Terms and Conditions

Ball Australia Pty Ltd     ACN 051399341

Terms and Conditions of  Sale

These Terms constitute the entire agreement about the Supplier’s supply of the Goods to the Customer and supersede all prior understandings, arrangements and agreements. Without limiting the ways in which the Customer may be bound by these Terms, the Customer will be deemed to be bound by these Terms upon placing an order for Goods. Words with special meanings are defined in clause 1. A reference in these Terms to: the singular includes the plural and vice versa; and the word “including” means “including, but not limited to,” and the word “includes” means “includes, without limitation”.

1.          Definitions

In these Terms:

“Customer” means the customer to whom these Terms are provided;

“Goods” means the products supplied to the Customer by the Supplier as described in the Supplier’s invoice and includes, where applicable, the Consignment Stock;

“GST” includes any value added tax, consumption tax or goods and services tax, including the tax payable under A New Tax System (Goods  and Services Tax) Act  I 999 (as amended from time to  time);

“Supplier” means Ball Australia Pty Ltd (ACN 051399341); and “Terms” means these terms and conditions.

2.          Orders

(a)           The Customer may place an order for Goods directly with the Supplier by telephone, facsimile or email.

(b)           The Supplier may accept or reject at its discretion any order.

(c)           The Supplier will not be bound by any terms attaching to the Customer’s order which are imposed by the Customer, unless those terms are expressly agreed to in writing by an authorised representative of the Supplier.

(d)           Unless otherwise agreed by the Supplier in writing not later than 7 days before the estimated date of seed order shipment by the Supplier or 7 days before the sowing of seeds for plug orders, the Customer may not cancel an order which has been accepted by the Supplier.

3.          Price of Goods

The price of the Goods will be the Supplier’s quoted price at the time the order is placed by the Customer. The Supplier may change any quoted prices to take into account any changes in manufacturing costs at any time and without notice to the Customer prior to accepting the Customer’s order.

4.          Payment terms

(a)           Subject to clauses 4(b), payment for the Goods must be remitted to the Supplier within 30 days of the date of invoice. Payment must be made by cash, cheque, bank transfer or credit transfer to the Supplier. The Customer must not set-off any amount owing by the Supplier against any amount in an invoice disputed by the Customer.

(b)           If any amount payable by the Customer under these Terms is not paid by the due date for payment, the Customer must pay to the Supplier interest on such amount at the annual rate of 2% above the prevailing base lending rate quoted by NAB Bank at the date the amount becomes due. Interest will accrue daily from the due date of payment until the date such amount and all accrued interest is received by the Supplier.

(c)           If the Customer fails to make payment in accordance with this clause 4 after demand for payment by the Supplier, the Supplier may, without prejudice to any of its other rights under these Terms or at law:

(i)             defer or cancel the shipment of any outstanding orders already placed by the Customer and accepted by the Supplier but yet to be shipped to Customer; and/or

(ii)            require all amounts owing by the Customer to the Supplier on any account to be paid immediately to the Supplier; and/or

(iii)           require the Customer to make payment in advance in respect of any further orders (if the Customer normally makes payment by other means); and/or

(iv)          cease to supply Goods to the Customer;

5.          Tax and charges

(a)           Unless otherwise agreed in writing, all prices quoted for Goods are exclusive of all taxes (including GST), handling, delivery and Suppliers’ charges, and any other charge, duty or impost.

(b)           The Customer must pay to the Supplier in full, on demand, any tax (other than inco1ne tax) payable under or in connection with these Terms, including any GST, customs duty, sales tax, excise duty, sta1np duty, other duty, governmental charge, fee, levy or impost, together with any fine, penalty or interest payable because of a default by the Customer.

(c)           Any amount paid to the Supplier by the Customer under clause 4 must leave in the hands of the Supplier, following the payment of any relevant tax or other amount, the same amount, whether the tax or other amount is payable or not.

6.          Delivery

(a)           Unless otherwise agreed, the Supplier will at the Customer’s expense, arrange delivery.

(b)           Delivery times advised to the Customer are estimates only and the Supplier will not be liable for any loss, damage or delay suffered or incurred by the Customer or its customers arising from late or non-delivery of the Goods. Late or part delivery of the Goods will not entitle the Customer to reject delivery of the Goods.

(c)           Deliveries at any time are subject to availability of stock, and the Supplier will not be liable for any loss, damage or delay suffered or incurred by the Customer or its customers arising from unavailability of the Goods.

(d)           The Supplier is not liable for any loss or damage to the Goods in transit.

(e)           The Supplier may make part deliveries of any order, and each part delivery will constitute a separate supply of the Goods on these Terms.

(f)     Unless otherwise agreed, the Customer will be responsible for any packing costs. However, the Supplier is entitled to charge the Customer for any returnable containers and the Customer will be responsible for returning those containers and cartage paid to the Supplier’s premises within 60 days after their delivery to the Customer.

7.          Title and risk

(a)           Goods supplied by the Supplier to the Customer will be at the Customer’s risk immediately upon the Goods leaving the Supplier’s premises or being picked up for delivery at the Supplier’s premises. Risk in the Goods will remain with the Customer at all times unless the Supplier retakes possession of the Goods under these Terms.

(b)           The Customer must at its cost insure the Goods against all loss and damage and keep such insurance current until title to and all  property in the Goods has passed to the Customer under these Terms.

(c)           Title to and all property in the Goods will not pass to the Customer until full payment in cleared funds is received by the Supplier. Monies received in payment shall be applied against the amounts owed to the Supplier by the Customer in the date order in which they were incurred, with the oldest satisfied first.

(d)           Until all Goods have been paid for in full:

(i)          The Customer must store the Goods separately and in a manner which clearly indicates that they are the property of the Supplier;

(ii)         the Customer may sell the Goods in the ordinary course of its business as a fiduciary of the Supplier, provided that the Customer keeps separate records of sales of the Goods and accounts to the Supplier for the proceeds of all sales (including any proceeds from insurance claims), which pending payment to the Supplier must be kept in a separate bank account;

(iii)           the Customer may not assign its right, title or interest in any book debts arising in its favour in respect of its sale of the Goods; and

(iv)         where the Goods are used by the Customer in any manufacturing process of its own or of a third party, the Customer must hold such part of the proceeds of such manufacturing process as relates to the Goods in trust for the Supplier. Such part shall be deemed to equal in dollar terms the amount owing by the Customer to the Supplier at the time of the receipt of such proceeds.

(e)           In default of full payment, the Customer authorises the Supplier, at any time, to enter onto any premises where the Goods are located, without liability for trespass, to enable the Supplier to:

(i)             inspect the Goods; and/or

(ii)            repossess the Goods,

and the Customer must provide the Supplier with access to all records relating to the Goods or the resale of the Goods. The Supplier’s right to enter is without prejudice to any other rights of the Supplier deriving fro1n these Terms or at law.

8.          Returns and other requests for  credit

(a)           Subject to clause 8(b) and unless otherwise agreed by the Supplier, Goods will not be accepted for return by the Supplier unless the Goods are:

(i)     defective within the meaning of Part VA of the Trade Practices Act  1974 (Cth) (“Defective Goods”);  and

(ii)  accompanied by a valid returns authority signed by the Supplier (“Returns Authority”).

(b)     Customers must notify the Supplier of any Defective Goods within 24 hours after the Customer took delivery of the goods.

(c)    All freight costs, including insurance and delivery costs, incurred in connection with the return of Defective Goods will be borne by the Customer.

(d)    The Supplier will issue a credit adjustment note to the Customer in respect of the returned Defective Goods only after a physical      examination of the Goods and verification of the Returns Authority has been conducted to its satisfaction.

(e)    Claims for short delivery and incorrect Goods supplied must be made to the Supplier within 24 hours of the Customer receiving the goods.

(f)     Claims for non-delivery and pricing or calculation errors must be made to the Supplier within 7 days of the invoice date.

(g)    The provisions of this clause 8 do not extend to any Goods which have been added to, or varied by, any person other than the Supplier.

9.          Warranty

(a)           The performance of the Goods and their suitability for the Customer’s purpose will depend on various factors including the particular conditions under which they are used, the material being printed and the intended use of the final product in which they are used. The Customer acknowledges that it has satisfied itself that the Goods meet its requirements.

(b)           To the full extent permitted by law, the Supplier expressly excludes all warranties, conditions and representations, whether express or implied, in relation to the Goods (including as to performance, quality or fitness for use or purpose, or any warranty or representation that the Goods will be free from defects).

(c)           Certain legislation may imply warranties or conditions or impose obligations upon the Supplier which cannot be excluded, restricted or modified except to a limited extent. These Terms must be read subject to those statutory provisions. If those statutory provisions apply, to the extent to which the Supplier is able to do so, its liability will be limited, at its option, to:

(i)    replacement of the Goods or supply of equivalent goods;

(ii)   payment of the cost of replacing the Goods or acquiring equivalent goods; or

10.          Liability

(a)          To the full extent permitted by law, the Supplier will not be liable to the Customer or any other person under any circumstances for any loss of use, profit, revenue, interest or goodwill, or for any injury or death to any person, or for any direct or indirect, incidental or consequential damages suffered or incurred by the Customer or any other person, whether such liability arises directly or indirectly as a result of or in connection with:

(i)    any negligent act or omission or wilful misconduct of the Supplier or its employees or Suppliers;

(ii)    the supply, performance or use of any Goods; or

(iii)   any breach by the Supplier of its obligations under these Terms.

(b)     Without limiting the operation of clause 10(a), the Supplier will not be liable for any damage to, or defects in, the Goods caused by the improper storage, warehousing or transport, or by any neglect, abuse or improper use of the Goods.

11.          Intellectual property

(a)           The Customer acknowledges that, notwithstanding any provision of these Terms, all trademarks, copyright and other intellectual property rights embodied in or relating to the Goods and any related documentation remain the property of the Supplier at all times.

(b)           The Customer must not, at any time, without the prior written consent of the Supplier, register or use any trademark, trade name, domain name, trading style or commercial designation or design used by the Supplier in connection with the Goods.

12.          Termination by Supplier

Any breach by the Customer of these Terms will entitle the Supplier to:

(a)   Immediately terminate the supply of Goods to the Customer; and

(b)  Demand immediate payment of all amounts owing by the Customer to the Supplier on any account return, without prejudice to any other rights of the Supplier under these Terms or at law.

13.          Costs and expenses

(a)           If the Customer breaches any of these Terms, the Customer must pay to the Supplier on demand all costs, charges and expenses

(including legal and collection costs on a full indemnity basis) incurred by the Supplier in enforcing or attempting to enforce its rights under these Terms or at law, or otherwise in connection with collecting or recovering Goods from or money owing by the Customer.

(b)           A certificate signed by an authorised officer of the Supplier stating that an amount of money is owing to the Supplier by the Customer shall be prima facie evidence of the contents of that certificate.

14.          Termination without cause

The Supplier may at any time by giving not less than one month’s notice to the Customer decide to terminate this Agreement for any reason.

15.          Miscellaneous

(a)           A waiver granted by the Supplier in relation to any of these Terms is binding on the Supplier only if it is given in writing and signed by an authorised representative of the Supplier. A waiver by the Supplier of a right under these Terms does not affect any of its other rights under these Terms.

(b)           The Supplier may vary these Terms immediately upon giving notice to the Customer of such variation. By continuing to place orders for Goods, the Customer will be deemed to have accepted the varied Terms.

(c)           The invalidity or unenforceability of any of these Terms shall not affect the validity or enforceability of the remainder of these Terms.

(d)          These Terms are governed by the laws of the State of Victoria.