Unless otherwise agreed in writing with Ward Packaging (ABN 33 009 250 033) (Ward), its agents or assigns or related entities, the Credit Application, these Terms of Supply, and any quotations or invoices (collectively, the Terms) apply to the sale of the Products to the Customer, and constitute the entire agreement between Ward and the Customer.
1. Definitions
Ward means Ward Packaging Pty Limited (ABN 33 009 250 033);
Costs means all moneys payable by the Customer to Ward in relation to supply of the Products; Credit Application means a credit application submitted to Ward by the Customer;
Credit Account means the credit facility/account provided by Ward in accordance with an accepted Credit Application;
Customer means the individual, business, partnership, trust or corporate entity (jointly and severally if there is more than one) and their agents or assigns or related entities to whom the Products are sold or supplied;
Driver means a driver, courier or other delivery person engaged by Ward to deliver Products; Fees means the purchase price for the relevant Products, as set out in a quotation, invoice or otherwise agreed with Ward;
GST means the Goods and Services Tax assessable under GST Law;
GST Law means a New Tax System (Goods and Services Tax) Act 1999, a New Tax System (Goods and Services Tax Transition Act) 1999 and all associated legislation, subordinate legislation and administrative rulings;
Invoice means an invoice issued to the Customer by Ward;
Products means products supplied to the Customer by Ward, and includes disposable food service items, packaging and hygiene supplies;
PPSA means the Personal Properties Securities Act 2009 (Cth); and
Supplier means a supplier of Products to Ward.
2. Ordering
2.1 The Customer may order Products from Ward by completing, executing and sending Ward a purchase order (Order). An Order can also be placed via telephone, email, online or via the Customer's company representative and the signed proof of delivery will confirm the Order.
2.2 In placing the Order, the Customer agrees to be bound by these Terms of Supply and agrees that if there is any inconsistency between the Terms of Supply and an Order, the Terms of Supply will govern to the extent of any inconsistency.
2.3 The supply of Products by Ward to the Customer is subject to the suppliers' ability to supply sufficient quantities and types of Product to Ward.
3. Home Deliveries
Ward can only deliver to a private residence on the following terms:
(a) the Customer explicitly gives Ward authority to leave the goods in a safe place which the Customer must specify when ordering in case no-one is present at the time of delivery. If no location or safe place is specified, then the Customer authorises our Driver to leave the Products where they reasonably determine.
(b) Ward is not responsible for the safety of the Products and the Customer accepts the Driver's confirmation as absolute confirmation that the goods have been delivered.
(c) If the Driver is unable to leave the Products in a safe place, they may, at their discretion, return the Products to Ward. If this occurs, the Customer agrees to be liable for a redelivery fee as charged by Ward and/or the Driver.
(d) The Customer acknowledges that all PLA cold cups, straws, deli bowls and lids are extremely heat sensitive, and such should not be left outdoors.
(e) If the Customer is unable to immediately move these Products indoors after delivery, Ward will not accept responsibility should these Products be damaged due to heat exposure because of them left being unattended.
4. Pricing and Payment
4.1 The Fees are as set out in Ward's most recent price list, quotation, facsimile, email or invoice.
4.2 Freight, handling and insurance costs if required are in addition to the Fees and will be shown separately on Ward invoices.
4.3 Ward may alter any prices of Products without prior notice to the Customer.
4.4Ward will invoice the Customer for the Fees, including any amounts due at the times specified in the Order, specifying how those amounts are calculated.
4.5The Customer must pay each Ward Invoice in full on the day of delivery unless otherwise agreed to in writing.
4.6 Ward will, at its sole discretion, issue the Customer a credit limit and terms for payment of 14 days from the end of the month in which the relevant Invoice is issued. The Customer undertakes to make payment within those terms.
4.7 If the Customer fails to adhere to these terms, Ward may:
(a) revert to cash on delivery and orders may be held until payment is made; and
(b)charge the Customer interest on any overdue amount, calculated daily from the due date until the date of payment in full, at the interest rate charged by Westpac Banking Corporation to its prime commercial customers on the due date.
4.8 The Customer must pay all reasonable costs incurred by Ward in recovering any outstanding amounts including but not limited to debt collection or legal costs.
4.9 Where this document forms part of a quotation:
(a) the quotation is not to be constructed as an offer or obligation by Ward to sell and Ward reserves the right at its option to accept or reject any orders received;
(b) the quotation is, prior to receipt of acceptance, subject to alteration or withdrawal at any time by Ward; and
(c) any quotation, email, facsimile, price list or document indicating a price and delivery term, is only valid for 30 days unless specifically stated otherwise. All prices quoted herein are exclusive GST and any other government imposts and charges, unless stated otherwise.
5. Cancellation Charges
If Ward becomes liable to pay a Supplier's cancellation or rescheduling fee due to the Customer cancelling an Order, then Ward may recover those fees from the Customer and the Customer agrees to pay such fees upon demand by Ward.
6. Stock Returns for Credit
6.1 Where Ward is not at fault and the Customer wishes to return the Products, subject to the rest of clause 6 being adhered to, the Customer will:
(a) pay the cost of freight of the Products back to Ward and may be liable for a 15% handling charge; or
(b) pay the cost of freight of the Products back to Ward if returning for credit and then received replacement items of the same quantity.
6.2 Returned Products can only be credited at the value equivalent to the current market value of the Products.
6.3 Damaged Products are not eligible for return.
6.4 Products to be returned must have a returns authorisation (RA) number clearly visible on the outside of the package (not on original carton), and the Products must be in a re-sellable condition, acceptable by Ward.
6.5 Any Products considered defaced or damaged by the Customer or any third-party will not be eligible for return.
6.6 Approved product returns must be returned to Ward within 7 days of the RA number being issued or the Product return will be declined and returned to the Customer.
6.7 In the event of a pandemic, Ward reserves the right to cease refunds for unwanted returns due to surplus buying.
7. Warranty
7.1 Ward warrants that all Products supplied are fit for purpose.
7.2 Should any Products no meet the Customer's requirements for this purpose, then Ward will replace the Products at no cost to the Customer or provide the Customer with a full refund at the Customer's preference.
8. Liability and Indemnity
The Customer indemnifies and will keep indemnified Ward, its employees, agents and subcontractors from and in respect of all claims for any direct, indirect, incidental or consequential loss, injury or damage to persons or property howsoever caused arising out of or consequent to the use of any or all of the Products, any delay or failure in supplying the Products and these Terms of Supply.
9. Title and Risk
9.1 Ownership of any Products and packaging delivered remains vested in Ward until payment of all amounts owing on account for any products supplied, whether past or present, has been paid in full.
9.2 If any amount is due, owing and payable, Ward shall be entitled to enter upon any premises where the Products previously supplied by Ward are located and remove from such premises and take possession of any such products at invoice value in satisfaction of any and all unpaid amounts which are due, owing and payable at that time by the Customer to Ward.
9.3 Risk to the Products will pass to the Customer on delivery, which will be deemed to have occurred in accordance with clause 3(b).
10. Personal Property Securities Act
10.1 Unless the context requires otherwise, terms used in this clause 10 have the meaning given to them by the PPSA.
10.2 The Customer acknowledges and agrees that the Terms create an accepted and ongoing security agreement in relation to each and every supply of Products to the Customer by Ward. The Customer further acknowledges that each supply of Products by Ward creates a separate and distinct security interest.
10.3 The Customer grants Ward a security interest in all of the Customer's present and after acquired property to secure all moneys the Customer owes Ward, whether under these Terms of Supply or otherwise.
10.4 The Customer agrees that the security interests granted are continuing and subsisting interests over collateral, with priority over any registered or unregistered general (or other) security interest and any unsecured creditor.
10.5 The Customer consents to Ward lodging multiple registrations in relation to the Products.
10.6 The Customer will do everything reasonably required of it by Ward to enable Ward to register the registrations, with the priority Ward requires, including:
(a) signing any documents and/or providing any information which Ward reasonably requires to register a financing statement or a financing change statement on the PPSR in relation to a security interest; and
(b) correcting a defect in a financing statement or registration.
10.7 The security interests arising between Ward and the Customer are perfected prior to, on delivery or within a time contemporaneous with the delivery of the Products.
10.8 The Customer waives any notice requirements in respect of the PPSA, to the extent permitted by the PPSA.
10.9 Any time the Customer makes a payment to Ward, Ward may apply that payment:
(a) first, to satisfy an obligation that is not secured;
(b) second, to satisfy an obligation that is secured, but not by a PMSI;
(c) third, to satisfy an obligation that is secured by a PMSI for that obligation and using proceeds from the sale of the collateral subject to that PMSI;
(d) fourth, to satisfy an obligation that is secured by a PMSI using funds or proceeds from any source; or
(e) despite the above, in any manner Ward sees fit.
10.10 If Chapter 4 of the PPSA would otherwise apply to the enforcement of the security interests created under these Terms, the Customer agrees that sections 95, 120, 121(4), 125, 128, 129, 130, 132, 134, 135, 142, 143 and 157 of the PPSA will not apply to the enforcement of those security interests.
10.11 The Customer agrees not to disclose to an interested person' (as defined in section 275(9) of the PPSA) or any other person, any information of the kind described ins section 275(1) of the PPSA including the Terms as a security agreement between the Customer and Ward.
10.12 The Customer irrevocably grants Ward the right to enter any premises or property of the Customer without notice, and without being in any way liable to the Customer or any other person, if Ward has cause to exercise any of its rights under the PPSA, and in particular under section 123, and the Customer agrees to indemnify Ward against any such liability whatsoever.
10.13 The Customer agrees that repossession of the Products pursuant to the PPSA will only satisfy so much of the monies which may still be payable to Ward by the Customer, and is equivalent to War estimation of the market value of the Products as it is at the date of repossession. On repossession of the Products, any rights the Customer may have to the Products will immediately extinguish.
11. Termination
11.1 Ward may terminate the Terms if:
(a) the Customer fails to pay the Fees;
(b) the Customer breaches the Terms; or
(c) subject to the statutory stay, the Customer commits any act of bankruptcy, becomes insolvent in the opinion of Ward, enters into any arrangement with its creditors or, where the Customer is a company, enters into liquidation or is wound up.
11.2 In these Terms of Supply, "act of bankruptcy" shall be deemed to include entering into a composition and the execution of a deed of assignment or deed of arrangement.
12. Dispute Resolution
12.1 This clause 12 applies if the Customer has a Credit Account.
12.2 Before instituting legal proceedings, any dispute between Ward and the Customer in relation to the Terms will be referred to mediation administered by the Australian Commercial Disputes Centre (ACDC) and held in Western Australia.
12.3 If the dispute has not been resolved within 28 days of the appointment of a mediator, Ward or the Customer may commence legal proceedings.
12.4 Nothing prevents either Ward or the Customer from seeking urgent injunctive relief from a court of appropriate jurisdiction.
13. Customer Trading through Trust
13.1 The Customer agrees that even though it enters into the Terms as trustee of a trust, the Customer will also be liable personally for the performance and observance of every term or covenant to be observed and performed by the Customer, whether express or implied in these Terms.
13.2 The Customer warrants that it has complete, valid and unfettered power to enter into these Terms pursuant to the provisions of a trust where applicable and warrants that the Customer's entry into these Terms is in the due administration of the trust.
13.3 The Customer covenants it has an unrestricted and unlimited right of indemnity against the property of the trust.
13.4 The Customer warrants that all information provided to Ward is true and correct and acknowledges that Ward has relied on and has been induced on this basis to grant credit and/or deal with the Customer.
13.5 The Customer indemnifies and will keep Ward indemnified against all loss incurred by Ward as a result of the failure to disclose the existence of any trust or trustee relationship, including any loss incurred as a result of registering a PPS registration against the wrong entity or with the wrong identifiers.
14. General
14.1 The Terms contain the entire agreement between Ward and the Customer in relation to its subject matter and supersede all prior negotiations, agreements, understanding and commitments between Ward and the Customer in relation to that subject matter.
14.2 The Terms are governed by the laws of Western Australia, and Ward and the Customer submit to the exclusive jurisdiction of the courts of that State.
14.3 Ward may subcontract to any person the performance of any of its obligations under these Terms of Supply.
14.4 If any provision of the Terms is unenforceable, it will be read down to be enforceable or, if it cannot be read down, the term will be severed from the Terms without affecting the enforceability of the remaining Terms.
14.5 A notice must be in writing and handed personally or sent by fax, email or prepaid mail to the addressee. Notices sent by mail are deemed to be received 5 days after posting. Notices sent by fax or email are deemed received in accordance with the relevant electronic transactions legislation.
14.6 Where a person uses or authorises the use of his or her signature in whatever form, including approving an authorised person (including any employee) to apply his or her signature to a document, leaving an authorised person with his or her email address and password, that person agrees that they:
(a) have full knowledge of the Terms and all material circumstances related to or as stated in the relevant document;
(b) have provided the requisite authority in whatever form for the use of their signature for the express purpose of entering into legally binding arrangements;
(c) acknowledge that Ward relied on this clause 14.8 and any signature as being applied with full and complete authority (express, implied or ostensible) by person whose signature is used; and
(d) understand the nature and effect of the Terms.
14.7 Ward and the Customer consent to the Terms being produced, signed and retained solely in an electronic form, provided that the production, signing and retention complies with the requirements of the relevant Electronic Transactions Acts.
14.8 The rights and obligations of Ward and the Customer under the Terms will be binding on, and will be of benefit to, each of the party's successors, permitted assigns, heirs, executors and administrators.