AXIS PACKAGING PTY LTD
T/A AXIS INDUSTRIAL
TERMS & CONDITIONS OF SALE
These terms and conditions (Conditions) will form the agreement (Agreement) between you (Customer) and us (Company).
- Basis of the Agreement
- These Conditions apply to two types of activity by the Company:
- the performance of packaging Services in respect of Goods belonging to the Customer, including the supply of Packaging Materials; and
- the supply of Products by the Company to the Customer, which are either Bedding Products or Non-Bedding products or both.
- The Conditions apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or the course of dealing.
- The Customer acknowledges that it has read and understands these Conditions and all other parts of this Agreement and the Customer agrees to be bound by these Conditions.
- This Agreement constitutes the entire agreement between the Customer and the Company regarding the subjects that it deals with, and the Customer acknowledges that the Customer has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Agreement. Any drawings, descriptive matter, or advertising material issued by the Company and any descriptions, illustrations contained in the Company’s catalogues, brochures, or website (Marketing Materials), are issued, or published for the sole purpose of giving an approximate idea of the Services described in them. The Marketing Materials do not form part of this Agreement (or any other agreement) between the Customer and the Company for the provision of the Services.
- This Agreement replaces all earlier or pre-existing agreements between the Customer and the Company.
- All Services and Products provided by the Company to the Customer are subject to these Conditions.
- In the event of any, or to the extent of any inconsistency, between these Conditions and any terms or conditions incorporated into a bill of lading, waybill, consignment note, or other transport document issued by the Company or by any third party in course of providing the Services and Products, these Conditions will prevail.
- The following words will have special meaning in this Agreement, as follows.
- ACL means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (formerly the Trade Practices Act 1975).
- Agreement means these Conditions together with the Quote, Order Confirmation or Tax Invoice and any other document incorporated into the Quote, Order Confirmation or Tax Invoice or these Conditions.
- Bedding Product means a product that is a wooden, constructed bedframe.
- Business Day means a day other than a Saturday, Sunday, or public holiday in Western Australia.
- Company means AXIS Packaging Pty Ltd (ACN 164 207 023) trading as AXIS Industrial Solutions.
- Conditions means these terms and conditions as amended from time to time by the Company, in the version current at the time the Agreement is made. Note: the specific version is indicated in the footer of this document.
- Customer means the person or entity identified as such in the Quote, Order Confirmation, or Tax Invoice, including its legal successors or personal representatives.
- Goods means the Customer’s goods (including any part thereof) accepted by the Company for the purpose of performing the Services.
- GST means the goods and services tax imposed by the GST law.
- GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- Non-Bedding Product means a product other than a Bedding Product and includes Packaging Materials.
- Quote means a written quote or estimate from the Company to the Customer including a price or fee for performance of the Services or delivery of the Products, for acceptance by the Customer and submission of a Purchase Order made on that basis.
- Order Confirmation means a written Confirmation of a Customer’s Purchase Order from the Company to the Customer including a price or fee for performance of the Services or delivery of the Products.
- Tax Invoice means a written Tax Invoice from the Company to the Customer including a price or fee for performance of the Services or delivery of the Products completed, in compliance with GST law.
- Packaging Materials means the packaging materials supplied by the Company in connection with the Services.
- Party refers to either the Company or the Customer, and parties refers to both, except in the phrases “third party” or “third parties”.
- Products refers to products that the Company sells or resells to the Customer, being Bedding Products and/or Non-Bedding Products.
- Purchase Order means the Customer’s request to the Company for Services and/or Products made in such form reasonably requested by the Company.
- Sample means a sample Product item for which the Customer has not paid any price, and which is provided by the Company to the Customer as an obligation-free gift.
- Services includes all professional, commercial dealings by the Company with the Goods including handling the Goods for the purpose of packaging of the Goods with the Packaging Materials.
- A reference to a “person” includes a natural person, a corporate or unincorporated body (whether or not having separate legal personality), a trust, and any other non-natural legal person recognised by law as having contracting capacity.
- A reference to a “party” includes its personal representatives, successors or permitted assigns.
- A reference to a statute or statutory provision:
- is a reference to such statute or provision as amended or re-enacted from time to time; and
- includes any subordinate legislation made under that statute or statutory provision as amended or re-enacted.
- Any singular reference includes the plural and vice versa and the word ‘including’ means ‘including, but not limited to’, and the word ‘includes’ means ‘includes’ without any limitation”.
- The terms set out in any appendixes to these Conditions form part of these Terms & Conditions.
- The Company
- The parties acknowledge that the Company is a packaging company and packages Goods as well as manufactures and/or supplies customised timber, plastic, and metal packaging solutions.
- The Company is not a common carrier, but may load, unload, perform or provide transport services for the Customer by agreement without accepting any liability as a common carrier.
- Quotes and Pricing
- The cost of the Services or Products is calculated by the Company and set out in the Quote according to the Customer’s instructions or information. A Quote specifying the price for Services or Products is provided by the Company to the Customer.
- The Quote price and/or fees will be exclusive of GST if GST applies, but any applicable GST or GST exemption will be shown on the Quote. The amount of GST to be applied to the Purchase Order will be confirmed in the Order Confirmation and Tax Invoice supplied to the Customer after acceptance of the Purchase Order by the Company.
- All quotations for fees or prices shown in a Quote are valid for the period stated on the Quote. No oral or email indication of fees or prices will be binding on the Company unless and until it is confirmed by the Company formally via a written Quote.
- The Company reserves the right to:
- accept or refuse to provide Services or supply Products to a Customer in the Company’s sole discretion; and
- change or correct fees or prices in a Quote by giving the Customer TWO Business Days’ notice of the change.
- Purchase Order
- The Customer must submit a Purchase Order to the Company within the time limit stated in the Quote, after which the Quote will expire, unless otherwise agreed by the Company.
- When the Company receives the Purchase Order from the Customer the Company will:
- provide or confirm an estimated time frame (if required) for the provision of the Services or supply of the Products; and/or
- supply an Order Confirmation matching the fees or prices stated in the Quote and/or PO; and
- supply a Tax Invoice matching the fees or prices stated in the Quote and/or PO.
- The Company will use its reasonable endeavours to meet dates estimated for the provision of the Services and/or delivery of the Products, but the Company will not be liable for any loss or damage suffered by the Customer or any third party for failure by the Company to meet the estimated Service or delivery date. The Customer acknowledges that the Company’s capacity to meet any estimated delivery date or time is affected by many factors outside the Company’s knowledge, control, or influence.
- (a) The Customer will pay for the Services and/or Products in any reasonable manner specified in the Quote, or as otherwise agreed in writing with the Company.
(b) The Company may request the Customer to pay a deposit for Products or Services or may extend credit on such terms as the Company considers fair in its sole discretion.
- If a Customer does not pay a Tax Invoice in full and in accordance with clause 6.1 above, the Company may at its sole discretion:
- make a demand for the immediate payment of the outstanding amount by the Customer to the Company.
- apply an amount of penalty interest of 6% to the outstanding amount to cover the Company’s administrative fees and costs associated with storage of the Customer’s Goods; and
- claim any reasonable costs of collecting such outstanding monies from the Customer, including debt collector’s fees and legal costs.
- Security, Transfer of Risk and Transfer of Title
- The Customer hereby grants to the Company a security interest registrable under the PPSA for all unpaid-for Products supplied by the Company to the Customer; and:
- in its discretion may register the security interest; and
- will discharge the interest when all outstanding monies claimable under these Conditions in connection with the supply of the Products have been received in cleared funds.
- Title in the Products will transfer to the Customer when the Products are paid for, and the risk of loss transfers to the Customer when the Products leave the Company’s premises, provided that:
- if the Customer does not pay in full for the Products, the Company will be under no obligation to accept those Products back from the Customer.
- if the Company has possession of the Products after title has transferred to the Customer, the Company will use its best efforts to handle and/or store the Products with due care; and
- if the Company has the Customer’s Goods in the Company’s possession while performing Services involving the Products; then the Company will have a security interest (lien) over those Goods until the Products and/or relevant Services have been paid for in full, and may hold, store, return or dispose of the Goods as permitted by law.
- Risk of loss; Release; and Insurance
- The Customer agrees that Company’s liability for loss to the Goods while at the Company’s premises is capped at the limits of the Company’s insurance policies, and the Customer agrees that all risk of loss more than these limits, and/or incurred outside of the Company’s premises, rests with the Customer always.
- The Customer agrees that the Company will have no liability to the Customer for any loss or damage to the Products or the Goods for more than the capped limits of the Company’s insurance policies, and outside of the circumstances, specified in clauses 7.2 and 8.1, and the Customer hereby releases the Company from liability for all losses, damages or claims outside the capped limits and circumstances. In particular, the Customer agrees that the Customer will bear any loss or damage to the Goods or Products while in transit to or from the Company’s premises without recourse to the Company.
- The Services are provided to the Customer on the basis that the Customer has obtained all necessary permits or licences under all applicable laws, codes, and regulations in respect of the transit to or from, and the placement or holding of the Goods at the location where the Services are performed, and the Customer agrees to obtain all such permits or licences.
- The Customer assumes all risk and liability for any loss, damage, or injury to any person (including the Customer) or their property arising from the use, installation, or possession of Packaging Materials after the Products and/or Services have been provided by the Company, unless recoverable from the Company on the failure of any statutory guarantee under the ACL.
8.5 The Customer agrees to ensure all risks and liabilities that it assumes under clauses 7, 8, 9 & 10 are adequately insured.
- Loss or Damage to Goods in Transit
- Subject to clause 9.2, the Company is not responsible for:
- any loss or damage to the Goods while in transit at the direction of the Customer or its agent(s) while shipping to or from the Company’s premises, regardless of whether or not any Product (in particular any Packaging Materials) contains the Goods or is included with the Goods; and/or
- loss, damage, or defects to the Goods which have been caused by the improper storage, packing, warehousing or transportation by the Customer or its agents, or by any neglect, abuse or improper use by the Customer or its agents.
- Where any Goods have been damaged by the negligence of the Company while delivering the Services, clause 9.1 does not apply to the extent that the Customer’s loss is proved to have resulted from that negligence, provided that:
- the Company will not be liable for any loss flowing from the Company’s modification or removal of the original packaging of the Goods, or the substitution of that original packaging with Packaging Materials, provided that those actions are necessary to deliver the Services; and
- the Customer acknowledges that the Company does not independently know and cannot predict any incompatibility between the Goods and the Products, or the Packaging Materials used in providing the Services, and the Customer relies entirely on the Customer’s own judgment about these matters when ordering the Services and/or Products and alone bears all liability and loss for any such incompatibility and its consequences.
- If the Company is or becomes unable to provide the exact Services or Products ordered by the Customer, then the Company may cancel the Customer’s Purchase Order, or at its option, and with the Customer’s approval, supply similar Services or Products of equivalent quality and/or performance.
- If the Customer wishes to cancel a Purchase Order and the Company agrees to the cancellation of that Purchase Order the Customer will be liable for the full cost of the Purchase Order or any lesser amount determined by the Company.
- Without prejudice to any of the Company’s rights under this Agreement, if the Customer does not make the payment due and payable to the Company in accordance with clause 6 of these Conditions, the Company in its sole discretion, Customer, and without any liability to the Customer, may:
- refuse to provide the Services or Products or any further Services or Products to the Customer; and/or
- immediately terminate this Agreement with the Customer, on notice to the Customer.
- Liability and Warranties
- In addition to any limitations or conditions set out in clauses 7 or 8 or any other parts of these Conditions, the following provisions control the liability of the Company (including any liability for acts or omissions of its employees, agents, and sub-contractors) to the Customer in respect of:
- any breach of these Conditions;
- any use made or resale of the Packaging Materials by the Customer; and
- any representation, statement or tortuous act or omission including negligence of the Company arising under or in connection with the Agreement.
- All warranties, conditions and other terms implied by statute or common law (save for conditions implied by sections 51 to 53 inclusive of the Competition and Consumer Act 2010) are, to the fullest extent permitted by law, excluded from the Agreement, and:
- in the case of Non-Bedding Products, the provisions set out in Appendix A apply to those products;
- in the case of Bedding Products, the provisions set out on Appendix B apply to those products; and
- the notification and claim procedures described in Appendix C will apply to both Bedding and Non-Bedding Products.
- Nothing in these Conditions will limit or exclude the Company’s liability for:
- death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
- fraud or fraudulent misrepresentation;
- breach of any term that may be implied in these Conditions under sections 51 to 53 inclusive of the ACL;
- defective products as imposed by the ACL as it relates to any Products (including Packaging Materials) used in conjunction with the provision of the Services); or
- any omatter in respect of which it would be unlawful for the Company to exclude or restrict liability.
- Subject to the conditions in 12.1 to 12.3, the Company:
- is not liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect or consequential loss of profit or of business or depletion of goodwill arising under or in connection with any breach by the Company of its obligations under the Agreement (howsoever caused);
- the Company’s total liability to the Customer in respect of all other losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by a deliberate breach of the Agreement by the Company, its employees, agents, or subcontractors (if applicable) is limited to the limit oof any consequent claim allowed by the Company’s relevant insurer; and
- the Customer acknowledges and agrees that it has had the opportunity to verify the extent and adequacy of the Company’s insurance coverage, and that clause 12.4(b) is reasonable because it would be commercially unviable for the Company to accept an unlimited, uninsured risk under this Agreement.
12.5 Subject to clauses 12.8 and 12.9 below, if the Product is a Non-Bedding Product, the provisions set out in Appendix A will apply to it.
12.6 Subject to clauses 12.8 and 12.9 below, if the Product is a Bedding Product, the provisions set out in Appendix B will apply to it.
12.7 The provisions set out in Appendix C will apply to both Bedding Products and Non-Bedding Products.
12.8 If a Product item is a Sample, then:
(a) there is no contract of sale for that item, and, accordingly, and subject to any law to the contrary, no warranties given by the Company under this Agreement will attach to a Sample;
(b) if a Sample is provided at the same time as paid-for Products, the Sample is not included in the sale of the paid-for Products, but is provided separately;
(c) the Company makes the following express representations, and no other representations (express or implied) regarding the Sample:
(1) to the best of the Company’s knowledge, the Sample is representative of the stock of Products represented by the Sample that the Company holds and sells.
(d) if the Sample is a sample of a Product made from materials the quality of which cannot be guaranteed by its manufacturer or supplier, or which is not in the ordinary course of commerce subjected to accurate or quality measurements or tests, such as milled timber, then the representations made by the Company at (c) above are modified accordingly.
12.9 Samples of Products will be provided by the Company to the Customer on request by the Customer, and:
(a) when making such a request, the Customer will follow any reasonable procedure required by the Company; and
(b) the Customer agrees that every Sample is provided by the Company only for the Customer’s inspection, and the Customer uses or relies upon any Sample entirely at the Customer’s own risk.
12.10 If the Customer has communicated to the Company that the Customer approves the design of the Product or a Sample, then:
(a) the Customer will be bound by the terms of that communication, which will be incorporated into this Agreement;
(b) the Customer will not object to the design and the Product being unfit for purpose or to the quality and specifications of Product if it conforms with the Sample; and
(c) the Customer hereby releases the Company from any liability for any losses, damages or claims incurred or experienced by the Customer, including by its principals, parent entity, or business associates, because of the Product’s or Sample’s design.
- Force Majeure
- If the performance or observance of the Company’s obligations under this Agreement is prevented, restricted or affected by a force majeure event including strike, lock out, industrial dispute, raw material shortage, breakdown of plant, transport or equipment or any other cause beyond the Company’s reasonable control, the Company will notify the Customer of the cause and after 30 days of the Customer’s receipt of that notice this Agreement may be terminated by either the Company or the Customer without penalty.
- Subject to the Company’s legal obligations to the Customer, the Customer hereby authorises the Company to copy, disclose, distribute, or otherwise use the Customer’s information at the Company’s sole discretion, whether for commercial or non-commercial purposes and without liability or compensation to the Customer or any other person or entity.
- Confidential Information
- The Customer acknowledges that the Company has disclosed and may from time to time disclose to the Customer certain non-public confidential information and documentation about the Company’s Services, marketing, prices and fees, and information about the Company’s trade secrets and intellectual property, (Confidential Information).
- The Customer must:
- only use the Confidential Information solely for the purposes contemplated by this Agreement; and
- not during the term of this Agreement or at any time after this Agreement has come to an end, disclose (whether indirectly or directly) to any third party the Confidential Information, other than what may be required to be disclosed under law, without the Company’s express, written consent.
- Marketing Materials
- Any information provided in the Company’s Marketing Materials including all testimonials from customers, is intended to provide general information only.
- Whilst the Company takes all reasonable care to include accurate and up-to-date information to the Customer including in the Marketing Materials, the information provided in the Marketing Materials should not be relied upon by the Customer as being error free or accurate in all aspects.
- The Company makes no representation or warranty as to the currency, reliability, accuracy, or completeness of any Marketing Materials, nor does the Company accept any responsibility arising in any way for errors or omissions in the Marketing Materials.
- All information provided in the Company’s Marketing Materials is provided “as is” without warranty of any kind, either express or implied, to the fullest extent permitted by law.
- In no event will the Company be liable to the Customer or any person claiming through the Customer for any losses, damages or claims arising from the Customer’s reliance upon the Marketing Materials.
- The Company will use its reasonable efforts to ensure that all fees and prices for Services and Products displayed in the Company’s Marketing Materials are current and that any standards or specifications are accurately described.
- The Customer acknowledges that not every Product as described in the Company’s Marketing Materials will be suitable for the Customer’s proposed use(s), and unless otherwise stated in writing by the Company, the Company does not make or give any warranty that the Products described in the Company’s Marketing Material are fit for any particular purpose required by the Customer.
- The Company reserves the right to revise, change and modify:
- its fees for providing the Services and its prices for supplying the Products as specified or referred to in the Marketing Materials, without any prior notice to the Customer; and
- these Conditions, which are available in their latest form on the Company’s website www.axisindustrial.com.au
- The Customer is bound by any revisions, changes or modifications to these Conditions made by the Company, from the time of the next Order submitted by the Customer, unless the change is made to comply with the law, in which case from the time of notification to the Customer. The Customer is urged to review the downloads tab each time the Customer visits the Company’s website to ensure that the Customer has the most up-to-date information concerning the cost of Services and Products. Any modifications to the Conditions will apply to the Customer from the next Quote provided to, or Purchase Order submitted by, the Customer.
- Applicable Laws
- This Agreement is governed by the laws of the State of Western Australia.
- The parties submit to the non-exclusive jurisdiction of the courts of Western Australia in all matters arising under this Agreement.
- Dispute Resolution
- If a dispute arises between the Company and the Customer in connection with this Agreement, then, before resorting to litigation (except for urgent injunctions), the party claiming to be aggrieved must give the other party a notice specifying the nature of the dispute and requesting its resolution under this clause.
- Following service of notice of the dispute under clause 19.1, the parties will negotiate within seven days in good faith with a view to resolving the dispute.
- If the dispute is not resolved by negotiation under clause 19.2 within a further 14 days, either party may, and the parties must refer the dispute to a mediator selected by the responsible officer of the Chamber of Commerce and Industry of Western Australia. The parties will participate in the mediation in good faith with a view to resolving the dispute, will be equally responsible for the mediator’s fees, and will each bear its own costs of participating in the mediation.
- If a dispute is not resolved by mediation within 28 days of commencement of mediation under clause 19.3, then either party (but not before the expiration of the 28 days) may take such other action as the law permits to resolve the dispute.
Special Provisions Applying to Non-Bedding Products
A1. Any Packaging Materials supplied by the Company are supplied on the basis that the Company is not liable in any way for the consequences of any re-use of those materials by the Customers, or for any loss to the Customer or any other person resulting by any packing of any items (including Goods) into or using the Packaging Materials which is not performed by the Company. For the avoidance of doubt, the Customer agrees that the Company is liable only for the quality of work that it performs itself.
A2. The Customer assumes all responsibility for damage to persons or property arising from the re-use of any Packaging Materials supplied with the Services.
A3. The Customer acknowledges that, all due to different possible reactions of the materials comprised in Goods when combined with, or placed in contact with, other substances, in particular, any chemically active ingredients including essential oils that may be in the Packaging Materials, the Goods may react poorly or unpredictably with the Packaging Materials, which may damage or cause defects in either the Goods or the Packaging Materials or both. The Company does not guarantee that the particular Packaging Materials supplied in conjunction with the Services will necessarily function as anticipated by the Customer, or interact harmlessly with the Goods, or function properly after such interaction.
A4. At the Customer’s request, and subject to availability, the Company may supply a Sample of the Packaging Materials to be used in providing proposed Services (free of charge) to the Customer to enable the Customer to consider the compatibility of the Goods with the Packaging Materials before it proceeds further with receiving the Services. The provision of such a Sample will be subject to clause 12 above.
A5. It is the Customer’s responsibility to ensure that its Goods are compatible with the Packaging Materials proposed to be used by the Company in the provision of its Services.
Special Provisions Applying to Bedding Products
B1. The Company does not provide any express warranty in relation to Bedding Products.
B2. The Customer agrees that paragraph B1 is reasonable because Bedding Products:
- may be subjected to damage through misuse, abuse, overuse, accident or neglect, including during transportation and handling, which cannot be controlled or prevented by the Company;
- could be used for any purpose other than the purpose for which they were designed;
- could be altered or modified, or repaired incorrectly, or in some manner that negatively affects their integrity or durability;
- could be improperly stored, loaded onto a vehicle, installed, fitted or combined with another object, or be improperly installed as a fixture in a building, or be improperly maintained;
- could be subjected to temperature variations, excessive loads, stresses, dampness, high humidity, chemicals or corrosives, vapours, weathering, violent movements and any other usage or environmental factors that weaken or damage their structure, integrity, materials, or components; or
- could be damaged by some other abusive practice or catastrophic occurrence.
Notification and Claims Procedure
C1. In the event that the Customer wishes to claim that the Company has breached any warranty applying under this Agreement to a Non-Bedding Product or Bedding Product, the Customer agrees to follow the procedures set out in this Appendix C.
C2. The Customer must gather sufficient evidence that the relevant product is defective in a manner for which the Company is liable, and present this to the Company. This evidence must include photographs wherever possible.
C2. If requested by the Company, a responsible principal or employee of the Customer will complete a statutory declaration setting out all details of the alleged defect, and a history of the use and handling of the Product by the Customer.
C3. The Customer must give the Company a reasonable opportunity to inspect and test the allegedly defective Product.
C4. If the Company and Customer are unable to agree on the extent or value of the Customer’s alleged loss arising from the allegedly defective Product, they will appoint an independent expert to conduct the valuation and will share the cost of that valuation equally.
C5. Further and subject to clause 12.4, if the Company accepts that the relevant warranty given under this Agreement or imposed by law has been breached in respect of any Product, the Company, at its sole option, will either offer to refund to the Customer the purchase price paid for the relevant Product, or replace the Product with an equivalent item.
C6. Further to clause 12.4, the Company will not be liable to the Customer or any person claiming through the Customer for any incidental, indirect, consequential, or special damages in respect of any breach of any warranty in relation to Products that the Company gives in this Agreement.
VERSION 8 – LAST UPDATED 10/09/2021