(a) In these conditions:
Buyer means the purchaser of the Goods.
Goods means the products and, if any, services specified overleaf.
Seller means Techpack Pty Ltd ACN 002 499 023, of Unit 6, 31-41 Bridge Road, Stanmore, NSW 2048, which is the seller of the Goods.
(b) Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010) and which by law cannot be excluded, restricted or modified.
These conditions (which shall only be waived in writing signed by the Seller) shall prevail over all conditions of the Buyer's order and any other terms and conditions contained in any document of the Buyer or elsewhere, to the extent of any inconsistency. Any terms and conditions proposed by the Buyer that are inconsistent with these conditions are expressly rejected and the Buyer agrees may be disregarded.
- Terms of sale
The Goods and all other products sold by Seller are sold on these terms and conditions. By making any order for the Goods or taking delivery of the Goods the Buyer accepts these terms and conditions, and the terms set out in the most recent quotation, invoice or order confirmation form issued by the Seller in respect of the Goods and agrees to be bound by the terms set out these conditions, and the most recent quotation, invoice or order confirmation form issued by the Seller in respect of the Goods.
- Seller's quotations and orders
(a) Unless previously withdrawn, Seller's quotations are open for acceptance within the period stated in them or, when no period is so stated, within 30 days only after its date. The Seller may in its absolute discretion refuse to provide Goods ordered where:
(i) Goods are unavailable for any reason whatsoever or not available to the Seller at the price upon which the Seller’s quote to the buyer was based;
(ii) credit limits cannot be agreed upon or have been exceeded; or
(iii) payment for Goods previously provided to the Buyer or any related corporation of the Buyer or to any other party who is, in the reasonable opinion of the Seller, associated with the Buyer under the same or another supply contract, has not been received by the Seller.
(b) An order cannot be cancelled without the prior written consent of the Seller. Where an Order is cancelled, the Buyer indemnifies the Seller against any Losses incurred by the Seller as a result of the cancellation, including, but not limited to loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.
(a) Unless otherwise stated all prices quoted by the Seller are net, exclusive of Goods and Services Tax (GST). If GST is applicable, the Buyer must pay the amount of any GST in respect of the supply of the Goods to the Seller, in addition to the prices quoted by the Seller.
(b) Prices quoted are those ruling at the date of issue of quotation and are based on rates of materials, foreign exchange, shipping expenses, customs duties, cartage, freight, insurance, sorting and stacking charges, and other charges affecting the cost of production ruling on the date the quotation is made.
(c) If there is any increase to the amount the Seller's has to pay for air freight in relation to the supply of the Goods, due to foreign exchange movements, or if the overfulfilment for the Goods increases the Seller's cost of transport of the Goods, these increases are to the Buyer's account and the price of the Goods is increased accordingly.
- Invoicing and payment
(a) The Seller may in its absolute discretion, issue an invoice to the Buyer in any one or more of the following ways:
(i) prior to commencing the provision of the Goods or Services, for an amount equal to the price set out in the Seller's quotation, where the Seller has not previously supplied Goods to the Buyer or where the Seller chooses to do so; or
(ii) upon completion of the provision of the Goods or Services or any time thereafter, for an amount equal to price set out in the Seller's quotation or the balance of the Seller's quote outstanding, any Additional Charges and any amount not previously invoiced, or if no Quote was provided, for an amount representing the Seller's charge for the Goods and for any Additional Charges.
(b) The Buyer must pay an invoice issued by the Seller to the Seller within the period for payment specified in the Seller's quote beginning from the invoice date, or if no period is stated in the quote, within 14 days of a valid tax invoice being issued to the Buyer.
(c) If any invoice is due but unpaid, the Seller may withhold the provision of any further Goods until overdue amounts are paid in full.
(d) The Seller may in its complete discretion apply any payment received from the Buyer to any amount owing by the Buyer to the Seller.
(e) The Buyer is not entitled to retain any money owing to the Seller notwithstanding any default or alleged default by the Seller.
(f) The Buyer is to pay the Seller on demand interest at the rate of 10% per annum on all overdue amounts owed by the Buyer to the Seller, calculated daily.
(g) All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of the Seller, are to be paid by the Buyer as a debt due and payable under these conditions.
(h) The Buyer and the Seller agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST.
- Fulfilment Variance
The Buyer waives any claim for shortage of more than 10% (or where quoted 15%) of the order quantity of any Goods delivered if the claim in respect of short delivery has not been lodged with the Seller within 14 days from the date of notification to the Buyer.
- Compliance with Drawings, Technical Data Sheets, etc.
(a) Any deviation of the Goods from any technical data sheets, drawings, particulars of weights and dimensions or other specifications submitted to the Seller does not vitiate any contract with the Seller or form grounds for any claim against the Seller. The Seller expressly excludes any agreement, warranty or representation that the Goods will conform to any specifications other than those supplied by the Seller in relation to the Goods.
(b) In any order of Goods, variations from drawings or technical data sheets may occur in some items, subject to acceptable quality limit documentation and sampling methods, details of which are available on request. The Seller will not be liable for such variations that are within the parameters set out in any acceptable quality limit documentation made available by the Seller in relation to the Goods at the time of order.
(c) The descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the contract of sale of the Goods or of the description applied to the Goods, unless specifically guaranteed in writing by the Seller.
(d) The drawings, specifications, computer media, documents, samples, or other information the Seller furnishes the Buyer in connection with the Goods may comprise in whole or part trade secrets that are proprietary to the Seller and protectable by law. The Buyer agrees that it will disclose the trade secrets only to its employees and agents on a “need-to-know” basis, will take reasonable measures to prevent disclosure of the trade secrets to any other persons, and will return to the Seller or destroy any information containing the trade secrets after the Buyer's need for the information ends, or upon the Sellers demand.
The Seller is under no liability for damages for failure of the Goods to attain any performance figures or other specification given by the Seller unless such figures or specifications are specifically guaranteed in writing by the Seller. Any such written guarantees are subject to the recognised tolerances applicable to such figures.
It is the obligation of the Buyer to establish the compatibility of Goods for their intended purpose and the Seller makes no statement, warranty or representation that Goods will be fit for any particular purpose. Techpack strongly recommends Buyers conduct rigorous testing of the goods before placing commercial orders. Samples are available for this purpose on request.
(a) The delivery times made known to the Buyer are estimates only and the Seller is not liable for late delivery or non-delivery.
(b) The Seller will not be liable for any loss, damage or delay occasioned to the Buyer or its Buyers arising from late or non-delivery or late installation of the Goods.
(c) The Seller may at its option deliver the Goods to the Buyer in any number of instalments unless there is an endorsement overleaf to the effect that the Buyer will not take delivery by instalments.
(d) If the Seller delivers any of the Goods by instalments, and any one of those instalments is defective for any reason:
(i) this does not constitute a repudiation of the contract of sale formed by these conditions; and
(ii) the defective instalment is a severable breach that gives rise only to a claim for compensation.
11. Exclusion of liability
(a) The Buyer expressly agrees that use of the Goods is at the Buyer's risk. To the full extent allowed by law, the Seller's liability for breach of any term implied into these conditions by any law is excluded.
(b) Except as expressly set out in clause 14, Seller gives no warranty in relation to the Goods provided or supplied. Except as expressly set out in clause 14, under no circumstances is the Seller liable or responsible in any way to the Buyer or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues), as a result, direct or indirect of any defect, deficiency or discrepancy in the Goods including in their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
(i) any Goods supplied to the Buyer;
(ii) any delay in supply of the Goods; or
(iii) any failure to supply the Goods.
(c) Any advice, recommendation, information, assistance or service given by the Seller in relation to Goods and/or Services is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty or accuracy, appropriateness or reliability. The Seller does not accept any liability or responsibility for any Loss suffered as a result of the Buyer's reliance on such advice, recommendation, information, assistance or service.
(d) To the fullest extent permissible at law, the Seller is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide the Goods, or otherwise arising out of the provision of Goods, whether based on conditions, negligence, strict liability or otherwise, even if the Seller has been advised of the possibility of damages.
(e) The Buyer acknowledges and warrants that the Goods are not for personal, domestic or household purposes and that the Buyer is purchasing the Goods for re-sale or use in manufacture.
(f) The Australian Consumer Law may give to the Buyer certain guarantees. Where liability for breach of any such guarantee can be limited, the Seller's liability (if any) arising from any breach of those guarantees is limited with respect to the supply of goods, to the replacement or repair of the Goods.
(g) The Seller agrees to assign to the Buyer on request made by the Buyer the benefit of any warranty or entitlement to the Goods that the manufacturer has granted to the Seller under any contract or by implication or operation of law, to the extent that the benefit of any warranty or entitlement is assignable.
12. Indemnification by manufacturers
The Seller's liability under s 274 of the Australian Consumer Law is expressly limited to a liability to pay to the Buyer an amount equal to:
(a) the cost of replacing the Goods;
(b) the cost of obtaining equivalent goods; or
(c) the cost of having the Goods repaired,
whichever is the lowest amount.
Without limiting or affecting any other provision of these Terms, Buyers of bottle cap lining materials ("liner material" or "liner goods") acknowledge that Seller has no liability for defects in liner material Goods except to the extent directly attributable to the design or manufacture of the liner material and that the Seller's liability in relation to liner material is further limited (to the extent permitted by law and always subject to any guarantees under the Australian Consumer law that cannot be excluded) in the manner set out in this clause.
Liner material must be handled and processed based on the Seller's specifications. The Seller is not liable for material or sealing failures or other defects due to variables out of the Seller's control, including liner printing by the Buyer, liner piercing or hole punching, insertion of valves, vents, or other fitments into liner, liner die cutting, liner insertion, closure or container dimensions, closure or container defects, closure storage and closure shelf life, and the filling, capping and induction processes. The Seller is not liable for material or sealing failures due to overprocessing, including excessive induction settings, excessive dwell time in the induction unit, or high fill temperature. The Seller is not liable for material or sealing failures, or injuries, losses, or damages resulting from alterations, modifications, or additions to the Goods.
The Seller is not liable for defects in liner material unless the Buyer has demonstrated that the Buyer has taken all reasonable efforts to minimize the amount of liner goods involved and the extent of the damage to property or persons, including the following at the Buyer's facilities, at facilities using the goods, and at facilities filling containers:
- First in-first out of all liner material and lined closures.
- Compliance with shelf life and storage specifications for the liner material and lined closures.
- Full documentation and performance of all on-line quality checks, including an appropriate sampling plan, defined action plan on problem identification, and set up and calibration procedures, according to our specifications.
- Line start up and clearance procedures that eliminate the risk of unsealed containers leaving the facility.
- Incoming and in-process inspection of the liner material during the liner process.
- Proper set up and maintenance procedures for liner die-cutting and insertion operation.
- Systems that guarantee full traceability from roll of liner material to individual cartons of lined closures and from individual cartons of lined closures to individual filled containers.
The Seller warrants that the Goods shall conform to the specifications in the most recent specification sheet for the Goods supplied by the Seller to the Buyer before the delivery of the Goods to the Buyer, for a period of one year from the date of manufacture of the relevant Goods.
The Seller's liability arising from any breach of the warranty is limited to the replacement or repair of the Goodsor, at the Seller's election, to crediting to the Buyer with an amount not exceeding the purchase price of the Goods.
15. Rights in relation to Goods
The Seller reserves the following rights in relation to the Goods until all accounts owed by the Buyer to the Seller are fully paid:
(a) ownership of the Goods;
(b) to enter the Buyer's premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods; and
(c) subject to, and in accordance with, the Personal Property Securities Act 2009, to keep or resell any Goods repossessed pursuant to (2) above.
If the Goods are resold, or products manufactured using the Goods are sold by the Buyer, the Buyer shall hold such part of the proceeds of any such sale as represents the invoice price of the Goods sold or used in the manufacture of the Goods sold in a separate identifiable account as the beneficial property of the Seller and shall pay such amount to the Seller upon request. Notwithstanding the provisions above the Seller shall be entitled to maintain an action against the Buyer for the purchase price and the risk of the Goods shall pass to the Buyer upon delivery or any earlier time specified in the Seller's quotation.
16. Buyer's property
Any property of the Buyer under the Seller's possession, custody or control is completely at the Buyer's risk as regards loss or damage caused to the property or by it.
The Seller reserves the right to charge a reasonable fee for storage if delivery instructions are not provided by the Buyer within seven days of a request by the Seller for such instructions. The parties agree that the Seller may charge for storage from the first day after the Seller requests the Buyer to provide delivery instructions.
18. Returned Goods
(a) Except for any express provisions to the contrary contained in this agreement, the Seller is not under any duty to accept Goods returned by the Buyer and will do so only on terms to be agreed in writing in each individual case.
(b) If the Seller agrees to accept returned Goods from the Buyer under para (a) of this clause, the Buyer must return the Goods to the Seller at the Seller's place of business referred to at the head of these conditions.
All Goods to be supplied by the Seller to the Buyer are as described on the order confirmation provided by the Seller and the description on such purchase order prevails over all other descriptions of the Goods including any specification or enquiry of the Buyer, unless there is an error in the order confirmation and the Buyer notifies the Seller of the error in writing within 48 hours of receipt of the order confirmation from the Seller.
No order may be cancelled by the Buyer except with the written consent of the Seller. In the event of a cancellation of the order by the Buyer, the Seller has the right to claim indemnity against all losses suffered by the Seller as a result of such cancellation.
21. Personal Property Securities Act 2009 (PPSA)
(a) This agreement is a security agreement.
(b) The interest of the Seller in the Goods and all proceeds from the sale of the Goods by the Buyer to a third party is a security interest.
(c) The Buyer consents to the Seller registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonable required by the Seller to facilitate registration.
(d) Until such time as title in the Goods has passed to the Buyer as contemplated by clause 13 of this agreement, the Buyer agrees not to in any way assign, charge, lease or otherwise deal with the Goods in such a manner as to create, a security interest over, the Goods in favour of the Buyer or any third party, The parties agree that this clause will not prohibit the Buyer from selling the Goods in the ordinary course of business..
(e) The Buyer waives its rights to receive any notice under PPSA (including notice of verification statement) unless the notice is required by that Act and cannot be excluded.
(f) The Seller and Buyer agree that this agreement and all related information and document(s) are confidential (Confidential Information) and will not be disclosed to unauthorised representatives or third parties, except to the extent disclosure is permitted by this agreement or required by law. The Seller and Buyer agree that the Seller will not disclose the Confidential Information pursuant to a request under section 275(1) of the PPSA.
(g) The Seller and the Buyer agree each of the following requirements or rights under the PPSA do not apply to the enforcement of the Seller’s security interest in the Goods or of this agreement:
(i) any requirement for the seller to give the Buyer a notice of removal of accession;
(ii) any requirement for the Seller to give the Buyer a notice of the Seller’s proposed disposal of the goods;
(iii) any requirement for the Seller to include in a statement of account, after disposal of the Goods, the details of any amounts paid to other secured parties;
(iv) any requirement for the Seller to give the Buyer a statement of account if the Seller does not dispose of the Goods;
(v) any right the Buyer has to redeem the Goods before the Seller exercises a right of disposal; and
(vi) any right the Buyer has to reinstate this agreement before the Seller exercises a right of disposal of the Goods.
(h) Expressions defined in the PPSA have the same meaning when used in this agreement.
(a) This agreement will automatically terminate if a party enters into any composition or arrangement with its creditors or has a receiver appointed over any of its assets or is the subject of any resolution or petition for winding up or judicial management (other than for the purpose of amalgamation or reconstruction).
(b) Either party may terminate this agreement if the other party is in material breach of any of its obligations under this agreement and if the breach is capable of remedy fails to remedy the breach for a period of 30 days after receipt of a written notice by the other party requiring rectification of the breach.
(c) Exercise of the right of termination afforded to either party under this clause will not prejudice the legal rights or remedies which either party may have against the other in respect of a breach of any term, condition or warranty of this agreement.
(d) The obligations of the parties that by their nature could reasonably construed as being intended to continue to apply beyond the termination of this agreement will continue to apply.
23. Place of contract
(a) The contract for sale of the Goods is made in and governed by the laws of the state or territory of Australia from which this document is issued and each party irrevocably submits to the non-exclusive jurisdiction of the courts of such state or territory.
(b) The parties submit all disputes arising between them to the courts of such state or territory and any court competent to hear appeals from those courts of first instance.
(c) The United Nations Convention on Contracts for the International Sale of Goods concluded in Vienna, Austria on 11 April 1980 does not apply to this contract or to any individual contract of sale of Goods concluded within the framework of this contract.