ePac Flexibles Melbourne Terms and Conditions of Sale (01/22)
1. Scope and Binding Effect
1.1. These Terms and Conditions of Sale (“Terms and Conditions”) apply to all purchase orders accepted by ePac Flexibles Melbourne Pty Ltd (ABN 75 649 460 560) (“Seller”) and to all price quotations made by the Seller. To the extent that these Terms and Conditions conflict with or are different from those contained in any purchase order or other procurement documents submitted by any person, firm, company or customer (“Buyer”), these Terms and Conditions will prevail and any additional or inconsistent terms are rejected by the Seller. Buyer’s acceptance of or payment for products and services shall conclusively confirm assent to these terms.
2. Products and Services
2.1. Buyer is responsible for choice of product, and ensuring product complies with all applicable legal requirements and regulatory standards before use or on-sale.
2.2. Buyer must observe all storage and use conditions (if any) for products specified by the Seller in every respect.
2.3. Buyer is responsible, before use, for carrying out appropriate testing under realistic conditions and must suspend use of product supplied by the Seller immediately if it observes an error.
2.4. Seller is not responsible or liable for any product or service to the extent that:
(a) it is made or performed to designs, drawings, specifications and/or procedures etc. or with any materials which are provided or approved by or on behalf of Buyer; or
(b) are used, stored, handled or maintained incorrectly or inappropriately after delivery to Buyer.
2.5. Seller may update, modify, alter or make substitution for any of its products or any component in or used in forming any part of them.
2.6. Buyer is solely responsible for ensuring that materials, designs, drawings, specifications, procedures etc. provided by or on behalf of Buyer, to be used by Seller in meeting any orders, are correct, appropriate and comply with all applicable laws, regulations and standards.
2.7. These Terms and Conditions and any order or contract between the Buyer and Seller will not be deemed to be a sale by sample. Any description of products is given by way of identification only and does not constitute a sale by description. No representation, warranty or condition is given that products supplied will be completely identical to, or correspond with, any sample or test material that may have been supplied.
3. Intellectual Property
3.1. Buyer represents and warrants to Seller that at all times:
(a) it is duly authorised to permit the seller to use the trade marks, copyright material, artwork and any material which Buyer specifically asks Seller to use on or in connection with products or services; and
(b) Seller’s use of such trademarks, copyright material, artwork or material will not infringe the trade mark, copyright or other intellectual property rights of any party and will not breach any statute, regulation or rule.
3.2. Buyer indemnifies and holds Seller harmless in respect of all damages, costs, claims, expenses and liabilities whatsoever arising from or in connection with any use by Seller of trade marks, copyright material, artwork or other material which Seller uses at Buyer’s direction or instruction, which infringes or is alleged to infringe any intellectual or industrial property right of any third party anywhere in the world.
4. Purchase Orders and Quotations
4.1. All orders by Buyer are made subject to these Terms and Conditions (and any specific terms set out in an Order Confirmation) alone, which together exclude and override any other oral or written representations, terms and conditions inconsistent with them which the Buyer may seek to impose.
4.2. Any quotation made by Seller in respect of a supply is for information only and shall not constitute a firm offer. Orders are only binding when a written Order Confirmation is sent by the Seller to the Buyer. If the Buyer makes any additions to or alterations to an order placed with Seller, the Seller will be entitled to reject such addition or alteration or to cancel the order.
5. Purchase Price
5.1. Unless stated in an Order Confirmation or otherwise agreed in writing, product unit prices will be as determined by Seller at the time of Order Confirmation.
5.2. Unless agreed by the Seller in writing, prices do not include costs incurred by the Seller arising from late notification by the Buyer of a change to agreed delivery schedule, storage charges where product is not collected immediately upon being made available, or demurrage costs.
5.3. Any delivery costs included in prices are representative of standard delivery only (that is, delivery of products between 8.30am and 5.00pm Monday to Friday (inclusive) in the place to which products are to be delivered, subject to that day not being a bank or public holiday). Any costs, charges or expenses incurred by Seller to meet variations to standard delivery are payable by Buyer.
5.4. Duty, Government charges etc. including GST will be to the Buyer’s account.
5.5. Minor deviations from approved colour or press proofs will not entitle the Buyer to a price reduction or to refuse acceptance.
5.6. All fully prepaid invoices will include 5% for freight and 5% for overage in the amount charged. If the delivered quantity is below the 5% overage charged, a credit note will be issued by Seller to be used at a later date by Buyer.
5.7. Except for those sales set out in clause 5.6, delivery within a range of 10% (more or less) than the quantity ordered by the Buyer constitutes good performance of these Terms and Conditions, and the amount under or over supplied will be deducted or charged for pro-rata.
6.1. Unless otherwise agreed to by the parties:
(a) delivery is FOB Seller’s plant;
(b) risk in any product supplied to Buyer under these Terms and Conditions will pass to Buyer immediately upon delivery of Products to the carrier at the shipping point; and
(c) legal and equitable title of product is retained by Seller until Seller receives payment in full.
6.2. Seller will follow Buyer’s shipping instructions. Absent such instructions from Buyer, Seller will ship by the method it deems most advantageous. Delivery dates are estimates only. Seller will make commercially reasonable efforts to meet specified delivery dates, but will otherwise not be responsible for delayed deliveries.
6.3. The Seller will not be liable for any loss or damage whatsoever or howsoever caused arising from delay in delivery.
7. Limitation of Liability
7.1. To the maximum extent permitted by law, in no event shall the Seller be liable to the Buyer in an amount exceeding the purchase price of the product.
7.2. To the maximum extent permitted by law, neither party will be liable for any indirect, special, incidental, exemplary, punitive or consequential loss or damage of any kind (including loss of profits or revenue, loss of turnover, loss of goodwill, loss of customer, or plant downtime) sustained for any cause or arising out of anything in connection with these Terms and Conditions and/or any related purchase order. These limitations include any liability that may arise out of third-party claims.
7.3. Any technical advice furnished or recommendation made by Seller or any Seller representative concerning any use or application of any product is believed to be reliable but Seller makes no warranty, either express or implied, as to its accuracy or completeness or of the results to be obtained.
8.1. Buyer indemnifies Seller against any claim, loss, damage, liability, cost or expense that may be incurred or suffered by Amcor arising from or in connection with any breach or default by Buyer of these Terms and Conditions, any related order or contract, or the Competition and Consumer Act 2010 (Cth).
8.2. Without limiting clause 7.2, Buyer indemnifies and holds Seller harmless in respect of all damages, costs, claims, expenses and liabilities arising directly or indirectly out of or in connection with sales made by Buyer to third parties, or any use (whether by Buyer or any other person) of product or services supplied, where such costs, claims, expenses or liabilities are caused by, or arise due to the fault of Buyer.
9.1. Products will conform to specifications provided or approved by or on behalf of Buyer, subject to customary tolerances. Seller will repair or replace, at its option, any product found to be defective or nonconforming, provided that:
(a) any claim is received by the Seller within 30 days of delivery;
(b) Buyer has given prompt written notice to Seller of the specifically identified defect or nonconformity;
(c) Seller has provided written return authorization to Buyer and Buyer has returned the nonconforming product to Seller, freight prepaid by Seller;
(d) Seller has reasonably verified Buyer’s claim that the products is defective or nonconforming;
(e) the defect, loss or claim must not have resulted from an act or omission of the Buyer (including, without limitation, any instruction or specification provided by Buyer to Seller).