Terms & Conditions
In this document (“Terms and Conditions of Sale”):
a) “Contract” means the contract formed between the Seller and the Buyer through an Order accepted by an Order Confirmation.
b) “Quotation” means a written offer by the Seller to supply a specified product to the Buyer.
c) “Buyer” means the person placing the Order with the Seller.
d) “Goods” means any goods, products, materials or services to be supplied by the Seller.
e) “Seller” means Abbe Corrugated Pty Ltd ACN 052 244 443.
f) “Order” means an offer to purchase made by the Buyer either verbally or in writing.
g) “Order Confirmation” means written confirmation of the receipt of the order and a request for confirmation by the Buyer of the product quantity, price and specifications.
h) “Application” means the application by the Buyer to the Seller for commercial credit.
(a) Written quotations will be provided for all new orders.
(b) All quotations will be accompanied by and subject to these Terms and Conditions of Sale.
(c)Any Application will be accompanied by and subject to these Terms and Conditions of Sale.
(a) An Order is accepted when the Buyer receives from the Seller an Order Confirmation in writing or if writing is not received, acknowledgement verbally or delivery, whichever first occurs.
(b) When an Order is accepted by an Order Confirmation the Contract will be wholly documented by (in descending order of precedence) any specific terms agreed in writing, the Quotation, Order Confirmation and these Terms and Conditions of Sale.
(c) Previous dealings between the Seller and the Buyer shall not have any effect on the Contract.
(d) Trade custom and/or trade usage is superseded by the Contract and shall not be applicable in the interpretation of the Contract.
(e) A Contract constitutes the entire agreement between the Seller and the Buyer with respect to the Goods supplied under the Contract.All prior negotiations, proposals and correspondence are superseded by that Contract and these Terms and Conditions of Sale will in all circumstances prevail over the Buyer’s terms and conditions of purchase (if any).
(f) The person placing the Order with the Seller and the person who the Seller provides goods and services to is authorised by the Buyer to contract with the Seller. Anyone who places an order and anyone who goods are provided by the Seller and/or any person who the Seller provides goods and/or services is authorised by the Buyer to receive such goods.
(a) The Seller will make all reasonable efforts to have the Goods delivered to the Buyer or his designated agent on the date agreed between the parties, but the Seller shall not be liable for any failure to deliver or delay in delivery for any reason.
(b) Delivery shall be deemed to have taken place at the time of physical taking of the Goods by the Buyer or by a carrier, whether engaged by the Seller or by the Buyer.
(c) The Seller will make all reasonable efforts to have the exact quantity ordered by the Buyer delivered to the Buyer but the Buyer will accept
the delivery if the quantity delivered is within 10% of the quantity ordered.
(d) The Seller reserves the right to deliver the Goods in more than one instalment. Each instalment is deemed to be sold under a separate Contract.
(a) Where the Seller has granted the Buyer credit, payment for the Goods must be made in full (without any set off) and received by the Seller by the last business day of the month following the month of delivery unless otherwise identified by the Seller on any statement of account or invoice or Quotation or Order Confirmation.
(b) Payment is only received by the Seller when it receives cash or when the proceeds of other methods of payment are credited to the Seller’s bank account.
(c) The Seller reserves the right to charge interest at 12% per annum on or from the date of invoice if not paid by the due date.
(d) The Buyer is not entitled to set off any sum against the amount due to the Seller
(a) The legal and equitable title to the Goods will only be transferred from the Seller to the Buyer when the Buyer has met and paid all that is owed to the Seller on any account.
(b) The Buyer acknowledges that until the Buyer has met and paid all that is owed to the Seller on any account whatsoever, the Buyer holds the Goods as bailee for the Seller and that a fiduciary relationship exists between the Buyer and the Seller.
(c) Until the Seller receives full payment of all monies due to it from the Buyer, the Buyer shall keep the Goods separate and in good condition as a fiduciary of the Seller, clearly showing the Seller’s ownership of the Goods and, shall keep books recording the Seller’s ownership of the Goods and the Buyer’s sale or otherwise of them in accordance with paragraphs 6 (e) and 6 (f).
(d) If the Buyer defaults, in addition to clause 6(b), the Seller may take possession of the Goods wherever the Goods are located and the Buyer’s premises for that purpose.
(e) Despite paragraph 6 (a), the Buyer may sell as fiduciary agent for the Seller the Goods to a third party in the normal course of the Buyer’s business provided that where the Buyer is paid by that third party, the Buyer holds the proceeds of sale to the extent of the amount owing by the Buyer to the Seller at the time of receipt of such proceeds on trust for the Seller. The Buyer must keep those proceeds separate on trust for the Seller and not mix those proceeds with any other monies.
(f) If the Buyer uses the Goods in some manufacturing or construction process of its own or some third party, then the Buyer shall hold such part of the proceeds of such manufacturing or construction process as related to the Goods on trust for the Seller. Such part shall be deemed to equal in dollar terms the amount owing by the Buyer to the Seller at the time of the receipt of such proceeds. The Buyer must keep that part of the proceeds separate on trust for the Seller and not mix those proceeds with any other monies.
(g) That until the goods are paid for the Buyer grants to the Seller a charge over all the accounts of the Buyer including any real estate and grants to the Seller the right to lodge a Caveat over any real estate of which Buyeris the registered proprietor to secure all funds due and payable to the Seller.
Unless otherwise expressly agreed in writing the price of the goods shall be that price charged by the company at the date of delivery including the amount which the company is required to pay on account of any excise, or sales tax or any other sales taxes or charges which may be established or levied by any governmental authority (domestic or foreign) upon goods or any part thereof the manufacture, use sale or delivery thereof.
(a) The Seller may grant the Buyer credit upon the Terms and Conditions on the basis of the Application and such other documents and information as may be required by the Seller.
(b) Until the Seller grants the Buyer credit by notice in writing, the Sellerwill only supply Goods to the Buyer on the basis of cash prior to delivery.
(c) Any charges for artwork stereos and formes must be paid on delivery of the first order.
(d) The granting of credit does not oblige the Seller to extend any particular amount of credit to Buyer.
(e) The Buyer must notify the Seller in writing if there is any material change in the shareholding or ownership of the Buyer (if it is not listed on ASX).
(f) The Buyer will pay any cost and expenses incurred by Seller and others acting on Seller’s behalf in respect of anything arising from these terms or any dealing with Seller.
9. Force Majeure
The Seller is not liable for failure to perform the Contract to the extent and for so long as it’s performance is prevented or delayed because of circumstances outside the Sellers control, failure of the Seller's machinery, or failure of a supplier to the seller.
10. Warranties & Limitation of Liability
(a) The Seller warrants that the Goods supplied are of merchantable quality.
(b) The Seller's liability for breach of sub clause 10 (a) or a condition or warranty implied into this Contract by law including, without limitation, the Statutory Provisions (other than a warranty found under the Competition and Consumer Act 2010, Schedule 2, sections 51-59) is limited to any one of the following as determined by the Seller:-
(i) for goods, products or materials - the cost of replacement of the defective Goods as soon as reasonably practicable, the repair of the defective Goods or the repayment (or allowance) of the invoice price of the defective Goods; (ii) for services - to the provision of services again or payment of the cost of having relevant services provided again.
(c) The Buyer will examine the Goods for defects and shall notify the Seller of any defects in writing within 30 days of Delivery. If the Buyer does not notify the Seller within 30 days of Delivery, the Buyer shall be deemed to have accepted the Goods to be of merchantable quality and free of defects and agrees that the Buyer is prevented from subsequently pleading otherwise.
(d) To the extent the law permits, the Buyer agrees that the Seller is not liable to the Buyer (and any party claiming through the Buyer against the Seller or to any third party claiming directly against the Seller) for consequential, special or indirect loss or damage of any kind howsoever arising and whether caused by a breach of any of the warranties, terms, conditions or any other provisions of a Contract or from tort or otherwise related to a contract. Consequential, special or indirect losses will be taken to include but not limited to:- (i) any loss of income, profit, revenue or business opportunity;
(ii) any loss in the nature of overhead costs;
(iii) any loss of goodwill or reputation, including, without limitation, any loss of value of intellectual property and any damages, liquidated sums or penalties under any other agreement.
(e) The Seller’s obligations in the event of paragraph 10(b) applying do not include:
(i) The cost of removal of defective Goods;
(ii) The cost of installation of the replacement for the defective Goods;
(iii) Defects in Goods caused by improper use or maintenance of Goods or related components or normal wear and tear and damage.
(f) Save as otherwise might be provided by statute the Seller assumes no liability whatever for any technical advice, recommendation, information (whether contained in data sheets or otherwise) or assistance given, or the results obtained therefrom, all such advice being given and accepted at Buyer’s sole risk.
(g) The Seller assumes no liability whatsoever for Goods produced in accordance with artwork checked and authorised by the Buyer.
(h) In all cases where liability of the Seller has not been excluded, whether by these conditions, by statute, or by international convention or otherwise, the liability of the Seller whatsoever and howsoever arising, including but not limited to any liability attributable to negligence or breach of Contract on the part of the Seller, its servants or agents, is limited to:-
(i) Australian $100 or the value of the Goods the subject of the contract at the time the Goods were received by the Buyer whichever is lesser; or
(ii) In the case of a proven breach of an implied warranty provided by the Competition and Consumer Act 2010, as amended, the payment of the cost of having the services supplied again.
(i) Subject to clause 10(h) and for the purpose of clause 10(h), the value of the goods shall be calculated by reference to the invoice value of the goods.
(j) Subject to clause 10(h) and for the purpose of clause 10(h), if there be no invoice value for the goods, the compensation shall be calculated by reference to the value of such goods at the place and time when they were delivered to the Buyer or should have been so delivered. The value of the Goods shall be fixed according to the current market price, or, if there be no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality
(k) Seller is not liable for any Product or service to the extent that;
(i) procedures (however described) or with any materials which are provided or approved by or on behalf of the Buyer and;
(ii) are used, stored, handled or maintained incorrectly or inappropriately after delivery to the Buyer. The Buyer must ensure that all products and standards before use or on-sale. It is the Buyer’s sole responsibilityto ensure that materials, designs, drawings, specifications and procedures provided by or on behalf of the buyer to be used by Seller meeting any orders, are correct, appropriate and comply with all applicable laws, regulations and standards.
11. Defaulta) The Buyer will be in default if:
(i) The Buyer breaches any of the Terms and Conditions;
(ii) Payment for the Goods has not been received by the Seller by the due date of payment;
(iii) The Buyer being an individual commits an act of bankruptcy or becomes an insolvent under administration;
(iv) The Buyer being a body corporate becomes an externally administered body corporate;
(v) The Seller forms the opinion that the Buyer's credit worthiness or credit standing alters from that indicated in it’s Application.
b) If one of the events described in clause 11(a) occurs, the Seller may without notice to the Buyer do any one or more of the following:
(i) Treat the whole of the Contract and any other Contract with the Buyer as repudiated and sue for breach of contract.
(ii) Refuse to supply any Goods to the Buyer.
(iii) Claim the return of any Goods in the Buyer's possession where title has not passed to the Buyer.
(iv) Withdraw or vary any credit the Seller has provided to the Buyer.
(v) Make all monies owing by the Buyer to the Seller on any account immediately due and payable.
The Seller's failure at any time to insist on performance of any provision of these Terms and Conditions and/or of a Contract is not a waiver of the Seller's rights at any time later to insist on performance of that or any other provision.
13. Patents & Designs
(a) In consideration of the Seller accepting an order from the Buyer, the Buyer warrants that no patent, copyright trademark or design is infringed and the Buyer holds safe and indemnifies the Seller against all costs or expenses incurred by the Seller arising from any claim by a third party of infringement of their rights.
(b) All technical information, advice, know how, drawings, design and samples, including quotations given, are submitted by the Seller on the basis that they will remain the Seller’s property and shall be kept confidential by the Buyer who will not make any use of such items without the Seller’s consent in writing, and the Seller will be entitled to compensation for any unauthorised use of such information.
(c) Buyer agrees that all tooling, materials, industrial or intellectual property or the like used in the preparation for or production of any product or provision of any service will be and remain the property of Seller or its nominee despite any contribution by the Seller.
14. Cancellation of Order
The order cannot be cancelled except upon terms which will compensate the Seller for all work done and materials used or specially procured to the date of cancellation and expenses, including overheads and handling charges incurred to the date of cancellation or for any commitments made by the Seller.
The laws of the State of Victoria shall govern this Agreement and all disputes shall be heard in the State of Victoria. The parties submit to the non-exclusive jurisdiction of the Courts of Victoria.
The Buyer indemnified the Seller against any claim, loss, damage, liability, cost or expense that may be incurred or suffered by Seller arising from or in connection with any breach or default of the Buyer of these Terms, any related order or contract or the Competition & Consumer Act 2010(Cth)
17. Personal Property and Security Act 2009 (hereafter PPSA)
(a) The Buyer acknowledges that it grants the Seller a security interest in all present and after acquired Goods supplied by the Seller and their proceeds to secure all monies owing to the Seller now and in the future in respect of the supply of Goods. (b) The Buyer undertakes to provide any information that the Seller may reasonably require to enable the Seller to perfect and maintain the perfection of it’s security interest (including by registration of a financing statement). (c) The Buyer undertakes to immediately notify the Seller in writing of any changes in its name and/or any other change
in it’s details (including, but not limited to, changes in it’s address, facsimile number, trading name or business practice). (d) The Buyer waives it’s
right to receive a verification statement in respect of any financing statement and agree to the extent permitted by law that: (i) Where the Seller has rights in addition to, or existing separately from those in Chapter 4 of the PPSA, those rights will continue to apply and in particular, will not be limited by Part 4.3
in Chapter 4; and (ii) The rights of the Buyer as debtor under Sections 130, 132, 135 and 137 shall not apply to these terms and conditions. (e) The Buyer will pay all costs, expenses and other changes incurred, expended or payable by the Seller in relation to the filing of a financing statement or financing change statement in connection with the Terms and Conditions.
(f) The Buyer agrees that it will not allow security interests to be created or registered over the goods in priority to the security interest(s) held by the Seller.
(g) In the event that the Buyer defaults under these Terms and Conditions, the Seller may in accordance with clause 123 of the PPSA seize the Goods
and in accordance with clause 125 of the PPSA retain or dispose of the Goods. Divisions 3 and 4 under Chapter 4 of the PPSA, will provide the rights of the Seller in respect of retaining or disposing the Goods. (h) Goods means all goods the Seller supplies to you from time to time, provided that: (i) (but solely for the purpose of the application of the PPSA) where the goods supplied are the Buyer’s inventory, then all references to Goods in these Terms and Conditions shall in respect of those goods, be read as reference to inventory for so long as they are held as inventory; and (ii) where the goods supplied
are not, or are no longer held as, the Buyer’s inventory, then all references to Goods in these terms and conditions shall, in respect of those goods mean the goods described in any one or more of the relevant order form, packing slip or invoice (or it’s equivalent, whatever called) prepared by the Seller and relating to those goods, on the basis that each such order form, packing slip or invoice (or it’s equivalent) is deemed to be assented to by the Buyer, incorporated in, and form part of these Terms and Conditions, and unless the context requires otherwise, includes all proceeds of such Goods and any product or mass which the Goods subsequently become part of.
The Buyer agrees that Pallets remain the property of the Seller or it’s nominee at all times and the Buyer must promptly return all pallets and reusable packaging provided by Seller. The Buyer indemnifies Seller for the cost of hire and/or replacement of any pallets not returned within14 days or Seller's request. This clause does not apply to pallets that have been sold and invoiced to Buyer.
Any of these conditions may be varied in writing by the supplier at any time by notice to the purchaser and may be served by email.