1.1 In these Terms:
(a) ACL means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended;
(b) Agreement means any agreement for the provision of goods or services by Tamper Evident to the Customer;
(c) Customer means the person, jointly and severally if more than one, acquiring goods or services from Tamper Evident;
(d) GST means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated Regulations as amended;
(e) PPSA means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended.
1.2 All goods and services (Products) supplied by Tamper Evident Pty Ltd (Tamper Evident) are supplied on these Terms & Conditions of Sale (Terms).
1.3 Unless otherwise agreed by Tamper Evident in writing, the Terms apply exclusively to every Agreement and cannot be varied or replaced by any other terms, including the Customer’s terms and conditions of purchase (if any).
1.4 Tamper Evident may vary or amend these Terms by written notice to the Customer at any time. Any variations or amendments will apply to quotes or orders placed after the notice date.
2.1 Unless stated otherwise all quotations are exclusive of GST and are open for acceptance for 30 days after the date of quotation.
2.2 The Customer must pay to Tamper Evident any applicable GST relating to the supply of the Products.
2.3 Tamper Evident reserves the right to revise a quotation at any time prior to acknowledging in writing any order placed upon it.
2.4 If the Customer requests any variation to the Agreement, Tamper Evident may increase the price to account for the variation.
2.5 Where there is any change in the costs incurred by Tamper Evident in relation to goods or services, and Tamper Evident proposes to increase its price to take account of any such change, it must notify the Customer and the Customer may:
(a) accept the change in price, and continue under the Agreement; or
(b) reject the change in price, and cancel the Agreement.
3. ORDER ACCEPTANCE
3.1 No order is binding on Tamper Evident until accepted by it.
3.2 Tamper Evident reserves the right to accept or refuse any order in whole or in part.
3.3 Where Tamper Evident makes a part delivery of any order such delivery shall constitute a separate contract.
3.4 No order may be cancelled or varied by the Customer after acceptance by Tamper Evident, except by mutual agreement.
4.1 Unless otherwise agreed in writing:
(a) Where credit approval has not been granted or is withdrawn, payment for all Products supplied by Tamper Evident must be made prior to dispatch.
(b) Where credit has been granted, payment for the Products is to be made on or before 30 days from the date of invoice. Payment must be made in full without set-off or deduction. Tamper Evident will investigate any disputed amounts and if resolved in favour of the Customer, a credit will be issued to the Customer.
(c) All credit orders are accepted by Tamper Evident subject to satisfactory credit approval of the Customer and are governed by Tamper Evident's credit terms and conditions in force at the time of order placement, including the right to charge interest.
4.2 Credit approval once granted may be withdrawn at any time.
4.3 Payment terms may be revoked or amended at Tamper Evident’s sole discretion immediately upon giving the Customer reasonable written notice.
4.4 The time for payment is of the essence.
5. PAYMENT DEFAULT
5.1 If the Customer defaults in payment by the due date of any amount payable to Tamper Evident, then all money which would become payable by the Customer to Tamper Evident at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Tamper Evident may, without prejudice to any of its other accrued or contingent rights:
(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4% for the period from the due date until the date of payment in full;
(b) charge the Customer for, and the Customer must indemnify Tamper Evident from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover any goods;
(c) cease or suspend supply of any further Products to the Customer;
(d) by written notice to the Customer, terminate any uncompleted contract with the Customer.
5.2 Subject to any applicable statutory stay of proceedings, clauses 5.1(c) and 5.1(d) may also be relied upon, at Tamper Evident's option:
(a) where the Customer is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
(b) where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
6. TITLE TO PRODUCTS
6.1 Until Tamper Evident receives full payment in cleared funds for all Products supplied by it to the Customer, as well as all other amounts owing to Tamper Evident by the Customer:
(a) title and property in all goods remain vested in Tamper Evident and do not pass to the Customer;
(b) the Customer must hold the goods as fiduciary bailee and agent for Tamper Evident;
(c) the Customer must keep the goods separate from its goods and maintain Tamper Evident’s labelling and packaging; and
(d) in addition to its rights under the PPSA, Tamper Evident may without notice, enter any premises where it suspects the goods are and remove them, notwithstanding that they may have been attached to other goods not the property of Tamper Evident, and for this purpose the Customer irrevocably licences Tamper Evident to enter such premises and also indemnifies Tamper Evident from and against all costs, claims, demands or actions by any party arising from such action.
6.2 Risk in the Products will pass to the Customer on delivery.
6.3 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use, installation or possession of any of the Products sold by Tamper Evident, unless recoverable from Tamper Evident on the failure of any statutory guarantee under the ACL.
7. PERSONAL PROPERTIES SECURITY ACT
7.1 Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.
7.2 For the purposes of the PPSA:
(a) these Terms are a security agreement and Tamper Evident has a Purchase Money Security Interest in all present and future goods supplied by Tamper Evident to the Customer and the proceeds of the goods;
(b) the security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and
(c) the Customer must do whatever is necessary in order to give a valid security interest over the goods which is able to be registered by Tamper Evident on the Personal Property Securities Register.
7.3 The security interest arising under this clause 7 attaches to the goods when the goods are collected or dispatched from Tamper Evident's premises and not at any later time.
7.4 To the extent permitted by the PPSA, the Customer agrees that:
(a) the provisions of Chapter 4 (enforcement of security interests) of the PPSA which are for the benefit of the Customer or which place obligations on Tamper Evident will apply only to the extent that they are mandatory or Tamper Evident agrees to their application in writing; and
(b) where Tamper Evident has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
7.5 The Customer must immediately upon Tamper Evident's request:
(a) do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and
(b) procure from any person considered by Tamper Evident to be relevant to its security position such agreements and waivers (including as equivalent to those above) as Tamper Evident may at any time require.
7.6 Tamper Evident may allocate amounts received from the Customer in any manner Tamper Evident determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by Tamper Evident.
7.7 For the purposes of section 275(6) of the PPSA, the parties agree and undertake that these Terms and any information pertaining to the sale of the Products and details of the Products shall be kept confidential at all times.
8.1 Any period or date for delivery stated by Tamper Evident is an estimate only and not a contractual commitment. Tamper Evident will use its reasonable endeavours to meet any estimated dates for delivery but will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date.
8.2 Delivery is deemed to occur at the point of dispatch from Tamper Evident's premises.
8.3 Where prices are stated as inclusive of delivery, delivery is to the delivery point specifically accepted by Tamper Evident.
8.4 Tamper Evident reserves the right to charge the Customer for delivery of the Products at any time, notwithstanding that it may not have previously done so.
8.5 Administrative fees may also be charged to the Customer for orders under certain dollar values.
9.1 Without limiting the Customer's rights under the ACL, any Products which:
(a) are damaged or defective; or
(b) are not in accordance with the Customer's order
may be returned to Tamper Evident within 7 days of receipt by the Customer.
9.2 The Customer may return products to Tamper Evident and obtain a credit:
(a) except for specially purchased Products or Products specifically tailored for the Customer's requirements;
(b) provided that the Customer does so within 7 days of delivery and a return authorisation is obtained from Tamper Evident;
(c) provided that the Products are in their original form and otherwise as new and in a saleable condition;
(d) at the Customer's own expense, or to the Customer's account; and
(e) on the basis that risk in the Products remains with the Customer until the Products are received by Tamper Evident and that a reasonable restocking or return fee may be charged.
9.3 Notwithstanding the provisions of this clause 9 Tamper Evident will not accept returned Products where the Customer has caused the Products to become unmerchantable or failed to take steps to prevent the Products from becoming unmerchantable or the Products have become damaged by abnormal use whilst in the possession of the Customer.
10.1 Except as the Terms specifically state, Tamper Evident gives no express warranty in relation to Products supplied to the Customer, and the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services or any contractual remedy for their failure.
10.2 If the Customer is a consumer nothing in these Terms restricts, limits or modifies the Customer's rights or remedies against Tamper Evident for failure of a statutory guarantee under the ACL.
10.3 Tamper Evident is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
10.4 The Customer acknowledges that:
(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by Tamper Evident in relation to the goods or services or their use or application.
(b) it has not made known, either expressly or by implication, to Tamper Evident any purpose for which it requires the goods or services and it has the sole responsibility of satisfying itself that the goods or services are suitable for the use of the Customer.
10.5 Nothing in the Terms is to be interpreted as excluding, restricting or modifying the application of any non-excludable State or Federal legislation relating to the sale of goods or supply of services.
11. FORCE MAJEURE
11.1 Except for as provided in Clause 11.2, neither party is liable in any way howsoever arising under the Agreement to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts or threats of terrorism or war. If an event of force majeure occurs, either party may suspend or terminate the Agreement by written notice to the other party.
11.2 Clause 11.1 does not operate to excuse the Customer from any obligation to pay money to Tamper Evident.
12.1 The law of Victoria from time to time governs the Terms. The parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
12.2 Tamper Evident’s failure to enforce any of these Terms shall not be construed as a waiver of any of Tamper Evident’s rights.
12.3 If a clause is unenforceable it must be read down to be enforceable or, if it cannot be read down, the term must be severed from the Terms, without affecting the enforceability of the remaining terms.
12.4 The Customer must comply with the Australian Privacy Principles in connection with any personal information supplied to it in connection with this Agreement.