Please contact ABBE Corrugated Pty Ltd for Privacy Policy on 03 9301 8800.

ABBE CORRUGATED PTY LTD A.B.N 80 843 346 086 - TERMS AND CONDITIONS OF SALE

1. DEFINITIONS

    In this document (“Terms and Conditions”):

a) “Application” means the application by the Buyer to the Seller for commercial credit.

b) “Buyer” means the person placing the Order with the Seller.

c) “Carrier” means a carrier nominated by the Buyer and agreed to by the Seller, in respect of an Order.

d) “Change in Control” means a situation or occurrence where a party comes under the Control of a person who did not Control that party at the date of these Terms and Conditions.

e)         “Contract” means the contract formed between the Seller and the Buyer in respect of an Order comprised of the documents referred to in clause 3(e).

f) “Control” has the meaning in s 50AA of the Corporations Act 2001 (Cth).

g)         “Delivery” means delivery in accordance with clause 5 of these Terms and Conditions

“Goods” means any goods, products, materials or services to be supplied by the Seller.

h) “Insolvency Event” means any of the following events:

i)          the Buyer, being an individual, commits an act of bankruptcy or becomes insolvent;

ii)         a receiver, receiver and manager, administrator, controller, provisional liquidator or liquidator is appointed to the Buyer, or the Buyer enters into a scheme of arrangement with their creditors, or the Buyer is wound up;

iii) the Buyer assigns any of its property for the benefit of creditors or any class of them;

iv) the holder of a Security Interest takes any steps towards taking possession or takes possession of any of the assets of the Buyer, or exercises any power of sale;

v)         a judgement or order is levied or enforced against the Buyer in excess of $10,000.00 (or the equivalent in any currency) and that judgement or order is not satisfied, quashed or stayed within 20 business days after being made;

vi) any step is taken to do anything listed in the above paragraphs; and

vii) any event that is analogous or has a substantially similar effect to any of the events specified in this definition in any jurisdiction.

i) “Order” means an offer to purchase made by the Buyer either verbally, in writing or through the Website.

j) “Order Confirmation” means the Seller’s written confirmation of the receipt of the Order (other than Orders made through the Website) and confirming to the Buyer the product quantity, price and specifications.

k) “PPS Act” means the Personal Property Securities Act 2009 (Cth).

l)          “PPS Law” means the PPS Act, and other associated legislation and regulations, as amended from time to time.

m) “Quotation” means a written offer by the Seller to supply a specified product to the Buyer.

n)         “Security Interest” has the same meaning as defined in the PPS Act.

o) “Seller” means Abbe Corrugated Pty Ltd A.B.N 80 843 346 086.

p) “Website” means the Seller’s website at www.abbe.com.au

q) “Website Receipt” means a receipt issued by the Seller to the Buyer recording the Order accepted by the Seller, all relevant details of the Order, and the payment of all relevant sums by the Buyer.

2. APPLICATIONS & CREDIT

 (a) The Buyer acknowledges and agrees that its Application will be subject to these Terms and Conditions.

(b) If the Seller accepts the Buyer’s Application, then these Terms and Conditions will bind the Seller and Buyer.

(c) The Seller’s acceptance of an Application does not oblige the Seller to enter into any transaction with the Buyer.

3. CONTRACT

a) The Buyer may at any time submit a request for a Quotation or an Order to the Seller.

b) The Seller will, issue to the Buyer, as soon as practicable after receipt:

            i) of a request for Quotation, a written Quotation; and

            ii) of an Order, a written Order Confirmation.

c) An Order made other than through the Website is accepted when the Buyer receives from the Seller an Order Confirmation or such other written confirmation of the Order, whichever first occurs.

d) An Order made through the Website is accepted when the Seller issues a final invoice to the Buyer, and the Buyer has paid for the Goods through the Website and is issued with a Website Receipt.

e) Where the Seller issues a Quotation to the Buyer, the Buyer must still place an order with the Seller, which is accepted in accordance with sub-clauses (c) and (d) above.

f)         Each time an Order is accepted a separate Contract will be wholly documented by (in descending order of precedence) any specific terms agreed in writing, any Order Confirmation, Website Receipt and these Terms and Conditions.

4. CANCELLATION AND VARIATION OF ORDER

            Each Contract cannot be cancelled or varied except upon terms agreed by the parties which compensate the Seller for all work done, all materials used or specially procured to the date of cancellation, and all expenses, including overheads and handling charges, incurred to the date of cancellation.

5. DELIVERY

(a) The Buyer must provide a delivery address (and specific location, if requested by the Seller) as part of its Order (Delivery Location). Alternatively, by agreement with the Seller, the Buyer may arrange for collection of the Goods by a Carrier.

The Buyer must ensure that the Delivery Location is accessible to the Seller.  If it is not, then the Buyer must pay to the Seller its expenses associated with all costs subsequently incurred by the Seller in attempting to to deliver the Goods.

The Buyer must ensure that a Carrier contacts the Seller and agrees a collection time at the Seller’s business premises, during business hours.  If the Buyer arranges delivery by a Carrier, then delivery is effected when the Carrier loads the Goods onto its vehicle at the Seller’s business premises.

The Seller will make all reasonable efforts to have the Goods delivered to the Buyer at the Delivery Location, on the date specified in the Contract. The Seller is not liable for any failure to deliver or delay in delivery for any reason.

(b) Delivery takes place at the time that the Seller unloads the Goods at the Delivery Location.  The Buyer acknowledges that Delivery is not contingent on the Seller identifying a representative of the Buyer at the Delivery Location, nor having any such person sign to acknowledge receipt.

(c) The Seller reserves the right to deliver the Goods in more than one instalment. In that case, each instalment is deemed to be sold under a separate Contract.

6. PRICE

            The price of the Goods will be the amount stated in the Contract, which may include any excise, or sales tax or any other sales taxes or charges which may be established or levied by any governmental authority (domestic or foreign) upon goods or any part of these goods, or on the manufacture, use, sale or Delivery of these goods.

7. PAYMENT

a) Where the Seller has granted the Buyer credit, payment for the Goods must be made in full (without any set off) and received by the Seller by the last business day of the month following the month of Delivery unless some later date has been agreed by the Seller in writing.

b) Payment is only received by the Seller when it receives cleared funds into the Seller’s bank account.

c) Should the Buyer fail to pay any money due under these Terms and Conditions by the due date, the Buyer will be in default and the Seller may charge interest at 12% per annum calculated daily until payment in full.

d) The Buyer is not entitled to set off any sum against the amount due to the Seller.

8. GST

a)         In this clause words that are defined in A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as their definition in that Act.

b)         Except as otherwise provided by this clause, all consideration payable under these Terms and Conditions in relation to any supply is exclusive of GST.

c)         If GST is payable in respect of any supply made by the Seller under these Terms and Conditions, subject to clause 8(d) the Buyer will pay to the Seller an amount equal to the GST payable on the supply at the same time and in the same manner as the consideration for the supply is to be provided under these Terms and Conditions.

d)         The Seller must provide a tax invoice to the Buyer before the Seller will be entitled to payment of the GST payable under clause 8(c).

9. WEBSITE SALES

Where the Seller sells Goods to the Buyer through its Website the Buyer (and each signatory) acknowledges and agrees that:

a)         Each is at least 18 years of age.

b)         The Seller does everything it can to carry adequate stock, but is dependent on availability of Goods from its suppliers and so may at times add and withdraw Goods by updating its Website.

c)         The Seller may at times change the advertised price of Goods when updating the Website.

d)  If particular Goods are unavailable, then the Seller will advise the Buyer within 5 business days and arrange an alternative product or provide the Buyer with a full refund.

10. TITLE

a) The legal and equitable title to the Goods will only be transferred from the Seller to the Buyer when the Buyer has paid all monies that are owed to the Seller on any account.

b) The Buyer acknowledges that until the Buyer has paid all monies that are owed to the Seller on any account whatsoever, the Buyer holds the Goods as bailee for the Seller.

c) Until the Seller receives full payment of all monies due from the Buyer on any account, the Buyer must keep the Goods separate and in good condition as a fiduciary of the Seller, clearly showing the Seller’s ownership of the Goods and, must keep books recording the Seller’s ownership of the Goods and the Buyer’s sale or otherwise of them.

d) If the Buyer defaults then, in addition to clause 10(b), the Seller may take possession of the Goods wherever the Goods are located and access the Buyer’s premises for that purpose.

e) The Buyer grants to the Seller a charge over all property of the Buyer including any real estate as security for the payment of all present and future debts.

f) The risk of any loss or damage to the Goods passes from the Seller to the Buyer on Delivery.

11.PERSONAL PROPERTY SECURITIES ACT 2009

(a) The Buyer acknowledges that it grants the Seller a Security Interest in all Goods supplied by the Seller and their proceeds to secure all monies owing to the Seller now and in the future in respect of the supply of Goods.

(b) The Buyer undertakes to provide any information that the Seller may reasonably require to enable the Seller to perfect and maintain the perfection of its Security Interest (including by registration of a financing statement).

(c) The Buyer undertakes to immediately notify the Seller in writing of any changes in its name and/or any other change in its details (including, but not limited to, changes in its address, facsimile number, trading name or business practice).

(d) The Buyer waives its right to receive a verification statement in respect of any financing statement and agrees to the extent permitted by law that:

(i) Where the Seller has rights in addition to, or existing separately from those in Chapter 4 of the PPS Act, those rights will continue to apply and in particular, will not be limited by Part 4.3

            in Chapter 4; and

(ii) The rights of the Buyer as debtor under Sections 130, 132, 135 and 137 will not apply to these Terms and Conditions.

(e) The Buyer will pay all costs, expenses and other changes incurred, expended or payable by the Seller in relation to the

            filing of a financing statement or financing change statement in connection with the Terms and Conditions.

(f) The Buyer agrees that it will not allow Security Interests to be created or registered over the Goods in priority to the Security Interest(s) held by the Seller.

12. FORCE MAJEURE

            The Seller is not liable for failure to perform the Contract to the extent and for so long as it’s performance is prevented or delayed because of circumstances outside the Seller’s reasonable control.

13. DEFAULT

a) The Buyer will be in default if:

(i) The Buyer breaches any of the Terms and Conditions;

(ii) Payment for the Goods has not been received by the Seller by the due date of payment;

(iii) An Insolvency Event occurs in relation to the Buyer;

(v) The Seller forms the reasonable opinion that the Buyer’s credit worthiness or credit standing alters from that indicated in its Application.

(vi) The Buyer undergoes a Change in Control without the prior written consent of the Seller.

b) If one of the events described in clauses 13(a)(iii) to (v) inclusive occurs, the Seller may without notice to the Buyer take any one or more of the following actions:

(i) Treat the whole of the Contract and any other Contract with the Buyer as repudiated and sue for breach of contract.

(ii) Refuse to supply any Goods to the Buyer.

(iii) Claim the return of any Goods in the Buyer’s possession where title has not passed to the Buyer.

(iv) Withdraw or vary any credit the Seller has provided to the Buyer.

(v) Make all monies owing by the Buyer to the Seller on any account immediately due and payable.

c)         If one of the events described in clauses 13(a)(i) or (ii) occurs, the Seller may take any one or more of the actions described in clause 13(b) provided that the Seller first gives the Buyer 14 days’ written notice and the Buyer fails to rectify the breach within 14 days of receiving the notice.

14. TERMINATION

On termination of these Terms and Conditions, whether pursuant to clause 13 or otherwise:

(i) the Buyer remains liable to the Seller for all fees, costs, expenses and claims in any way connected to these Terms and Conditions; and

(ii) the Buyer will immediately deliver to the Seller at its business address (or such other address as the Seller reasonably directs), or make available to the Seller to collect at the Buyer’s delivery address, (as advised by the Seller) all Goods in the Buyer’s possession where title has not passed to the Buyer.

15. CREDIT

a) The Seller may grant the Buyer credit upon the Terms and Conditions on the basis of the Application and such other documents and information as may be required by the Seller.

b) Until the Seller grants the Buyer credit by notice in writing, the Seller will only supply Goods to the Buyer on the basis of cash prior to Delivery.

c) Notwithstanding anything else in these Terms and Conditions, any charges for artwork must be paid on Delivery of the first Order.

d) The granting of credit does not oblige the Seller to extend any particular amount of credit to Buyer.

16. WARRANTIES & LIMITATION OF LIABILITY

a) The Seller warrants that the Goods supplied are of merchantable quality.

b) The Seller’s liability for breach of sub clause 16 (a) or a condition or warranty implied into this Contract by law including, without limitation, the Statutory Provisions (other than a warranty found under the Competition and Consumer Act 2010, Schedule 2, sections 51-59) is limited to any one of the following as determined by the Seller:

            (i) for goods, products or materials - the cost of replacement of the defective Goods as soon as reasonably practicable, the repair of the defective Goods or the repayment (or allowance) of the invoice price of the defective Goods;

(ii) for services to the provision of services again or payment of the cost of having relevant services provided again.

c) The Buyer will examine the Goods for defects and must notify the Seller of any defects in writing within 30 days of Delivery. If the Buyer does not notify the Seller within 30 days of Delivery, the Buyer will be deemed to have accepted the Goods to be of merchantable quality and free of defects and agrees that the Buyer is prevented from subsequently pleading otherwise.

d) To the extent the law permits, the Buyer agrees that the Seller is not liable to the Buyer (and any party claiming through the Buyer against the Seller or to any third party claiming directly against the Seller) for consequential, special or indirect loss or damage of any kind howsoever arising and whether caused by a breach of any of the warranties, terms, conditions or any other provisions of a Contract or from tort or otherwise related to a contract. Consequential, special or indirect losses will be taken to include but not limited to:

(i) any loss of income, profit, revenue or business opportunity.

(ii) any loss in the nature of overhead costs;

(iii) any loss of goodwill or reputation, including, without limitation, any loss of value of intellectual property and any damages, liquidated sums or penalties under any other agreement.

e) The Seller’s obligations in the event of paragraph 10(b) applying do not include:

(i) The cost of removal of defective Goods;

(ii) The cost of installation of the replacement for the defective Goods;

(iii) Defects in Goods caused by improper use or maintenance of Goods or related components or normal wear and tear and damage.

f) Save as otherwise might be provided by statute the Seller assumes no liability whatever for any technical advice, recommendation, information (whether contained in data sheets or otherwise) or assistance given, or therefrom, all such advice being given and accepted at Buyer’s sole risk.

g)         Save as otherwise might be provided by statute, the Seller assumes no liability whatsoever for Goods produced in accordance with artwork checked and authorised by the Buyer.

h)         For the purpose of clause 16(b), the value of the Goods will be calculated by reference to the invoice value of the Goods.

i) Subject to clause 16(b) and for the purpose of clause 16(h), if there be no invoice value for the Goods, the compensation will be calculated by reference to the value of such Goods at the place and time when they

            were delivered to the Buyer or should have been so delivered. The value of the Goods will be fixed according to the current market price, or, if there be no commodity exchange price or current market price, by reference to the normal value of Goods of the same kind and quality.

j) The Seller is not liable for any Goods or services to the extent that:

(i) Goods (however described) or any materials which are provided or approved by or on behalf of the Buyer; and

(ii) are used, stored, handled or maintained incorrectly or inappropriately after Delivery. The Buyer must ensure that all of the Buyer’s procedures and standards are met before use or on-sale. It is the Buyer’s sole responsibility to ensure that materials, designs, drawings, specifications and procedures provided by or on behalf of the Buyer to be used by the Seller in meeting any Orders, are correct, appropriate and comply with all applicable laws, regulations and standards.

17. INDEMNITY

a) Subject to clause 17 b), the Buyer indemnifies and will keep the Seller indemnified against all claims, loss, damage, liability, cost or expense that may be incurred or suffered by the Seller (and/or the Seller’s employees, agents or contractors) arising from or in connection with any breach or default of the Buyer of these Terms and Conditions, any enforcement of these Terms and Conditions by the Seller, any claims by a third party in respect of personal injury, death or damage to property, whether or not they relate to fault in the Goods, or any related order or contract or the Competition & Consumer Act 2010 (Cth).

b) The Buyer’s indemnity in clause 17 a), only applies to the extent that the claim, loss, damage, liability, cost or expense suffered by the Seller is one which the Seller does not bear liability for pursuant to clause 16.

18. WAIVER

            The Seller’s failure at any time to insist on performance of any provision of these Terms and Conditions and/or of a Contract is not a waiver of the Seller’s rights at any time later to insist on performance of that or any other provision.

19. PATENTS & DESIGNS

a) In consideration of the Seller accepting an Order from the Buyer, the Buyer warrants that no patent, copyright trademark or design is infringed and the Buyer holds the Seller harmless and the Buyer’s indemnity under clause 17 extends to all costs and/or expenses incurred by the Seller arising from any claim by a third party of infringement of their rights.

b) All technical information, advice, know how, drawings, design and samples, including quotations given, are submitted by the Seller on the basis that they will remain the Seller’s property and must be kept confidential by the Buyer who will not make any use of such items without the Seller’s consent in writing, and the Seller will be entitled to compensation for any unauthorised use of such information.

c) Buyer agrees that all tooling, materials, industrial or intellectual property or the like used in the preparation for or production of the Goods, any product or provision of any service will be and remain the property of the Seller or its nominee despite any contribution by the Buyer.

20.JURISDICTION

            The laws of the State of Victoria will govern these Terms and Conditions and all disputes will be heard in the State of Victoria. The parties submit to the non-exclusive jurisdiction of the Courts of Victoria.

21. PALLETS

            The Buyer agrees that pallets and reusable packaging remain the property of the Seller or it’s nominee at all times and the Buyer must promptly return all pallets and reusable packaging provided by the Seller. The Buyer indemnifies the Seller for

            the cost of hire and/or replacement of any pallets not returned within 14 days or the Seller’s request. This clause does not apply to pallets that have been sold and invoiced to the Buyer.

 22. PERSONS

In these Terms and Conditions, a reference to:

a)         a person includes a firm, partnership, joint venture, association, corporation or other corporate body;

b)         a person includes the legal personal representatives, successors and assigns of that person; and

c)         any body which no longer exists or has been reconstituted, renamed, replaced or whose powers or functions have been removed or transferred to another body or agency, is a reference to the body which most closely serves the purposes or objects of the first-mentioned body

23. AUTHORITY

a) The person placing the Order with the Seller and the person who the Seller provides goods and services to is authorised by the Buyer to contract with the Seller. Anyone who places an Order and anyone to whom Goods are provided by the Seller and/or any person who the Seller provides Goods and/or services is authorised by the Buyer to receive such Goods.

b) The person who signs the Application on behalf of the Buyer, warrants that they have full authority to bind the Buyer to these Terms and Conditions.

24. ENTIRE AGREEMENT

a) Previous dealings between the Seller and the Buyer will not have any effect on the Contract.

b) Trade custom and/or trade usage is superseded by the Contract and will not be applicable in the interpretation of the Contract.

c) A Contract constitutes the entire agreement between the Seller and the Buyer with respect to the Goods supplied under the Contract.

            All prior negotiations, proposals and correspondence are superseded by that Contract and these Terms and Conditions will in all circumstances prevail over the Buyer’s terms and conditions of purchase (if any).

26. NO ASSIGNMENT WITHOUT CONSENT

a) The Buyer must not, without the prior written consent of the Seller:

            i) assign or novate these Terms and Conditions;

            ii) transfer any right or obligation arising from these Terms and Conditions;

            iii) mortgage, charge, create a security interest (as defined in s 51A of the Corporations Act 2001 (Cth)) over or otherwise encumber any benefit arising from these Terms and Conditions.

            v) subcontract the performance of any of its obligations under these Terms and Conditions.

b) A change in the effective management, ownership or control of a party is taken to be an assignment for the purposes of this clause.

25. JOINT AND SEVERAL

If a Buyer consists of more than one person or corporate body, the Terms and Conditions binds them jointly and each of them severally.

26. THIS DOCUMENT AND HEADINGS

In these Terms and Conditions:

a)         a reference to this or other document includes the document as varied or replaced regardless of any change in the identity of the parties; and

b)         heading and sub-headings are inserted for ease of reference only and do not affect the interpretation of these Terms and Conditions.

27. SEVERANCE

a)         If a provision in these Terms and Conditions is held to be illegal, invalid, void, voidable or unenforceable, that provision must be read down to the extent necessary to ensure that it is not illegal, invalid, void, voidable or unenforceable.

b)         If it is not possible to read down a provision as required in this paragraph, that provision is severable without affecting the validity or enforceability of the remaining part of that provision or the other provisions in these Terms and Conditions.

28. NUMBER AND GENDER

In these Terms and Conditions a reference to:

a)         the singular includes the plural and vice versa; and

b)         a gender includes the other genders.

29. NOTICES

a)         All notices to be given to or demands to be made upon any party to these Terms and Conditions must be in writing and may be delivered in person or sent by mail or email to the current business address of the party.

b)         All notices are deemed served 2 business days after the date of posting or if delivered personally, on the actual date of receipt, or if sent by email, in the normal course of transmission.