1.1 “VKP” means RWE Packaging Pty Ltd & SDRR Pty Limited T/A Vinkem Packaging, its successors and assigns or any person acting on behalf of and with the authority of RWE Packaging Pty Ltd & SDRR Pty Limited T/A Vinkem Packaging.
1.2 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all Goods or Services supplied by VKP to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between VKP and the Customer in accordance with clause 4 below.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with VKP’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and VKP.
3. Change in Control
3.1 The Customer shall give VKP not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by VKP as a result of the Customer’s failure to comply with this clause.
4. Price and Payment
4.1 At VKP’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by VKP to the Customer; or
(b) VKP’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 VKP reserves the right to change the Price if a variation to VKP’s quotation is requested. Any variation from the plan of scheduled Services or specifications of the Goods (including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to VKP in the cost of taxes, levies, materials and labour) will be charged for on the basis of VKP’s quotation and will be shown as variations on the invoice.
4.3 At VKP’s sole discretion a non-refundable deposit may be required.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by VKP, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of instalments/progress payments in accordance with VKP’s payment schedule;
(d) thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Customer by VKP.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two percent (2%) of the Price), or by any other method as agreed to between the Customer and VKP.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to VKP an amount equal to any GST VKP must pay for any supply by VKP under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5. Delivery of Goods
5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at VKP’s address; or
(b) VKP (or VKP’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
5.2 At VKP’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
5.3 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then VKP shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.4 VKP may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.5 Any time or date given by VKP to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and VKP will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
6.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, VKP is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by VKP is sufficient evidence of VKP’s rights to receive the insurance proceeds without the need for any person dealing with VKP to make further enquiries.
6.3 If the Customer requests VKP to leave Goods outside VKP’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
7. Printing Risk
7.1 When quotations are based on specifications, roughs, layouts, samples and dummies or printed, typewritten or other good copy, any extra work or costs caused by any variation by the Customer of his original instructions or by the manuscript copy being, in VKP’s opinion, poorly prepared or by the Customer’s requirements being different from those originally submitted or described, then the cost of such variations may be charged to the Customer and shown as extras on the invoice.
7.2 All work carried out whether experimentally or otherwise at the Customer’s request will be charged to the Customer.
7.3 Any tabulated work and/or foreign language included in the job but not contained in the manuscript originally submitted for the purpose of estimating may be charged to the Customer and shown as extras on the invoice.
7.4 Unless otherwise agreed, the Customer shall bear the cost of fonts, or colour proofs, or artwork, specially bought at its request for Services.
7.5 VKP shall not be held liable for inks wearing through general wear and tear.
7.6 Where the Customer supplied materials, adequate quantities shall be supplied to cover spoilage. Sheets and other materials shall not be counted and checked when received unless requested by the Customer in writing. An additional charge may be made by VKP in respect of such counting and checking requested by the Customer.
7.7 In the case of property and materials left with VKP without specific instructions, VKP shall be free to dispose of them at the end of twelve months after receiving them and to accept and retain any proceeds gained from such disposal to cover VKP’s costs in holding and handling such items.
7.8 Where materials or equipment are supplied by the Customer for the provision of Services VKP shall accept no liability for imperfect work caused by defects in, or the unsuitability of, such materials or equipment for the Services.
8. Proof Reading
8.1 Where VKP is requested to design or commission sign writing or printing services using measurements or dimensions supplied by the Customer or their representatives, and these measurements are found to be incorrect the Customer is liable for the costs for the re-creation of the sign writing or printing as well as the original production costs.
8.2 Whilst every care is taken by VKP to carry out the instructions of the Customer, it is the Customer’s responsibility to undertake a final proof reading of the Goods. VKP shall be under no liability whatsoever for any errors not corrected by the Customer in the final proof reading. Should the Customer’s alterations require additional proofs this may be invoiced as an extra.
8.3 When style, type or layout is left to VKP’s judgment, then the Customer makes further alterations to the copy this may be invoiced as an extra.
8.4 While every effort will be taken by VKP to match colours, VKP will take no responsibility for any variation due to substrates, half tones and/or detailed graphics between sale samples (including but not limited to virtual or physical samples) and the final product.
9. Accuracy of Customers Plans
9.1 VKP shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, VKP accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
10. Accuracy of Measurements for Orders
10.1 In the event the Customer gives information relating to measurements and quantities of the Goods required to complete the services, it is the Customer’s responsibility to verify the accuracy of the measurements and quantities, before the Customer or VKP places an order based on these measurements and quantities. VKP accepts no responsibility for any loss, damages, or costs however resulting from the Customer’s failure to comply with this clause.
11.1 VKP and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid VKP all amounts owing to VKP; and
(b) the Customer has met all of its other obligations to VKP.
11.2 Receipt by VKP of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
11.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with clause 11.1 that the Customer is only a bailee of the Goods and must return the Goods to VKP on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for VKP and must pay to VKP the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for VKP and must pay or deliver the proceeds to VKP on demand.
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of VKP and must sell, dispose of or return the resulting product to VKP as it so directs.
(e) the Customer irrevocably authorises VKP to enter any premises where VKP believes the Goods are kept and recover possession of the Goods.
(f) VKP may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of VKP.
(h) VKP may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
12. Personal Property Securities Act 2009 (“PPSA”)
12.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
12.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by VKP to the Customer.
12.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which VKP may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 12.3(a)(i) or 12.3(a)(ii);
(b) indemnify, and upon demand reimburse, VKP for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of VKP;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of VKP;
(e) immediately advise VKP of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
12.4 VKP and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
12.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
12.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
12.7 Unless otherwise agreed to in writing by VKP, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
12.8 The Customer must unconditionally ratify any actions taken by VKP under clauses 12.3 to 12.5.
12.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
13. Security and Charge
13.1 In consideration of VKP agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
13.2 The Customer indemnifies VKP from and against all VKP’s costs and disbursements including legal costs on a solicitor and own Customer basis incurred in exercising VKP’s rights under this clause.
13.3 The Customer irrevocably appoints VKP and each director of VKP as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Customer’s behalf.
14. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
14.1 The Customer must inspect the Goods on delivery and must within seven (7) days of delivery notify VKP in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow VKP to inspect the Goods.
14.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
14.3 VKP acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
14.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, VKP makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. VKP’s liability in respect of these warranties is limited to the fullest extent permitted by law.
14.5 If the Customer is a consumer within the meaning of the CCA, VKP’s liability is limited to the extent permitted by section 64A of Schedule 2.
14.6 If VKP is required to replace the Goods under this clause or the CCA, but is unable to do so, VKP may refund any money the Customer has paid for the Goods.
14.7 If the Customer is not a consumer within the meaning of the CCA, VKP’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by VKP at VKP’s sole discretion;
(b) limited to any warranty to which VKP is entitled, if VKP did not manufacture the Goods;
(c) otherwise negated absolutely.
14.8 Subject to this clause 14, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 14.1; and
(b) VKP has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
14.9 Notwithstanding clauses 14.1 to 14.8 but subject to the CCA, VKP shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by VKP;
(e) fair wear and tear, any accident, or act of God.
14.10 Notwithstanding anything contained in this clause if VKP is required by a law to accept a return then VKP will only accept a return on the conditions imposed by that law.
15. Intellectual Property
15.1 Where VKP has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of VKP.
15.2 The Customer warrants that all designs, specifications or instructions given to VKP will not cause VKP to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify VKP against any action taken by a third party against VKP in respect of any such infringement.
15.3 The Customer agrees that VKP may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which VKP has created for the Customer.
15.4 The Customer shall indemnify VKP against any claims by third parties for patent, trademark, design or copyright infringement, directly or indirectly arising out of design, workmanship, material, construction, or use of the Goods or any other deficiency therein. Where the Customer has supplied drawings, sketches, files or logo’s to VKP, the Customer warrants that the drawings, sketches, files or logo’s do not breach any patent, trademark, design or copyright, and the Customer agrees to indemnify VKP against any action taken by a third party against VKP.
15.5 Where the Customer provides VKP any materials including, sketches, photographs, drawings, plans or concepts upon which VKP is to base the work, the Customer shall indemnify and keep indemnified VKP at all times against all actions, proceedings, claims, demands, liabilities, either express or implied, and all costs, losses, losses of profit, damages and expenses whatsoever which may be taken against VKP or incurred or become payable by VKP resulting or arising from any claim or infringement of any patent, registered design, trademark, copyright or any other property interest of a third party which may result out of the use by VKP of the materials.
16. Default and Consequences of Default
16.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at VKP’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Customer owes VKP any money the Customer shall indemnify VKP from and against all costs and disbursements incurred by VKP in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own Customer basis, VKP’s collection agency costs, and bank dishonour fees).
16.3 Without prejudice to any other remedies VKP may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions VKP may suspend or terminate the supply of Goods to the Customer. VKP will not be liable to the Customer for any loss or damage the Customer suffers because VKP has exercised its rights under this clause.
16.4 Without prejudice to VKP’s other remedies at law VKP shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to VKP shall, whether or not due for payment, become immediately payable if:
(a) any money payable to VKP becomes overdue, or in VKP’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
17. Dispute Resolution
17.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
18.1 VKP may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice VKP shall repay to the Customer any money paid by the Customer for the Goods. VKP shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by VKP as a direct result of the cancellation (including, but not limited to, any loss of profits).
18.3 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
19. Privacy Act 1988
19.1 The Customer agrees for VKP to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by VKP.
19.2 The Customer agrees that VKP may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer.
The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
19.3 The Customer consents to VKP being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
19.4 The Customer agrees that personal credit information provided may be used and retained by VKP for the following purposes (and for other purposes as shall be agreed between the Customer and VKP or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by VKP, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
19.5 VKP may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
19.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Customer’s application for credit or commercial credit and the amount requested;
(c) advice that VKP is a current credit provider to the Customer;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of VKP, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations);
(g) advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Customer by VKP has been paid or otherwise discharged.
20.1 The failure by VKP to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect VKP’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state of New South Wales in which VKP has its principal place of business, and are subject to the jurisdiction of the courts of Maitland in that state.
20.3 Subject to clause 14 VKP shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by VKP of these terms and conditions (alternatively VKP’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
20.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by VKP nor to withhold payment of any invoice because part of that invoice is in dispute.
20.5 VKP may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
20.6 The Customer agrees that VKP may amend these terms and conditions at any time. If VKP makes a change to these terms and conditions, then that change will take effect from the date on which VKP notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for VKP to provide Goods to the Customer.
20.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
20.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
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