To the fullest extent legally possible, all Australian dealings between Specialty Packaging Group Pty Ltd ABN48 005 319 666 (“SPG”) and any Customer relating to any products, services or transactions are subject to the following Terms & Conditions of Sale (“these Terms”) unless otherwise agreed in writing.
1. Payment: a) Cash Purchases will be paid for with order (“CWO”) or at or prior to delivery (“COD”) as required by SPG b) Credit Purchases will be paid for by cash, cheque, bank cheque or EFT without deduction, on or before the end of the month following the month the invoice was raised by SPG.
2. Interest may be charged by SPG at its election, on overdue accounts at the rate applicable under the Penalty Interest Rates Act 1983 (Vic) plus an additional 2%.
3. Property: a) Property in products shall not pass until payment in full of all monies owed for products or on any other basis & SPG reserves the right to take possession & dispose of products as it sees fit at any time until full payment b) The Customer grants permission to SPG to enter any property where any product is in order to do so with such force as is necessary c) Upon delivery the Customer accepts liability for safe custody of products & indemnifies SPG for any losses relating thereto d) Upon disposition of any products prior to payment in full, the Customer agrees to hold all proceeds in trust for SPG and deposit them in a separate bank account, agrees not to mix proceeds with any other monies & will account to SPG therefore notwithstanding any credit facility &/or time to pay or any conduct of SPG e) Until payment in full the Customer agrees (I) to keep all products unpaid for as fiduciary for SPG & store them in a manner which shows SPG as owner (ii) only to sell products in the usual course of its business (iii) sale on terms or for less than cost shall not be “in the usual course” f) This clause 3 is not intended to create a charge & shall be read down to the extent necessary g) The Customer agrees that (i) products will be deemed at all times to be dealt with by the Customer on a “first in first out” basis (ii) a certificate purporting to be signed by an officer of SPG identifying products as unpaid for shall be conclusive evidence that the goods have not been paid for & of SPG's title thereto h)If the Customer uses product in any manufacturing, packaging, fabrication or process, the Customer agrees to hold such part of the proceeds of sale of finished articles which equates to the invoiced price for the products used (and until the invoice is paid, that part of the book debt relating thereto) upon trust for SPG until payment in full for those products and of all monies owed to SPG.
4. Limitation Of Liability: a) The Customer agrees to limit any claim it makes to the cost of supply of equivalent products or the supply of services again b) SPG shall not be liable for any claim, loss or expense which is made after 14 days from date of delivery or performance (or at all once products have been unpacked, on-sold or otherwise used or applied) after which there shall be deemed to be unqualified acceptance c) SPG will not be liable for any contingent consequential direct indirect special or punitive damage arising in any way whether due to SPG's negligence or otherwise & the Customer acknowledges this express limit of liability & agrees to limit any claim accordingly d) No other term, condition, agreement, warranty, representation or understanding whether express or implied, extending to or relating to or binding upon SPG is made or given.
5. Exclusions: a) Sample: No contract between SPG & the Customer shall be or be deemed to be a sale by sample b) If SPG publishes material concerning its products, services or prices anything so published which is incompatible with these Terms is expressly excluded c) The Customer will rely on its own knowledge & expertise in selecting any product or services for any purpose & any advice or assistance given for or on behalf of SPG shall be accepted at the Customer’s risk & shall not be or be deemed given as expert or adviser nor to have been relied upon by or through the Customer.
6. Customer Material etc: The Customer agrees a) that it is the Customer’s sole responsibility to ensure that materials, designs, drawings, specifications, procedures etc (“Material”) which is provided by or on behalf of the Customer, to be used by SPG in meeting any orders, are correct and appropriate b) Material will be relied upon by SPG c) any Material or property used by SPG in providing any product or services shall be of merchantable quality, fit for the purpose and become the property of SPG.
7. Placement Of Orders: The Customer agrees a) in the event of any dispute concerning any order (including any question of identity or authority or any telephone, facsimile e-mail, e-commerce or computer generated order) that the internal records of SPG will be conclusive evidence of what was ordered b) each order it places shall be & be deemed to be a representation by it, made at the time, that it is and will remain in the future solvent & able to pay all of its debts as & when they fall due c) failure to pay SPG in accordance with these Terms shall be & be deemed to be conclusive evidence that the Customer had no reasonable grounds for making the representation referred to in 7.b) & that the representations were unconscionable, misleading and deceptive d) when any order is placed, the Customer shall inform SPG of any material facts which would or might reasonably affect the commercial decision by SPG to accept the order &/or grant credit in relation thereto. Any failure to do so by or on behalf of the Customer shall create & be deemed to create an inequality of bargaining position & be deemed to constitute the taking of an unfair advantage of SPG & to be unconscionable, misleading and deceptive.
8. Purchase Price: a) All sales are made at SPG’s ruling price at time of delivery b) duty, Government charges etc. including GST (“imposts”) will be to the Customer’s account. SPG price lists exclude imposts unless expressly noted thereon c) any volume rebate or settlement discount will be calculated on base price exclusive of imposts.
9. Delivery: a) SPG accepts no responsibility for delivery but may elect to arrange delivery at its discretion & without any liability & at the Customer's costs & responsibility in all things b) SPG may charge for any delivery c) the Customer will be deemed to have accepted delivery & liability for products immediately SPG notifies that they are ready for collection or they are delivered to a carrier or to the Customer's business premises or site whether attended or not d) a certificate purporting to be signed by an officer of SPG confirming delivery shall be conclusive evidence of delivery as shall any signed delivery docket e) SPG will not be liable for delay failure or inability to deliver any products or perform any Services f) the Customer will pay all costs of SPG in holding products for the Customer after SPG gives notice that they are ready for collection or delivery.
10.Variations in Quantity: The Customer agrees to accept a permissible variation of quantity provided the variation does not exceed + or – 10% of the quantity ordered.
11. Pallets etc: The Customer will promptly return pallets and reusable packaging provided by SPG and indemnifies SPG for the hire and/or replacement cost thereof, if not returned within 14 days of request by SPG.
12. Products and Services a) SPG disclaims any responsibility or liability relating to any products or services i) made or performed to designs, drawings, specifications &/or procedures etc or with any materials which are provided or approved by or on behalf of the Customer ii) utilised, stored, handled or maintained incorrectly or inappropriately b) the Customer agrees to check all products and services for compliance with all applicable Standards & regulatory bodies before use, on-sale or application & to use or apply same in accordance therewith and with all manufacturer or SPG recommendations & directions and good commercial practice. c) the Customer acknowledges SPG may update modify alter or make substitution for any of its products or any component in or used in forming any party of any products as part of its ongoing business development, and agrees to accept current products in substitution for any products ordered provided they are not materially different.
13. Other Terms & Conditions: No terms & conditions sought to be imposed by the Customer (including any Terms and Conditions of Purchase or the like) shall apply.
14. Recovery Costs: The Customer will pay any costs & expenses incurred by SPG or its solicitors, legal advisers, mercantile agents & others acting on SPG's behalf in respect of anything arising from these Terms or any dealing with SPG.
15. Attornment: To give effect to its obligations arising hereunder, the Customer irrevocably appoints any solicitor acting for SPG from time to time, as its attorney in all things.
16. Variation or cancellation of these Terms or any order must be in writing and will not bind SPG unless approved in writing by an authorised representative of SPG.
17. Defaults: Upon any breach of these Terms or default in any dealing with SPG by the Customer a) SPG may (inter alia) retain all monies paid &/or cease further deliveries & recover from the Customer all loss of profits arising &/or at its discretion take possession of any products not paid for, without prejudice to any other of its rights & without being liable to any party b) The Customer agrees not to commence or continue or permit to be commenced or continued through it any action against SPG until any such default or breach is remedied c) SPG will be deemed to have requested the securities referred to in clause 25.
18. Severability: Any part hereof being a whole or part of a clause, shall be capable of severance without effecting any other part of these Terms.
19. Customer Restructure: The Customer a) will notify SPG in writing of any change in its structure or management including any change in director, shareholder, management or change in partnership or trusteeship or of sale of any material part of its business within 7 days of any such change b) will be liable to SPG for any purchases from SPG by any party acquiring any material part of the Customer’s business until such notice is given .
20. Jurisdiction: All dealings with SPG shall be deemed to occur in the State nominated by SPG & the Customer agrees to submit to the jurisdiction of any Courts nominated by SPG.
21. Credit Limit: SPG can vary or withdraw any credit facility at any time at its discretion, without liability to the Customer or any other party.
22. Waiver: If SPG elects not to exercise any rights arising from any breach of these Terms it shall not be a waiver of any rights relating to any subsequent or other breach.
23. Notice: The Customer agrees that it will be deemed to have notice of any change to these Terms immediately they are adopted by SPG. The Customer agrees to be bound by any terms & conditions of sale adopted by SPG immediately they are so adopted & notwithstanding any other purported or pre-existing terms & conditions of SPG.
24. Indemnity: The Customer indemnifies SPG against any claim or loss arising from or related to any dealing with SPG or anything arising therefrom, or arising as a result of or subsequent to any breach of these Terms or any part of the Trade Practices Act 1974 (C’W).
25. Security For Payment: The Customer will on request, execute a charge in favour of SPG which charges (i) by way of a fixed charge all its books of account, financial records, goodwill, documents of title & current & later acquired real property & intellectual property & (ii) by way of floating charge, the whole of the Customer’s other assets, with payment of all monies owed.
26. Forward Orders etc: For any order or forward order, the Customer agrees a) to pay for so much of any order as is invoiced by SPG b) that no delay or failure to fulfil any part of any order shall entitle the Customer to cancel or vary any order or delay or reduce any payment.
27. Force Majeure: SPG will not be in default or breach of any contract with the Customer, or any of these Terms, as a result of Force Majeure. Force Majeure means beyond the reasonable control of SPG and includes any strike or lock-out.
28. Insolvency: a) If the Customer commits or is involved in any act of insolvency it agrees that this should be deemed in default under these terms b) An act of insolvency is deemed to include bankruptcy, liquidation, receivership, administration or the like.
29. Packaging: The Customer agrees it is solely responsible for ensuring that all product and any material used for packaging complies with all laws, regulations, standards and packaging covenants applicable thereto and does not breach any copyright or intellectual property rights.
30. Tooling: The Customer agrees that all tooling, materials, industrial or intellectual property or the like used in the preparation for or production of any products or provision of any services will be and remain the property of SPG despite any contribution by the Customer.
31. Industrial and Intellectual Property: The Customer warrants that at all times it will have all necessary industrial and intellectual property rights in anything it requests of SPG.
32. Vienna Convention Excluded: The United Nations Convention on Contracts for the International Sales of Goods or any modification or substitution therefor is expressly excluded.
33. Artwork & Experimental Orders etc: The Customer agrees to pay for any a) artwork, designs, stereos, blocks engravings etc or modifications thereto etc involved in any order, in addition to the agreed prices b) experimental or preliminary work or product requested.
34. Abnormal payments: the Customer will pay an administration fee of 3% (calculated on the amount paid) on any payment made other than as provided in clause 1 hereof, which fee is agreed as the liquidated cost of processing the payment.
35. Ability to Supply: SPG will not be liable for any delay in supply or availability of any products or services and may allocate them between Customers at its discretion.
36. Contracts and Quotations between the parties will be deemed to incorporate these Terms by reference. If there is any conflict between these Terms and any contract or quotation, the contract or quotation will prevail to the extent necessary to resolve any such conflict but these Terms will otherwise continue to apply.
37. Deposits: The Customer agrees to pay SPG any deposit required by SPG as a condition of acceptance by SPG of any Order.