1.1 These terms and conditions represent the whole Agreement between THE PACKAGING GROUP PTY LTD (“Supplier”) and the person identiﬁed on any Quote or Order as the customer, including its agents and permitted assigns (“Customer”) as amended from time to time (“Terms”).
1.2 These Terms apply to all transactions between the Customer and the Supplier and are legally binding.
1.3 These Terms constitute the entire agreement between the Supplier and Customer unless a Supply Agreement and/or Credit Terms are in eﬀect between them.
1.4 In the event of any inconsistency between any Supply Agreement and or Credit Terms and these Terms, the Supply Agreement and or Credit Terms shall prevail to the extent of the inconsistency.
1.5 The variation or waiver of a provision of these terms or a party’s consent to a departure from a provision is ineﬀective unless in writing signed by the parties.
2. Deﬁnitions and interpretation
2.1 Deﬁnitions – In these Terms:
“Additional Charge” means:
(a) fees or charges for additional work performed or Goods supplied at the Customer’s request or reasonably required by the Customer, calculated in accordance with the Supplier’s then current prices; and/or
(b) expenses incurred by the Supplier, at the Customer’s request or reasonably required.
“Business Day” means a day that is not a Saturday, Sunday or public holiday in the place where the Supplier is located.
“Credit Terms” means the credit terms and conditions governing any extension of credit by the Supplier to the Customer in connection with the supply of Goods.
“Goods” means any goods supplied by the Supplier to the Customer.
“Intellectual Property Rights” means intellectual property rights at any time protected by statute or common law, including copyright, trademarks, patents and registered designs.
“Loss” includes, but is not limited to, costs (including, but not limited to, party/ party legal costs, Supplier’s legal costs), expenses, lost proﬁts, award of damages, personal injury and property damage.
“Order” means an instruction or order for the supply of Goods placed by the Customer as varied in writing from time to time by the parties.
“PPS Law” means:
(a) the Personal Property Security Act 2009 (Cth) (“PPS Act”) and any regulation made at any time under the PPS Act (each as amended from time to time); and
(b) any amendment made at any time to any legislation as a consequence of a PPS Law.
“Price” means the price payable for any Goods supplied or to be supplied to the Customer by the Supplier.
“Quote” means a written description of the Goods to be provided, an estimate of the Supplier’s charges for the supply of those Goods and an estimate of the date for delivery of the Goods.
“Supply Agreement” means any written agreement between the Supplier and Customer in addition to these Terms and may include any deed, personal guarantee and indemnity agreement.
“Terms” means these terms of trade.
In these Terms, unless the context otherwise requires:
(a) a reference to writing includes email and other communication established through the Supplier’s website (if any);
(b) the singular includes the plural and vice versa;
(c) a reference to a clause is a reference to a clause of these Terms;
(d) a reference to a party to these Terms or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
(e) where an expression is deﬁned, another part of speech or grammatical form of that expression has a corresponding meaning;
(f) headings are for ease of reference only and do not aﬀect the meaning or interpretation of these Terms; and
(g) if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:
i. if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
ii. in all other cases, must be done on the next Business Day.
3.1 The Supplier may provide the Customer with a Quote which will be valid for 30 days from the date of issue and unless otherwise expressly agreed in writing, a Quote does not include delivery of the Goods.
3.2 Quotes are based on the cost of available materials at the time of issue of the Quote and assumes the timely supply by the Customer of all necessary material, artwork and/or instructions to the Supplier.
3.3 Following issue of a Quote to the Customer, the Supplier is not obliged to commence manufacture or supply the Goods until the Quote has been accepted by the Customer by submitting an Order with reference to that Quote.
3.4 The Supplier may amend the Quote (including but not limited to Price) prior to the Customers acceptance of the Quote, placing the Order, or the Supplier commencing the Order, where there have been increases in the Suppliers costs, by notice in writing to the Customer and any amended Quote will be the terms agreed to.
3.5 Any reference to a time frame for the provision of the Goods in a Quote is an estimate only and a failure to deliver the Goods within the estimated date for delivery shall not relieve the Customer from the obligations to pay the full cost of the Order.
4.1 An Order by the Customer for the provision of Goods must be submitted to the Supplier
using the Supplier’s order form or otherwise in writing.
4.2 An Order placed by the Customer must clearly identify the Goods ordered and any relevant Quote (if any) to be valid. Any costs incurred by the Supplier in reliance on incorrect or inadequate information may incur an Additional Charge.
4.3 Orders must be signed by an authorised representative of the Customer and must specify the required date of delivery.
4.4 Placement of an Order by the Customer signiﬁes acceptance by the Customer of these Terms and the Quote or any amended Quote issued (if any).
4.5 The Supplier may in its absolute discretion accept or refuse the Order.
4.6 An Order accepted by the Supplier cannot be cancelled without the prior written consent of the Supplier. Where an Order is cancelled, the Customer indemniﬁes the Supplier against any Loss incurred by the Supplier 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.
5.1 The Customer may request in writing an Order be varied to the Supplier and any such variation must be agreed to in writing by the Supplier to have eﬀect.
5.2 If the Customer requests any variation to the Order or requirements in the Quote after the placement of the Order or commencement of the Order by the Supplier, the Supplier reserves the right to vary and update the Quote given to include Additional Charges for any variation costs in accordance with its then current charge rates. A revised Quote issued by the Supplier for any variation supersedes the original Quote.
5.3 The Supplier has an automatic extension of time for the provision and delivery of the Goods equal to the delay caused by any variation to the Order or Quote it requests and approved by the Supplier.
6.1 the Price for the supply of any Goods shall be either:
(a) the Supplier’s current price at the date an Order is placed by the Customer; and/or
(b) the Price set out in a Quote (subject to clause 3) shall be binding upon the Supplier save for any errors or omissions provided the Client shall accept the Quote in writing within thirty (30) days; and/or
(c) as indicated on invoices provided by the Supplier to the Customer in respect of Goods supplied.
6.2 Unless otherwise stated in writing, all Prices are exclusive of GST and any other applicable taxes and duties which shall be payable by the Customer.
7. Payment and Invoicing
7.1 The Supplier may require that the Customer pay a deposit or prepay in full the total amount
of an Order prior to the Supplier commencing manufacture or delivery of the Goods.
7.2 Where Goods are supplied to the Customer on credit terms all payments must be made strictly in accordance with those terms failing which the full amount shall become immediately due and payable.
The Supplier’s Credit Terms currently are as follows:
(a) Payment is due within 30 days or otherwise as set out in the Supplier’s Quote whichever is earlier from the date of invoice rendered in respect of the supply of the Goods.
(b) The Supplier may charge interest at two percent (2%) above the rate of interest for the time being ﬁxed under Section 2 of the Penalty Interest Rates Act 1983 (Vic) if payment is not received by the due date.
(c) The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs incurred by the Supplier for enforcement of obligations and recovery of monies due from the Customer to the Supplier.
7.3 The Supplier may issue an invoice to the Customer as follows:
(a) prior to providing the Goods for full payment of the Order; or
(b) upon delivery of the Goods or any time thereafter, for the Order or the balance of the Order outstanding, any Additional Charges and any amount not previously invoiced, or if no Quote was provided, for an amount representing the Supplier’s charge for the Goods supplied and for any Additional Charges.
7.4 The parties agree to comply with their obligations under the A New Tax System (Goods and Services Tax) Act 1999 and any applicable legislation governing GST.
7.5 For any invoice due but unpaid by the Customer, the Supplier may withhold the provision and delivery of Goods until such amounts are paid in full.
7.6 The Supplier may apply any payment received from the Customer to any amount owing by the Customer to the Supplier.
7.7 The Customer shall not withhold payment to the Supplier notwithstanding any default or alleged default by the Supplier of these Terms. Nothing in this paragraph aﬀects the Customer’s rights for any alleged failure of any statutory warranties under the Australian Consumer Law.
7.8 A statement in writing signed by an authorised oﬃcer of the Supplier setting out the moneys due or owing to the Supplier at the date of the statement shall be suﬃcient evidence of the amount so due or owing until the contrary is proven.
8. Additional Charges
8.1 The Supplier may require the Customer to pay Additional Charges for Loss incurred by the Supplier as a result of:
(a) reliance on inadequate or incorrect information or material provided by the Customer, or information or material supplied later than required by the Supplier in order for it to provide the Goods within the speciﬁed time frame (if any); or
(b) cancellation by the Customer of an Order where cancellation results in Loss to the Supplier, storage costs for Goods not collected from the Supplier within 2 weeks of the date on which the Goods are manufactured, fabricated, created or formed at the rate set out in the Quote.
9. Acceptance of Goods
9.1 If the Customer fails to advise the Supplier in writing of any fault in Goods or failure of Goods to accord with the Customer’s Order within 48 hours of delivery, the Customer is deemed to have accepted the Goods and accord with the Customer’s Order. Nothing in this paragraph aﬀects the Customer’s rights for any alleged failure of any statutory warranties under the Australian Consumer Law.
10. Title, Risk & Delivery
10.1 Risk in relation to any Goods passes to the Customer immediately on either:
(a) collection of the Goods from the Supplier’s premises by the Customer, its employees,
agent or contractors; or
(b) on delivery of the Goods to the Customer’s designated place of delivery by the Supplier or its agent.
10.2 The Supplier retains legal and equitable title in any Goods supplied to the Customer until payment in full. Until payment in full has been received, the following terms apply:
(a) Notwithstanding that title in the Goods remains with the Supplier until payment has been received in full, the Customer may deal with the Goods as it would in the ordinary course of the Customer’s business and/or sell the Goods (either as delivered by the Supplier or together with other goods or services) to a purchaser.
(b) Until Goods are sold or used by the Customer in the ordinary course of the Customer’s business, the Customer must:
i. keep the Goods safe and free from deterioration, destruction, loss or harm;
ii. store the Goods in such a way they are clearly identiﬁed as the property of the Supplier; and
iii. keep full and complete records of the physical location of the Goods and the ownership of the Goods by the Supplier.
(c) The Supplier is irrevocably entitled where full payment of the Goods has not been made by the Customer to inspect, recover and retake possession of such Goods and exercise any of its rights under common law, contract or statute.
(d) the Supplier and its agents are irrevocably authorised by the Customer to enter the Customer’s premises or vehicles to exercise its rights under clause (c) above.
10.3 The parties irrevocably agree that the retention of title rights constitutes the grant of a purchase money security interest ( “Security Interest”) by the Customer in favour of the Supplier in respect of all present and after acquired Goods supplied to the Customer by the Supplier under PPS Law.
10.4 If requested by the Supplier, the Customer must sign any documents, provide all necessary information and do anything else reasonably required by the Supplier to ensure that the Supplier’s Security Interest is a perfected security interest under the PPS Law.
10.5 The Customer will not enter into any security agreement that permits any other person to have or to register any security interest in respect of the Goods or any proceeds from the sale of the Goods until the Supplier has perfected its security interest.
11. Intellectual Property Rights
11.1 The Customer warrants that it owns all Intellectual Property Rights in respect to its Order for Goods, or otherwise has a licence to authorise the Supplier to reproduce or use all copyright works or other materials subject of Intellectual Property Rights supplied by the Customer to the Supplier for the Order.
11.2 The Customer indemniﬁes and agrees to keep indemniﬁed the Supplier against any Loss incurred by the Supplier in relation to any alleged breach of such Intellectual Property Rights for any material supplied by the Customer.
12. Agency and Assignment
12.1 The Customer acknowledges the Supplier may engage an agent to perform its obligations.
12.2 The Supplier has the right to assign and transfer to any person all or any of its title, estate, interest, beneﬁt, rights, duties and obligations arising in, under or from these Terms provided that the assignee agrees to assume any duties and obligations of the Supplier owed to the Customer under these Terms.
12.3 The Customer may not assign any of its obligations or rights under these Terms without the prior written consent of the Supplier.
13. Default by Customer
13.1 Each of the following occurrences constitutes an event of default:
(a) The Customer breaches or is alleged to have breached these Terms for any reason (including, but not limited to, defaulting on any payment due under these Terms) and fails to remedy that breach within 14 days of being given notice by the Supplier to do so;
(b) the Customer, being a natural person, commits an act of bankruptcy;
(c) the Customer, being a corporation, is subject to:
i. a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;
ii. a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of the Customer’s property and undertaking;
iii. the entering of a scheme of arrangement (other than for the purpose of restructuring);
iv. any assignment for the beneﬁt of creditors;
(d) the Customer purports to assign its rights under these Terms without the Supplier’s prior written consent;
(e) the Customer ceases or threatens to cease conduct of its business in the normal manner.
13.2 If an event of default occurs (except where payment in full has been received by the Supplier) the Supplier may:
(a) terminate these Terms;
(b) terminate any or all Orders and credit arrangements (if any) with the Customer;
(c) refuse to deliver Goods;
(d) pursuant to clause 10.2(c), repossess and re-sell any Goods delivered to the Customer,
(e) retain (where applicable) all money paid on account of Goods or otherwise.
13.3 In addition to any action permitted to be taken by the Supplier under this clause, on the occurrence of an event of default all invoices will become immediately due and payable.
14. Privacy and Data
14.2 Any personal information that the Supplier may hold (if any) will be held in accordance with all Privacy Laws and regulations, including but not limited to the Privacy Act 1988 (Cth).
15. Exclusions and limitation of liability
15.1 The Customer expressly agrees that use of the Goods is at the Customer’s risk. To the full extent allowed by law, the Supplier’s liability for breach of any term implied into these Terms by any law is excluded.
15.2 All information, speciﬁcations and samples provided by the Supplier in relation to the Goods are approximations only and, subject to any warranties under the Australian Consumer Law, small deviations or slight variations which are not material and do not aﬀect the Customer’s use of the Goods will not entitle the Customer to reject the Goods upon delivery, or to make any claim in respect of them.
15.3 The Supplier gives no warranty in relation to the Goods provided or supplied (subject to any statutory warranties under the Australian Consumer laws. The Supplier shall not be liable or responsible to the Customer or any other person for any loss, damages, costs, expenses or other claims (including consequential loss or damages, loss of proﬁts or loss of revenues) as a result of any defect, deﬁciency or discrepancy in the Goods including their form, content timeliness of delivery, failure of performance, error, omission, defect.
15.4 Any advice, recommendation, information, assistance or service given by the Supplier in relation to Goods is given in good faith and 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 Supplier does not accept any liability or responsibility for any Loss suﬀered as a result of the Customer’s reliance on such advice, recommendation, information, assistance or service.
15.5 To the fullest extent permissible at law, the Supplier is not liable for any direct, indirect, 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 Goods, or otherwise arising out of the provision of Goods, whether based on Terms, negligence, strict liability or otherwise.
15.6 The Customer acknowledges that the Goods are not for personal, domestic or household purposes and where liability for breach of any such warranty may be limited the Supplier’s liability (if any) arising from any breach of those warranties is limited with respect to the supply of Goods, to the replacement or repair of the Goods or the costs of resupply or replacement of the Goods.
16.1 The Customer indemniﬁes and keeps indemniﬁed the Supplier, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Customer) against the Supplier or, for which the Supplier is liable, in connection with any Loss arising from or incidental to the provision of Goods or any Order or the subject matter of these Terms including, but not limited to any legal costs incurred by the Supplier in relation to meeting any claim or demand or any party/party legal casts for which the Supplier is liable in connection with any such claim or demand. This provision remains in force after the termination or expiry of these Terms.
17. Force majeure
17.1 If circumstances beyond the Supplier’s control prevent or hinder its provision of the Goods the Supplier is free from any obligation to provide the Goods while those circumstances continue. The Supplier may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
17.2 Circumstances beyond the Supplier’s control include, but are not limited to, unavailability of materials or components, Government enforced lock down due to any health crisis or pandemic, strikes, lockouts, riots, natural disasters, ﬁre, war, acts of God, Government decrees, proclamations or orders, transport diﬃculties and failures or malfunctions of computers or other information technology systems.
18.1 These Terms are governed by the laws of Victoria and each party irrevocably submits to the non-exclusive jurisdiction of the courts of such state and supersede all oral and written negotiations and communications by and on behalf of either of the parties.
18.3 The Customer warrants that it has not relied on any warranty, representation or statement, whether oral or written, made by the Supplier or any of its employees or agents relating to or in connection with the subject matter of these Terms.
18.4 If any provision of these Terms at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and eﬀect.
18.5 A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.