TERMS AND CONDITIONS OF SALE
“Company” is Maxpak Australasia Pty Ltd trading under its own name or the trading name shown on the face of this invoice.
“Contract” is the contract for the sale of the Goods formed by the acceptance of the order from the Customer.
“Goods” are the items the subject of the sale under the Contract specified on the face of this invoice or where the context so admits means part of them.
“Terms” means these terms and conditions of sale as amended from time to time.
1.1 These are the Terms which apply to the sale of Goods and shall prevail unless agreed to the contrary in writing by the Company. However if any of these terms and conditions contravene or are prohibited by any law or state for the time being in force or which may come into force including (but not limited to) the Competition and Consumer Act 2010 (Cth) such other terms and conditions shall continue in full force and effect.
1.2 The Customer acknowledges and agrees:
(a) that these Terms may be amended from time to time by the Company without notice to the Customer; and
(b) to keep itself informed of any amendments to the Terms as described on the Company’s website.
2. TERMS OF PAYMENT
2.1 Payment terms shall be as agreed and payable on or before the date indicated on the Company’s invoices. Statements of accounts will not be issued. The Customer shall be liable for any legal costs, collection costs, dishonoured cheque fees etc. incurred by the Company as consequence of default by the Customer. Should the Customer delay or default in respect of any payment due hereunder, the Company shall have the right to charge interest on all sums owed for payment to the Company.
2.2 Interest at the rate of 2% per month or at the maximum rate of interest permitted by law from time to time (whichever is the greater) shall be payable by the Customer on all principal amounts due and owing to the Company, such interest to be calculated on the daily balance and to be payable on demand. The Customer’s obligation to pay the outstanding principal amount on or before the date it becomes due for payment is not affected by this Condition.
2.3 All losses, expenses, interest and costs including (but not limited to) legal fees (on a solicitor/client basis) consequent upon the Customer’s failure to pay on the due date shall be recoverable from the Customer by the Company as liquidated damages.
2.4 The Company reserves the right to refuse to supply the Customer where any payment for Goods supplied by the Company remains outstanding.
3. CLAIMS, RETURNS AND ALLOWANCES
3.1 Any claim against the Company must be made within 7 days of delivery of the Goods. All claims must refer to the official invoice number, date and state the reason for the claim. All claims shall be determined at the sole discretion of the Company.
3.2 All freight charges for the return of Goods by the Customer shall be prepaid by the Customer.
3.3 Goods returned for credit will only be accepted if received in original condition and may be subject to restocking charges. The following types of Goods cannot be returned for credit under any circumstances:-
(a) Any Goods specifically made or purchased for the Customer.
(b) Any Goods damaged or altered in any way by the Customer.
(c) Any Goods that were delivered correctly and are not considered to be faulty.
3.4 Delivery of the Goods returned for credit does not signify agreement to issue a credit note. A credit note will be issued at the Company’s discretion and only after the Goods have been inspected and found to be acceptable in the opinion of the Company.
3.5 Without prejudice to Condition 3.4, the Company will accept no responsibility whatsoever for any loss arising as a result of the Company’s failure to give credit or its delay in doing so.
4.1 Unless expressly agreed to the contrary by the Company in writing the provisions and tolerances contained in the standard specification to which the Goods are manufactured by the Company or its suppliers will apply to all orders accepted.
4.2 Unless the Company otherwise agrees in writing, at the request of the Customer, delivery of the Goods shall take place at the Company’s premises. In the event that the Company agrees to deliver the Goods to the Customer at the Customer’s address or to some other place nominated by the Customer, the Company shall not be under any liability whether in tort or contract or otherwise for any loss or damage to or deterioration of the Goods or for misdelivery or failure to deliver or delay in delivery or for any other loss or damage suffered by the Customer whether caused by the negligence or wilful misconduct of the Company or by another cause whatsoever including (but not limited to) any act of God, flood, fire, lightning, storm, tempest, rain, enemy hostilities, strikes, lock outs or other industrial disturbances, riots, laws, rules or regulations, inability to obtain equipment or material or any other cause outside the control of the Company.
4.3 The Company shall be under no liability to the Customer for any loss including (but not limited to) loss of profits and consequential loss or for damage to persons or property or for death or injury caused by any act or omission including (but not limited to) negligent acts or omissions of the Company or the Company’s employees or agents.
4.4 The Customer shall indemnify the Company against any claims made against the Company by any third party in respect of any such loss, damage, death or injury as is set out in paragraph 4.3 of these terms and conditions; the Customer further agrees to indemnify the Company against all losses and expenses which the Company may suffer or incur owing to the failure of the Customer to fully observe its obligations under these Conditions of Sale.
4.5 Save as herein provided:-
(a) The Company makes no express warranty in respect of the Goods.
(b) The Company shall not be liable in respect of any warranty, condition, representation or statement concerning the Goods.
(c) The Company’s liability hereunder (if any) shall be limited to the value of the Goods, the subject of this Contract.
(d) All warranties and conditions implied at common law or under statute are expressly excluded from the Contract unless such exclusion would be illegal or void.
(e) The Company does not warrant that the Goods are of a description, quality and character suitable for the purpose for which they are purchased by the Customer.
5. TITLE AND SECURITY INTEREST IN THE GOODS
5.1 In this clause 5, the following definitions apply:
(a) PPSA means the Personal Property Securities Act 2009 (Cth);
(b) expressions that are defined in the PPSA and which are italicised in this clause 5, have the same meaning as in the PPSA.
5.2 Legal and beneficial ownership of the Goods is retained by the Company and the Customer shall hold the Goods as the Company’s fiduciary agent and bailee until payment by the Customer in full of all monies howsoever owing or payable on any account by the Customer to the Company are paid in full. Until such time as all monies howsoever owing or payable by the Customer to the Company have been paid for in full, the Customer is at liberty to sell the Goods in the ordinary course of business as agent for the Company and shall account to the Company for the proceeds thereof and hold such proceeds separately on trust for the Company.
5.3 The Customer acknowledges and agrees that until all monies howsoever owing or payable by the Customer to the Company on any account are paid to the Company:
(a) the Customer shall have the right to use the Goods for the purpose for which they are sold;
(b) the Customer grants the Company a security interest in the Goods and any proceeds that secures all monies howsoever owing or payable by the Customer to the Company;
(c) the Company’s security interest in the Goods and any proceeds is a purchase money security interest (or “PMSI”) under the PPSA to the extent that it secures payment of any amounts owing in relation to the Goods;
(d) the Company’s security interest in the Goods extends to all proceeds and any accession to the fullest extent permitted by the PPSA;
(e) the Customer and/or any administrator so appointed to the Customer shall keep the proceeds from the sale of the Goods separate and on trust for the Company until payment has been made to the Company for all Goods supplied to the Customer;
(f) the Company may apply any monies received from the Customer first to satisfy any portion of debt that is unsecured, second to satisfy any portion of debt that is secured but not by a PMSI and third to satisfy any portion of debt that is secured by a PMSI, or in any other manner the Company sees fit;
(g) the Customer is to provide all information and execute all documents necessary to enable the Company to register and perfect its security interest in the Goods under the PPSA and to promptly inform the Company in writing of any change of name of the Customer or of any other details that appear on the register;
(h) the Customer shall keep the Company’s Goods separately stored and readily identifiable;
(i) the Customer will not grant or seek to grant any security interest in the Goods adverse to the interest of the Company; and
(j) the Company’s security interest attaches to the Goods when the Customer attains possession of the Goods.
5.4 The Company may enforce its rights under clause 5.5 if:
(a) payment is not made in accordance with these Terms;
(b) any trade or credit arrangement in existence between the Company and the Customer is breached by the Customer;
(c) the Customer enters into any composition, assignment or arrangement with creditors; or
(d) there is appointed under any Act or instrument or by order of any Court, a manager or an administrator or a trustee or a receiver or a receiver and manager or a provisional liquidator, or a liquidator or an official manager in relation to any part of the Customer’s undertakings, assets or property.
5.5 The Company shall have the right (without prejudice to any other rights and remedies it may have) to recover, detach, remove or otherwise retake possession of the Goods and to resell the Goods and the Company, its employees, agents or contractors are hereby irrevocably authorized to enter any premises occupied by the Customer in which the Goods may from time to time be located without committing a trespass. The Customer appoints the Company as its agent to enter any premises not owned by the Customer in which any of the Goods may be located from time to time. The Company will have no obligation to make good any damage caused by such search, recovery, detachment or removal of Goods. The Customer indemnifies and keeps the Company indemnified from and against any costs, claims, damages or losses expended or suffered by the Company in recovering the Goods (including legal costs on a full indemnity basis). Subject to clauses 5.6 and 5.7, the Company’s rights under this clause 5.5 are in addition to and not in derogation from its rights under Chapter 4 of the PPSA, save to the extent that there is any inconsistency between the Company’s rights under this clause 5.5 and Chapter 4 of the PPSA, this clause 5.5 prevails.
5.6 If Chapter 4 of the PPSA would otherwise apply to enforcement of the Company’s security interest, the Customer agrees that the following provisions of the PPSA will not apply:
(a) section 95 (notice of removal of accession to the extent that it requires Company to give notice to the Customer);
(b) section 121(4) (enforcement of liquid assets – notice to the Customer);
(c) section 125 (obligation to dispose of or retain collateral);
(d) section 129 (disposal by purchase);
(e) section 130 (notice of disposal, to the extent that it requires Company to give a notice to the Customer);
(f) section 132(3)(d) (contents of statement of account after disposal);
(g) section 132(4) (statement of account if no disposal);
(h) section 135 (notice of retention);
(i) section 142 (redemption of collateral); and
(j) section 143 (reinstatement of security agreement).
5.7 The Customer waives its right to receive any notice under the PPSA (including notice of a verification statement after registration or variation of a registration) unless a requirement for notice cannot be excluded under the PPSA
6. RISK & INSURANCE
6.1 Notwithstanding clause 5.2, the Goods shall be at the sole risk of the Customer from the time the Goods are delivered or from the time the Goods leave the Company’s premises (whichever is the first to occur) notwithstanding that title of the Goods may not have passed to the Customer. It shall be the Customer’s obligation to effect full insurance upon the Goods from such time as the Goods are at the Customer’s risk.
7. PRICE INCREASE
7.1 The Company reserves the right to increase the price of Goods at any time and without prior notification.
8. LEGAL CONSTRUCTION
8.1 The Contract shall be governed by the laws in force in the State of Victoria. Any proceedings between the Company and the Customer shall be commenced in Victoria.
8.2 The signing of a manifest or delivery docket for Goods received, notwithstanding anything that may be stated to the contrary by the Customer, shall constitute acceptance of these Terms.