1.0 FORMATION OF CONTRACTS
1.1 In the following conditions of sale "the Company" shall mean Glass Bottles Direct ABN 49 114 524 686 and "the Purchaser" shall mean the entity or person(s) purchasing the goods and / or services which are the subject of these conditions of sale.
1.2 All contracts made by the Company shall be deemed to incorporate these terms and conditions together with any special conditions stated on or annexed to the quotation form or any other document submitted by the Company. No variation of or addition to these terms and conditions shall bind the Company unless made or specifically accepted by the Company in writing and in the event of inconsistency between any of the additional conditions unforesaid and these conditions, the additional conditions of sale shall be deemed to prevail.
2.0 QUOTATIONS AND ORDERS
2.1 All quotations constitute an offer by the Company which, unless otherwise stated herein, is capable of acceptance by the Purchaser to whom it is addressed within one (1) month after its date (after which time the offer shall lapse) or at any earlier time by the Company giving written notice to the proposing Purchaser of its revocation or the variation of any term including any price quoted therein.
2.2 No order will be accepted by the Company unless an official written order is received by the Company from the Purchaser. An order placed by the Purchaser shall be deemed accepted by the Company unless the Company notifies the Purchaser to the contrary within 3 business days of the receipt of the order by the Company.
3.0 COMPATIBILITY TESTING
3.1 The Purchaser acknowledges that it accepts all responsibility for the suitability of containers, closures, wadding, labels, decoration and any other items supplied by the Company for the purpose required, including the compatibility of the container, closure, wadding, labels, decoration and any other items supplied by the Company with the product with which the container is to be filled. The Company shall not have any responsibility whatsoever for any loss or damage, consequential or otherwise arising as a result or consequence of such lack of compatibility. The Purchaser acknowledges its obligations to carry out appropriate compatibility testing at the Purchaser's sole cost and expense in respect of each individual shipment or batch of containers, closures, labels and artwork delivered by the Company.
4.0 PRICE AND PRICE VARIATION
4.1 All prices and terms quoted by the Company or shown in any of its catalogues,on line shops or price lists relating to any goods or services to be provided are based on the cost prevailing at the date of the quotation, offer, catalogue or price list. Prices quoted do not include sales tax or any goods and/or services tax or any other value added tax and these and any other imposts of any government or other authority shall be payable by the Purchaser and will be added to quoted price and treated as part of the purchase price. Any such tax or impost will be calculated relevant to the actual delivery date of the goods irrespective of any delivery dates specified in an order.
4.2 Where an order is placed for forward delivery or the Company is unable to effect immediate delivery in respect of any order, the order is accepted subject to price adjustment such that the order will be charged and paid for at the relevant price for the goods ordered as set out in the Company's price list current at the time which delivery is made.
4.3 The Company may charge different prices for goods depending on whether the product is collected from the Company, delivered within a certain geographical area or delivered outside a certain geographical area.
5.0 TERMS OF PAYMENT
5.1 Unless otherwise agreed to or specified in writing by the Company, payment for the goods shall be made by the Purchaser to the Company as Pre-Paid or notice is given or provided in clause 6.4.
5.2 Should the Purchaser delay or default in respect of any payment due hereunder the Company shall have the right to charge interest at a rate equivalent to fifteen percent (15%) per annum calculated from the due date to the date of full and final payment. Any payment made by the Purchaser will be credited first against the interest accrued.
5.3 The obligation for payment contained in clause 5.1 shall be binding upon the Purchaser and enforceable by the Company notwithdstanding that title has not passed as provided in clause 8.1 hereof.
6.0 DELIVERY, COMPLETION AND RISK
6.1 Any times quoted for delivery of the goods are estimates only and the Company shall not be subject to any liability whatsoever for failure to deliver or for delay in delivery arising from any cause whatsoever.
6.2 The Purchaser shall not be relieved of any obligation to accept or pay for goods by reason of any delay in delivery or despatch.
6.3 The Company reserves the right to deliver in instalments and each such instalment shall be deemed to be sold under a separate contract. Failure to deliver any instalment shall not entitle the Purchaser to repudiate, rescind or terminate the contract.
6.4 The Company shall give notice to the Purchaser when the goods or part thereof are ready for delivery and if for any reason whatsoever the Purchaser fails to take possession of the goods within seven (7) days from the date of notification, or fails to give delivery instructions to the Company prior to the expiry of such seven (7) day period, then risk in the goods shall pass forthwith to the Purchaser and the Company shall be entitled to payment for the goods in accordance with the provisions hereof and the Company shall arrange for storage of the goods, the cost of which and all costs incidental thereto shall be for the Purchaser's account.
6.5 Subject to the above paragraph, the goods or part thereof supplied by the Company shall be at the Purchaser's risk immediately upon delivery to the Purchaser or into the custody of anyone acting on the Purchaser's behalf, whichever is the sooner.
7.1 The Purchaser shall inspect the goods forthwith upon delivery and shall within three (3) days from the date of delivery give written notice to the Company of any matter or thing by reason whereof the Purchaser may allege that the goods are not in accordance with the contract. All goods are supplied subject to the usual trade tolerances relating to weight, dimension and processing. If the Purchaser fails to give such notice within the aforesaid time, the goods shall be deemed to have been accepted by the Purchaser.
7.2 Should the Purchaser deem any goods to be faulty, the goods must be isolated and the Company advised so that appropriate assessment of the goods may be undertaken by or on behalf of the Company or the Company's supplier. No goods shall be returnable for credit until such time as a return authorisation is issued by the Company to the Purchaser.
8.1 Notwithstanding that risk in the goods shall pass to the Purchaser as provided herein, title to the goods shall remain with the Company until all moneys owing by the Purchaser to the Company have been paid in full (whether such moneys are in respect of the moneys payable under a specific contract or on any other account whatsoever) and until such time the Purchaser shall, unless otherwise agreed in writing by the Company, store the goods so as to indicate that they are the Company's goods and the Purchaser shall hold the goods as bailee thereof only subject nevertheless to its right to deal with the goods in the ordinary course of business on the basis that any moneys received as a result of such dealing shall be held by the Purchaser as trustee for the Company and for the benefit of the Company as hereinafter provided.
8.2 In the event that the Purchaser sells the goods to a third party in the ordinary course of business then the Purchaser shall hold the proceeds of the sale on trust for the Company (to such extent as is sufficient to discharge the Purchaser's obligations to the Company under the contract for sale of goods) and in the event that the Purchaser is not paid by the party to whom the goods were sold then the Purchaser agrees, at the option of the Company (to be exercised by notice in writing to the Purchaser) to assign its claim against that party to the Company (and for the purposes of giving effect to this provision the Purchaser hereby irrevocably appoints the Company as his attorney for such purpose).
8.3 If the goods shall be mixed with or become constituents of other goods, the proceeds of sale thereof shall be the property of the Company mutatis mutandis and the Purchaser will at the request of the Company assign to the Company all its rights as against any subpurchasers of the goods or goods with which the goods have been mixed or of which the goods are constituents.
8.4 The parties agree that the provisions of this Clause apply notwithstanding any agreement, whether subsequent to this agreement or not, between the parties under which the Company gives the Purchaser credit.
9.1 Any description given of any goods will be given by the Company by way of identification only and the use of such description will not constitute any contract between the Company and the Purchaser as a sale by description.
10.0 RETURNABLE MATERIALS
10.1 Where packaging (i.e. any item used for wrapping, dividing, supporting, protecting or transporting goods) has been charged for and is returnable, a returnable allowance will only be made in respect of such packaging if it has been received by the Company in what the Company or the Company's supplier determines to be an acceptable condition in their respective sole discretion.
10.2 Packaging will remain at all times the property of the Company or the Company's supplier and must not be used by the Purchaser or be allowed to be used by the Purchaser or any other party for any purpose other than its given purpose.
11.1 Where goods are manufactured in moulds, dies or tooling (the "Moulds") supplied by the Company or the Company's supplier, the Company does not warrant or represent that the goods are of the exact measure, content and capacity as are referred to in the description of the products.
11.2 If the products are manufactured in the Mould supplied by the Purchaser, the Company accepts no responsibility whatsoever for the shape, measure, content, capacity, fitness or otherwise of the goods or the Moulds or the suitability of the Moulds for the manufacture of the goods or for the loss of or damage to the Moulds or for any repair maintenance or modification to such Moulds.
11.3 With the exception of Moulds supplied by and at the sole expense of the Purchaser, all Moulds remain the property of the Company or the Company's supplier and neither the Company nor the Company's supplier is under any obligation to deliver or part with possession of such Moulds.
11.4 The cost of modification (including transport) of any Mould, other than where such modification has been initiated by the Company, is at the Purchaser's expense.
12.1 All materials which are intended to be affixed to, form part of, be inserted in or used in the manufacture of goods ("the Materials") supplied or to be supplied by the Purchaser must be shipped by the Purchaser to the factory nominated by the Company in accordance with the Company's instructions. The cost of freight and insurance associated with the supply and shipping of the Materials shall be to the Purchaser's account. The risk in the Materials shall remain with the Purchaser at all times including, without limitation, all times at which the Materials are situated on the Company's premises or that of any third party.
13.0 LIABILITIES OF THE COMPANY
13.1 Subject to any provisions herein to the contrary, the only conditions and warranties which are binding on the Company in respect of the state, quality or condition of the goods and services provided by the Company to the Purchaser are those imposed and required to be binding by statute (including the Trade Practices Act, 1974) and to the extent permitted thereby the liability, if any, of the Company arising from breach of such conditions or warranties shall, at the Company's option, be limited to and completely discharged, in the case of goods, by either the replacement or repair by the Company of the goods supplied to the Purchaser or the payment of the cost of replacing the goods or of acquiring equivalent goods or the payment of the cost of having the goods repaired and in the case of services, by either the supplying of the services again or the payment of the costs of having the respect of the supply of goods or of services and the state, quality or condition of the goods which may apart form this Clause be binding on the Company are hereby expressly excluded and negatived.
13.2 Except to the extent provided herein, the Company shall have no liability (including liability in negligence) to any person for any loss or damage, consequential or otherwise howsoever suffered or incurred by any such person in relation to the goods or the supply of services by the Company, its servants or agents and without limiting the generality therof in particular any loss or damage consequential or otherwise howsoever suffered or incurred by any such person caused by or resulting directly or indirectly from any failure, breakdown, defect or deficiency of whatsoever nature or kind of any of the goods.
13.3 Except as provided above, the Company shall not be liable for any breach of these terms and conditions, whether the breach is fundamental or otherwise, by the Company, its servants or agents.
14.0 CANCELLATION OR SUSPENSION
14.1 No cancellation, suspension or variation (including, without limitation, the delivery date) to any contract of which these terms and conditions form part shall be made or purported to be made by the Purchaser unless firstly agreed to in writing by the Company and then only upon such terms as the Company agrees to in writing. Any cancellation, suspension or variation made or purported to be made by the Purchaser otherwise than in accordance with the provisions of this clause 14.1 shall be invalid.
14.2 Should the Company agree to a cancellation, suspension or variation of contract as mentioned in clause 14.1 which is in the complete discretion of the Company) then the terms of such agreement shall, as a minimum requirement, provide that the Purchaser shall be liable for and shall pay to the Company all the Company's costs, expenses and losses (including, without limitation, losses of profits) incurred or suffered as a result of or arising from such cancellation, suspension or variation.
14.3 Where goods or any part of them are manufactured, acquired or imported into Australia specifically for the Purchaser, then no cancellation, suspension or variation of contract by the Purchaser shall be permitted and the Purchaser must pay to the Company the full purchase price of such goods.
15.0 TESTS AND INSPECTION
15.1 Where the terms of the quotation include provision for inspection or tests of any description, any inspection or tests conducted shall be final and shall be conducted at the manufacturer's works unless otherwise agreed by the Company. The cost of any such inspection or test may be charged to and shall be borne by the Purchaser.
16.1 All drawings, catalogues and any printed matter accompanying any quotation or given to the Purchaser by whatsoever means before or after acceptance of any order by the Company arising from the Company are informative only and any weights, measurements, powers, capacities and other particulars of goods for any claim against the Company nor entitle the Purchaser to reject the goods or terminate or rescind the contract.
16.2 Any drawings or documents relating to the design or construction of any of the goods submitted by the Company to the Purchaser shall remain the exclusive property of the Company or the Company's supplier and the Purchaser shall not deal in any way with them including copy, reproduce, transmit or communicate the contents therein and shall treat them as confidential and shall not make use of the same except with the prior written consent of the Company. Such obligation shall provide the termination of any dealing between the Company and the Purchaser but shall cease when and only to the extent that the specifications have become public knowledge through no fault on the part of the Purchaser. The Purchaser shall take all steps as are necessary to ensure that its employees also observe such requirements as to confidentiality of the specifications.
16.3 If the goods are manufactured to the Purchaser's specifications, the Company undertakes the goods will be produced under quality control conditions which are in general acceptance world-wide for the production of goods of a like nature and the Company and the Purchaser agree to make any alteration or improvement in the design or specification of the Products which will improve the performance of the Products without altering their basic structure, design or nature.
16.4 Samples submitted by the Company are intended as a guide only to assist the Purchaser to determine the most suitable goods to order and do not constitute specific recommendations nor will the submission of any sample constitute any contract between the Company and the Purchaser as a sale by sample.
17.0 SHORTAGES, DAMAGE AND/OR LOSS IN TRANSIT
17.1 No claim for non delivery of part of a consignment or for damage in transit, corrosion, shortage or delivery deviation, delay or detention will be entertained unless a separate notice in writing is given to the carrier concerned within such time as enables a claim to be made upon the carrier and to the Company within three (3) days of receipt of the goods and a complete claim in writing is made to the Company within seven (7) days of receipt.
17.2 In the case of non delivery of a whole consignment, notice in writing must be given to the carrier concerned within such time as enables a claim to be made upon the carrier and to the Company within five (5) days of receipt of the invoice and a complete claim in writing is made within ten (10) days of such receipt.
17.3 Where goods are accepted without being checked, the delivery book of the carrier concerned must be signed "non examined"
17.4 The goods in respect of which any such claim is made shall be preserved intact as delivered for a period of fourteen (14) days from notification of the claim within which time the Company and the carrier shall have the right to attend at the Purchaser's works to investigate the complaint.
17.5 Any breach of any of the above sub-clauses shall disentitle the Purchaser to any claim whatsoever.
18.0 FORCE MAJEURE
18.1 The Company shall be entitled to cancel or rescind any contract for the supply of goods or services to the Purchaser without any liability for any loss or damage resulting there from if the performance of its obligations under any such contract is in any way affected by war, riot, restraint of government, strike, lockout, dispute with work people, shortened hours of labour, fire, accident, non availability of materials, goods or components, stoppage or interference with transport, compliance with government regulations or any cause which the Company has no power to avert (a force majeure event) and, in such event, until such time as the Company elects so to cancel or rescind any such contract, the obligations of the Company shall be suspended without any ability or any loss or damage for such suspension until the force majeure event no longer affects the performance of such obligations of the Company.
19.0 LEGAL CONSTRUCTION
19.1 All contracts entered into under the conditions herein shall take effect and be construed in all respects in accordance with the laws from time to time in force in the State of Queensland.
20.0 SEVERABILITY AND WAIVER
20.1 If any portion of these terms and conditions of sale shall be declared void or unenforceable by any Court or administrative body of competent jurisdiction such portion shall be deemed to be severed from the remainder of these terms and the conditions of sale the remainder of which shall continue in all respects to be binding upon the parties and shall be valid and enforceable.
20.2 The failure by the Company to insist upon strict performance of a right, power or privilege conferred by these terms and conditions of sale or any contract of which they form part or any of the provisions herein or in any contract arising herefrom shall not be deemed a waiver thereof or of any rights the Company has or may have against the Purchaser and no express waiver by the Company shall be deemed a waiver of any subsequent breach of the same or a similar provision.
21.1 In the event that:
(a) the Purchaser makes default in any payment hereunder; or
(b) the Purchaser commits an act of bankruptcy or being a company, has an order made by any competent court for or passes a resolution for its winding up or enters into a scheme of arrangement or has a receiver, receiver and manager, liquidator, provisional liquidator or administrator appointed to it or any of the events referred to in Section 459C(2) of the Corporations Law occurs; or
(c) the Purchaser breaches any term, covenant or condition in any other contract, agreement or understanding between the Purchaser and the Company; or
(d) if there is any contract, agreement or understanding between the Company and any related company (as that term is defined in the Corporations Law) or guarantor to the Purchaser, and the related company or the guarantor of the Purchaser breaches any term, covenant or condition of such contract, agreement or undertaking; or
(e) where a related company or any guarantor of the Purchaser commits any act, matter or thing which, if they were the Purchaser, would be a breach of these terms and conditions;
THEN all monies owing and outstanding to the Company on any account whatsoever irrespective of whether any due date as set out in the invoice has occurred shall become immediately due and payable. In addition, the Company may without prejudice to its other rights either suspend further deliveries, require payment in advance for such deliveries or terminate any contract or agreement made forthwith by notice to the Purchaser.
21.2 Notwithstanding the above clause, the Company may at all times at its sole and unfettered discretion and without being under any duty or obligation to assign reasons therefore, review, alter or terminate the Purchaser's credit limit or terms without notice and without limiting the generality thereof, the decision of the Company shall be final and the Company accepts no responsibility for any loss howsoever arising incurred by the Purchaser due to the operation of this clause.
22.0 FUTURE DEALING
22.1 Unless otherwise agreed to in writing by the Company and notwithstanding any terms appearing in documentation provided by or on behalf of the Purchaser, the terms appearing herein shall be incorporated by application into all agreements by the Company to supply the Purchaser with goods.
23.0 PATENTS AND TRADEMARKS
23.1 The Company makes no representation or warranty of any kind, express or implied, that the goods sold hereunder or the use of such goods or articles made therefrom either alone or in conjunction with other substances will not infringe any patent or trade mark rights. The Purchaser will forthwith notify the Company of any claim or suit involving the Purchaser in which such infringement is alleged and if the Company considers itself to be affected, it shall be entitled to completely control the defence or compromise of any such allegation of infringement.
23.2 Where the Company has arranged for a manufacturer to utilise a design or follow instructions relating to the manufacture of the goods provided by or on behalf of the Purchaser, the Purchaser hereby indemnifies and shall keep indemnified the Company from and against any and all claims, proceedings, judgements, damages, losses, costs, expenses or liabilities claimed against, incurred or suffered by the Company as a result of or arising from or a connection with any activity undertaken by the Company or third party in accordance with those instructions involving an infringement of a patent, trademark, registered or unregistered design, copyright or any other right whatsoever.
24.0 ENVIRONMENTAL MATTERS
24.1 Should any legislation, rule, regulation, convention or standard come into effect which imposes an obligation upon the Company to collect or recycle any of the goods sold by it to the Purchaser or pay any deposit, levy, tax or impost in respect thereof, then the Purchaser shall reimburse the Company a reasonable sum to compensate the Company for all of its costs and expenses so incurred in respect of the goods sold by it to the Purchaser and the Purchaser shall indemnify and keep indemnified the Company in respect of all such costs and expenses.
24.2 The Purchaser acknowledges that failure to observe this condition may cause injury to persons or property and the Purchaser hereby indemnifies and shall keep indemnified the Company from any claim, proceeding, judgement, damages, losses, costs, expenses or liabilities arising from any such injury, loss or damage.
25.0 ADVICE AND ASSISTANCE
25.1 Where the Company provides any technical advice or assistance whatsoever to a Purchaser including, without limitation, setting up bottling lines or other equipment for filling and/or handling bottles, no liability for any damage whatsoever shall attach to the Company in respect of such matters including, without limitation, damage arising out of or in connection with the negligence of the Company, its servants or agents or otherwise.
26.0 SERVICE CHARGES
26.1 The Company reserves the right to charge for delivery, handling an administration should the value of the invoice before taxes not exceed ten thousand dollars ($10,000) or such other sum as the company determines and notifies to the customer from time to time.