ePac Holdings Terms & Conditions of Sale, Order Confirmations, and Invoices

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.

  1. Delivery
    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.
  2. 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.
  3. Indemnity
    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.
  4. Claims
    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).

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9.2. If written notice of a claim is not given to Seller within 30 days, it will be deemed to have
been waived by Buyer.
9.3. No claim will be accepted by Supplier if:
(a) there is any attempt to repair the defect by any person not authorised by the
Seller to effect such repairs;
(b) the defective item has been modified or incorrectly stored, maintained, installed
or operated; or
(c) Buyer disposes of the item in whole or in part.
9.4. Buyer will indemnify the Seller for costs and expenses incurred by the Seller or its
solicitors, legal advisers, mercantile agents and others acting on the Seller’s behalf to
the extent that the Buyer has caused or contributed towards the matter which lead to
the Seller engaging such persons.

  1. Customer Credit
    10.1. Prior credit approval and non-delinquent status are necessary before Seller will ship on
    an open account basis. If at any time the financial responsibility of the Buyer, or the
    credit risk involved, becomes unsatisfactory to the Seller, the Seller may require cash
    or satisfactory security prior to shipments or deliveries.
  2. Payment
    11.1. Cash purchases will be paid for with order or at or prior to delivery as required by the
    Seller.
    11.2. Credit purchases will be paid for by cheque, bank cheque or EFT without deduction, in
    accordance with the terms specified on the invoice.
    11.3. All queries regarding items shown on invoices must be submitted by the Buyer to the
    Seller within thirty (30) days of the issue date of invoice.
    11.4. If any undisputed amount due and payable is not paid in accordance with payment
    terms agreed, the Seller reserves the right to hold deliveries until due payment has been
    received or the matter has been resolved.
  3. Set Off and Recovery
    12.1. The Seller can set off any amount which the Buyer or any of its related entities owe the
    Seller under these Terms and Conditions or any related order or contract against any
    amount which the Seller owes to Buyer or any of its related entities (whether under
    these Terms and Conditions, related order, contract or otherwise).
    12.2. Unapplied cash, credit notes or other discounts against future purchases issued by
    Seller in connection with products returned by the Buyer must be used by Buyer within
    90 days of issuance by Seller, and unless applied by the Buyer against the purchase of
    additional products within such 90-day period, shall expire.
  4. Personal Property Securities Act 2009 (Cth) (PPSA) Registration
    13.1. Buyer acknowledges that Seller’s rights and interest in product and services supplied
    to the Buyer, under these Terms and Conditions or any related order or contract, and
    the proceeds derived from them, constitute a security interest. Seller may register any
    security interest contemplated by these Terms and Conditions and/or any related order
    or contract on the PPS Register (as defined in the PPSA). Buyer must supply the Seller
    with any information and take any steps Seller requires to effect and enforce such
    registration. Buyer irrevocably and unconditionally waives any rights under the PPSA to
    receive any notice from Seller in connection with its registration, including any
    verification statement or financing change statement registered by Seller. Buyer will not
    allow a security interest to be created or registered over products in priority to the
    security interest held by Seller.
    13.2. Buyer agrees that any action taken by Seller in relation to the Buyer’s security interest
    in product is at the cost of Buyer. The parties agree that for the purposes of section 115
    of the PPSA, nothing in sections 95, 121(4), 125, 130 (to the extent that it requires the
    Seller to give any notice to the Buyer), 132(3)(d), 132(4) and 135 of the PPSA will apply
    to any collateral arising from or in connection with these Terms and Conditions and/or
    any related order or contract. Notwithstanding section 275 of the PPSA, the parties
    further agree to keep confidential the contents of these Terms and related material.
  5. Excluded Items
    14.1. To the maximum extent permitted by law, all terms, conditions, warranties and
    representations expressed or implied by statute, common law, equity, trade, custom or
    usage are expressly excluded.
    14.2. To the maximum extent permitted by law, all representations warranties and conditions
    relating to product or services supplied by the Seller (including, without limitation, as to
    quality, suitability or fitness for any purpose (whether or not made known to the Seller),
    compliance with any sample or description, whether express or implied, and however
    made or arising, are hereby excluded, and the Seller will have no liability of any nature
    to the Buyer in respect thereof. Without limitation, the Buyer acknowledges that no
    catalogue, technical schedule, price list or product literature of the Seller is deemed to
    constitute or contain any representation, warranty or condition relating to products or
    services.
  6. Insolvency

15.1. If the Buyer is involved in any act of insolvency, then the Seller may deem this to be a
default under these Terms and Conditions and may suspend its obligations under or
terminate these Terms and Conditions and/or any related order or contract without
prejudice to any rights it may have. An act of insolvency includes bankruptcy, liquidation,
receivership, administration, failure to comply with a statutory demand, a suspension of
payment of debts or the bringing of a winding up application which is not dismissed
within seven (7) days.

  1. Force Majeure
    16.1. Seller will not be in default or breach of these Terms and Conditions or any related order
    or contract, and will not be liable to Buyer, for any delay or failure to perform arising
    from or due to an event of Force Majeure.
    16.2. Without prejudice to any obligation to pay for product, equipment or services already
    delivered as the date of a Force Majeure, Seller reserves the right to terminate an
    arrangement in whole or in part, or to postpone delivery by a reasonable period, if
    performance of its obligations is prevented or impaired by an event of Force Majeure.
    16.3. An event of Force Majeure means an event or cause beyond the reasonable control or
    influence of Seller and includes, without limitation any labour dispute, blockade, strike,
    lock out, shortage of labour, industrial action; an act of God, natural disaster, lightning,
    storm, gale, landslide, bush fire, climatic condition or earthquake; accident, explosion,
    flood, fire, damage by water, operating breakdown; act of public enemy, political unrest,
    civil commotion, riot, war, terrorism or sabotage; the effect of any applicable law, order,
    official directive, rule or regulations of any government or other competent authority;
    environmental contamination; trade sanction, embargo, inability to obtain any essential
    equipment or materials, delay by suppliers, restricted supply of electrical power or
    materials, water shortage, lack of transportation.
    16.4. If Seller terminates an arrangement pursuant to clause 16, Seller shall refund any
    payment which Buyer has already made on account of the price (subject to deduction
    of any amount Seller is entitled to claim from Buyer) but will not be liable to compensate
    Buyer for any further loss or damage caused by the termination or any failure to deliver
    arising out of it.
  2. Notice
    17.1. Buyer will be deemed to have notice of and be bound by any change to these Terms
    and Conditions immediately once updated by the Seller and either notified to the Buyer
    directly or displayed by the Seller’s website. Such changes will not apply to orders
    accepted by the Seller prior to the date of the change.
  3. Waiver
    18.1. Failure by the Seller to insist on strict performance of any term, warranty or condition of
    these Terms and Conditions or any related order or contract will not be taken as a waiver
    of it or of any rights the Seller may have and no waiver will be taken as a waiver of any
    subsequent breach of any term, warranty or condition.
  4. Variation
    19.1. No variation of these Terms and Conditions nor of any specific terms set out on the front
    page of an Order Confirmation will be valid or bind the Seller unless approved in writing
    by an authorised representative of the Seller.
  5. Severability
    20.1. If any provision of these Terms and Conditions is or shall become void in whole or in
    part, the other provisions shall, where appropriate, be replaced in accordance with the
    meaning and purpose of these Terms and Conditions.
    20.2. Any part of these Terms and Conditions being a whole or part of a clause, shall be
    capable of severance without effecting any other part of these Terms and Conditions.
  6. Jurisdiction
    21.1. These Terms and Conditions and any dispute, proceeding, or claim of any nature arising
    out of or in any way relating to them or their formation shall be governed and construed
    in accordance with the laws of Victoria, Australia. Each party irrevocably submits to the
    exclusive jurisdiction of courts exercising jurisdiction there.
  7. Confidentiality
    22.1. All information relating to, or contained in, a quotation, purchase order, Order
    Confirmation or invoice (“Confidential Information”) is subject to a duty of confidence
    and must not be disclosed to any person unless the disclosure is permitted by clause
    22.2.
    22.2. A party may disclose Confidential Information:
    (a) to those of its employees, related bodies corporate, legal advisors, agents,
    consultants and contractors who may reasonably require the information,
    including to perform these Terms and Conditions;
    (b) with the consent of the other party;
    (c) where a party can prove that information was in its possession before disclosure
    to it by the other party (and not subject to obligations of confidence between the
    parties) or was independently developed;
    (d) to the extent required to enforce these Terms and Conditions or for proceedings
    arising out of or in connection with these Terms and Conditions; or
    (e) to the extent required by law, competent regulatory authority or court order.