1.1. “PSP” means Port Stephens Packaging Pty Ltd (ABN 39 127 352 185) of 3 Shearwater Drive, Taylors Beach NSW 2316.
1.2. “Buyer” means the company or person/s buying the Goods as specified in any invoice, document or order, and if there is more than one, Buyer is a reference to each Buyer jointly and severally.
1.3. “Goods” means all goods or services supplied by PSP to the Buyer
1.4. “Price” means the price payable for the Goods as agreed between PSP and the Buyer in accordance with clause 3 below.
2.1. The Buyer, by placing an order for or accepting delivery of the Goods, is taken to have exclusively accepted and is bound by these terms and conditions together with any additional terms specified by PSP on any invoice or quotation.
2.2. These terms and conditions may only be amended with PSP’s consent in writing and will prevail to the extent of any inconsistency with any other document or agreement between Buyer and PSP.
3.1. At PSP’s sole discretion the Price will be either:
(a) As indicated on any invoice provided by PSP to the Buyer; or
(b) PSP’s quoted price which will be valid for the period stated in the quotation or otherwise for a period of seven (7) days.
3.2. At PSP’s sole discretion a non-refundable deposit may be required.
3.3. The Price will be payable by the Buyer on the date/s determined by PSP, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of instalments/progress payments in accordance with PSP’s payment schedule; or
(d) Failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Buyer by PSP.
3.4. Unless otherwise stated, the Price does not include GST. In addition to the Price the Buyer must pay to PSP an amount equal to any GST that PSP must pay for any supply by PSP under this or any other agreement for the sale of the Goods.
3.5. Payment may be made by cash; cheque; bank cheque; electronic/on-line banking; credit card (plus a surcharge of up to three percent (3%) of the Price); or by any other method as agreed to between the Buyer and PSP.
3.6. Should payment not be made in accordance with PSP’s payment terms, PSP may in addition to its other rights charge the Buyer weekly interest on the overdue amount based on the prevailing Commonwealth Bank of Australia base corporate overdraft rate for facilities over $100,000 plus 3%, calculated from the date payment was due to the date of full and final payment. Payment will be first credited against interest accrued. If the Buyer fails to pay any amount to PSP when due, PSP may in addition to any other rights, either suspend further deliveries of Goods or terminate any order(s) for Goods, in which event PSP will be entitled to payment from the Buyer for Goods already delivered and Goods on order or in the course of Delivery. PSP may withdraw or suspend credit facilities at any time without notice to the Buyer.
3.7. If the Buyer owes PSP any money then the Buyer must indemnify PSP from and against all costs and disbursements incurred by PSP in recovering the debt (including but not limited to administration fees, legal costs on a solicitor and own client basis, PSP’s collection agency costs, and bank dishonour fees).
4.1. Delivery of the Goods is taken to occur at the time that:
(a) the Buyer or the Buyer’s nominated carrier takes possession of the Goods at PSP’s address; or
(b) PSP or PSP’s nominated carrier delivers the Goods to the Buyer’s nominated address even if the Buyer is not present at the address.
4.2. At PSP’s sole discretion the cost of Delivery is either included in the Price or is in addition to the Price.
4.3. PSP may deliver the Goods in separate instalments. Each separate instalment will be invoiced and paid in accordance with the provisions in these terms and conditions.
4.4. Any time of date for Delivery given by PSP to the Buyer is an estimate only. The Buyer must accept Delivery of the Goods even if late and PSP will not be liable for any loss or damage incurred by the Buyer as a result of the Delivery being late.
4.5. If the Buyer cancels Delivery of the Goods the Buyer will be liable for any and all loss incurred (whether direct or indirect) by PSP as a result of the cancellation (including, but not limited to, any loss of profits).
5.1. Other than in respect of PSP’s obligations pursuant to clause 8 of these terms and conditions, PSP does not accept the return of any Goods. PSP may in its absolute discretion provide credits for the return of standard stock items provided the Goods are:
5.1.1. returned to PSP, at the Buyer’s cost within fourteen (14) days of initial delivery to the buyer; and
5.1.2. accompanied by a delivery docket stating PSP’s original invoice number and reason for return; and
5.1.3. returned in original packaging, undamaged and saleable.
5.2. A restocking fee of 20% of original net invoice value will apply to all Goods returned except where Goods are returned in accordance with clause 8 have been wrongly supplied or are faulty.
5.3. Goods ordered to your specification can not be returned for credit under any circumstance, other than in accordance with clause 8.
6.1. Risk of damage to or loss of the Goods passes to the Buyer on Delivery and the Buyer must insure the Goods on or before Delivery.
6.2. If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Buyer, PSP is entitled to receive all insurance proceeds payable for the Goods.
6.3. If the Buyer requests PSP to leave Goods outside PSP’s premises for collection or to deliver the Goods to an unattended location then such Goods will be left at the Buyer’s sole risk.
7.1. Ownership of the Goods will not pass until the Buyer has paid PSP all amounts owing to PSP.
7.2. Receipt by PSP of any form of payment other than cash will not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
7.3. If the Buyer does not make payment in accordance with 3, the Buyer irrevocably authorises PSP to enter any premises where PSP believes the Goods are kept and recover possession of the Goods.
7.4. PSP takes a security interest under the Personal Property and Security Act 2009 (Cth) (“PPSA”) in:
(a) all present and after acquired Goods including any services supplied by PSP in connection with the provision of those Goods;
(b) any proceeds of any sale of the Goods; and
(c) any proceeds of the insurance referred to in clause 5.2,
to secure (with equal priority) payment of all amounts that the Buyer owes to PSP.
7.5. The Buyer agrees that PSP may register (either or both) financing statements and financing change statements under the PPSA in any goods supplied by PSP to the Buyer.
7.6. The Buyer must promptly sign any further documents, provide any further information, or do any other things that PSP reasonably requires at the Buyers’ own expense to enable PSP to perfect and maintain the perfection of its security interest (including by registering a financing statement or financing change statement).
7.7. The Buyer must give PSP 14 days’ prior written notice of any change in the Buyer’s name, business practice or any other details, and use its best endeavours to ensure that any applicable financing change statement is registered disclosing the Buyer’s new details.
7.8. The Buyer agrees that any purchase by the Buyer on credit terms from PSP or retention of title supply pursuant to this clause 6 hereof will constitute a purchase money security interest (“PMSI”) as defined under section 14 of the PPSA. The PMSI granted herein will continue to apply to any Goods hereafter acquired or proceeds of sale arising from the sale of any of the Goods supplied by PSP under these terms and conditions.
7.9. The Buyer agrees to waive:
(a) the right to receive a verification statement confirming registration of a financing statement or a financing change statement relating to any security interest arising in connection with the supply of present and acquired Goods from PSP; and
(b) Rights under sections 95, 118, 121(4), 130, 135, 132(3)(d), 132(4) of the PPSA.
7.10. This clause 6 will survive the termination of the Contract to the extent permitted by law.
8.1. PSP will not under any circumstances be liable for any contingent, indirect, consequential or special losses (including but not limited to loss of profit or income, loss of business opportunity, business interruption, increased expense of operation or any financing and holding costs), damages or injuries arising directly or indirectly from the supply of Goods, whether in contract, tort, negligence, strict liability or otherwise, including (but not limited to) PSP’s negligence, default or misconduct even if informed of the possibility of such damages.
8.2. If the Buyer is not a Consumer (as that term is defined under Australian Consumer Law), to the extent permitted by law:
8.2.1. PSP will be under no liability to the Buyer for any loss or for damage to persons or property or for death or injury caused by any act or omission (including negligent acts or omissions) by PSP, its employees or contractors, wherever occurring, arising from the supply of Goods under these terms and conditions; and
8.2.2. PSP’s maximum liability which may arise under any principle of law (including but not limited to breach of contract, tort, negligence, or under an indemnity)) shall be limited and completely discharged by the payment of one dollar.
8.3. If the Buyer is a Consumer (as that term is defined under Australian Consumer Law), PSP’s liability for the failure to comply with a guarantee required under the Australian Consumer Law is limited as follows:
8.3.1. if the failure cannot be remedied or is a major failure as defined in the Australian Consumer Law (a “Relevant Failure”), PSP’s liability is as stated in the Australian Consumer Law in respect of that Relevant Failure;
8.3.2. if such failure is not a Relevant Failure, then in PSP’s absolute discretion:
(a) if the failure is in respect of services, PSP’s liability is limited to the supply of those services again or the payment of the cost of having those services resupplied;
(b) if the failure is in respect of Goods, PSP’s liability is limited to replacement of the Goods, the supply of equivalent goods, the repair of the goods or the cost of replacing the goods or having them repaired.
For all other liability arising in connection with these terms and conditions (including but not limited to breach of contract, tort, negligence or under and indemnity), then to the extent permitted by law, PSP’s liability is limited and completely discharged by the payment of one dollar.
8.4. The Buyer agrees to indemnify PSP’s against all losses and expenses which PSP’s may suffer or incur due to the Buyer’s failure to observe the obligations under these terms and conditions; and any claims made against PSP’s by any third party in respect of any loss,
damage, death or injury arising from the subject matter of these terms and conditions or the Goods supplied.
8.5. The Buyer agrees to release and hold PSP’s harmless from any liability whatsoever arising in connection with any dispute between PSP’s and the Buyer as to whether any interest registered on the Personal Property Security Register constitutes a valid security interest capable of being registered.
9.1. These terms and conditions any contract to which they apply will be governed by the laws of New South Wales, Australia, and are subject to the jurisdiction of the courts in that state.
9.2. If of any of these term and conditions are declared legally invalid or unenforceable, the provision should be read down to the minimum extent necessary to render it enforceable and valid, and if capable of being read down, it will be severed from the remainder of these conditions which shall not be affected by such severance.
9.3. PSP may in its absolute discretion, vary these terms and conditions at any time by notice in writing to the Buyer.