by BlueScope;
      2. any direct, indirect or consequential loss or damage, any loss of actual or anticipated savings, opportunity, revenue, profit or goodwill, or other economic loss; and
      3. any claim, action or proceeding by a third party against the Purchaser (or any loss, damages or liability incurred or suffered by the Purchaser as a result of any such claim, action or proceeding); and
   4. the Purchaser indemnifies BlueScope from and against all losses, damages, costs and expenses suffered or incurred by BlueScope, and all claims, demands, suits, actions or proceedings made or brought against BlueScope, arising out of:
4. BlueScope’s use of or reliance on any materials, design, drawing or specification provided to BlueScope by the Purchaser (including any allegation or claim that any such use or reliance by BlueScope infringes the intellectual property rights of any person);
5. any loss or damage caused by or during the processing of materials supplied to BlueScope by the Purchaser; or
6. any loss or damage caused by any tool or equipment, or the use of any tool or equipment, hired out by BlueScope to the Purchaser,
   except if you are a Purchaser under a Consumer Contract and such loss or damage arises from the negligence or wilful misconduct of BlueScope, or any of its officers, employees or agents.

12. Miscellaneous

1. These Conditions set out the entire agreement between the parties in relation to their subject matter. The terms of the United Nations Convention on Contracts for the International Sale of Goods 1980 are expressly excluded.
2. The law applicable to the agreement between BlueScope and the Purchaser is the law of the State or Territory in which the Goods are delivered. BlueScope and the Purchaser submit to the jurisdiction of the relevant State or Territory courts.
3. Non stock items are not returnable by the Purchaser to BlueScope. BlueScope may in its discretion accept the return of stock items and in so doing may charge the Purchaser a restocking charge.
4. Nothing in these Conditions shall constitute BlueScope as a subcontractor of the Purchaser. BlueScope’s obligations are limited to those of a material supplier.
5. For the purpose of these Conditions and any transaction effected pursuant to these Conditions, mass of steel reinforcing bars will be calculated on the basis of per metre as defined in AS4671-2001 plus an allowance for rolling margin as determined by BlueScope from time to time. The length used in the calculation of mass will be as defined in AS1100 part 501.
6. A party waives a right under these Conditions only if it does so in writing. A party does not waive a right simply because it fails to exercise the right, delays exercising the right or only exercises part of the right. A waiver of one breach of a term of these Conditions does not operate as a waiver of another breach of the same term or any other term.
7. If a provision in these Conditions is wholly or partly invalid or unenforceable in any jurisdiction, that provision or the part of it that is invalid or unenforceable must, to that extent, and in that jurisdiction, be treated as deleted from these Conditions. This does not affect the validity or enforceability of the remaining provisions in that jurisdiction, or of the deleted provision in any other jurisdiction.
8. BlueScope may assign or otherwise deal with the benefit of any contract made pursuant to these Conditions without the consent of the Purchaser.
9. BlueScope and the Purchaser may conduct business by Electronic Data Interchange (EDI). The Purchaser agrees that if it has EDI capability with BlueScope’s EDI is the preferred method of conducting business. BlueScope and the Purchaser agree that EDI will be conducted in accordance with the terms of any Electronic Trading Partner Agreement to which they are parties and into which these Conditions of sale are incorporated.

13. Interpretation

In these Conditions:
Business Day means Monday to Friday (inclusive) excluding public holidays at the place of delivery. Consumer means a person who acquires Goods from BlueScope where:

1. the amount paid or payable for the Goods did not exceed $40,000; or
2. the Goods were of a kind ordinarily acquired for personal, domestic or household use or consumption,

unless the Goods were acquired for the purpose of re-supply or the purpose of using them up or transforming them in trade or commerce.

GST means the tax payable on Taxable Supplies within the meaning of the GST
Act; GST Act means the A New Tax System (Goods and Services Tax) Act 1999 and any related legislation imposing such tax or legislation that is enacted to validate, recapture or recoup such tax;
Purchaser means a person, being an incorporated or unincorporated business or
an individual, who acquires Goods from BlueScope, and includes a Consumer; Related Corporation has the meaning given to the term “related body corporate” in section 50 of the Corporations Act 2001;
Working Hours means between 7.00am and 5.00pm, Monday to Friday (inclusive) excluding public holidays.

Issue Date: 1 July 2011

Conditions of Sale (PDF)