Boxnload Terms & Conditions of Sale

We, us, our and similar expressions refer to Boxnload Pty Ltd ACN 621 837 090 (“Boxnload”) and you, your and similar expressions, refer to the customer named in the purchase order issued by the customer, or written quotation or proposal issued by us which sets out the details and prices of the goods to be supplied by us. If we have agreed to supply the goods on a regular basis over a period of time, then the Conditions apply to the contract as a whole consisting of recurring supply of the goods until terminated in accordance with these Conditions or terms set out in the purchase order accepted by Boxnload.

1. APPLICATION OF THESE TERMS AND CONDITIONS

These terms and conditions (“Conditions”) together with any purchase order issued by you and accepted by us, written quotation from us or proposal from us apply to any supply made by Boxnload to you form a contract. Where any purchase order issued by you purports to be made on or subject to terms and conditions other than these Conditions, you agree that such other terms and conditions do not form part of this contract unless Boxnload agrees otherwise in writing.

2. QUOTATIONS AND PURCHASE ORDERS

Any quotation or proposal from Boxnload does not constitute an offer to sell and no purchase order given pursuant to any quotation binds us unless and until we have accepted your order, which we may refuse in our absolute discretion. All quotations and proposals are subject to withdrawal or variation by us at any time prior to acceptance of any order.  For avoidance of doubt, your acceptance of our quotation or proposal is treated by us as your purchase order that is offered on these Conditions.

3. CANCELLATIONS

Any request by you for cancellation of a purchase order must be in writing and must be delivered by post, hand delivery, facsimile or email to us. You are liable to reimburse us for the costs we have incurred or committed to incur for labour and materials in fulfilling your purchase order up to the date the request for cancellation is received by us. We reserve the right to charge a reasonable cancellation fee in addition to the costs it has incurred.

4. CUSTOMER SPECIFIC STOCK

Where we have agreed to manufacture, procure, warehouse and/or distribute the goods specifically for you, you must, within thirty (30) days of our request, purchase all stock then warehoused and held at the then prevailing supply price. Where you do not do so, we may dispose of the relevant goods without liability for any loss or damage suffered by you as a result. You indemnify and keep us indemnified against all liability, claims, demands, loss, costs and expenses incurred by or made against us, arising out of any actual or alleged infringement of patents, copyright, trademarks, design rights or other intellectual property rights, by any logo, design, copyright or other material that we may use, print or reproduce at your request.

5. TERMS OF PAYMENT

Payment is required at the time of order unless cash on delivery is accepted by prior arrangement or we have agreed to extend credit to you on the terms and conditions set out in our credit application form. Where credit has been granted, unless otherwise agreed, payment for the goods is to be made within 14 days  from the date of invoice. Payment must be made in full without set-off or deduction.

If payments are not made by the due date, we reserve the right to:

(a) forfeit and not pay to you any volume rebate amounts that may have accrued to you, and/or

(b) withdraw credit terms to you.

We will investigate any disputed amounts, and if resolved in favour of you, we will issue a credit note to you. We reserve the right to charge reasonable card surcharges in the event payments are made using a credit, debit or charge card including but not limited to Visa, MasterCard, American Express or Diners Club.

6. DEFAULT

If you default in payment, or an application is made to a court to wind you up, or a receiver or administrator is appointed to manage your affairs, or you make or propose to make any arrangement with your creditors, then we may, without prejudice to any other remedy that may be available us, at our option withhold further deliveries or terminate the contract immediately and recover from you, at a minimum, reasonable compensation for materials purchased and ordered and labour incurred or committed to be incurred in relation to your purchase order.

7. DELIVERY

(a) We will deliver the goods to your nominated place of delivery on a date notified by us when the goods are ready for delivery.

(b) If we allow you to nominate a delivery date, such date may not be more than thirty (30) days after the expected date of manufacture of the goods, as advised by us to you.

(c) If you are unable or unwilling to take delivery on or before the nominated delivery date, or if no delivery date is nominated and you are unable to take delivery when we give notice that the goods are available for delivery, then we will hold the goods in stock at your risk for up to thirty (30) days after which time we may, at our discretion:

(i) continue to hold the goods at your risk and charge you for storage at hard stand rates applicable as at the date of storage, insurance and other charges associated with the storage of goods;

(ii) invoice you and deliver the goods in accordance with prior arrangements, notwithstanding that your representative or agent is not present or is unwilling to take the goods; and/or

(iii) treat the contract as having been repudiated by you and invoice you for the full price for the goods and any other costs incurred by us less any amounts received by us from a bona fide sale of the goods to a third party.

(d) While we will use all reasonable endeavours to deliver by the date specified in the purchase order, we do not guarantee delivery on the delivery date specified and we will not be liable for any Loss resulting from late or early delivery. Delivery of the goods will be deemed to have taken place when the goods are unloaded from the delivery vehicle or placed on your or your agent’s nominated carrier. If no delivery date has been specified, then the goods will be delivered to you as soon as reasonably practicable after we have accepted your purchase order.

(e) You must inspect the goods within five (5) business days from the date of delivery or deemed delivery. You must within that period give notice to us of any claim on account of condition, quality, or grade of the goods, and you must specify the basis of the claim in detail. Your failure to comply with these conditions will constitute irrevocable acceptance of the goods.

8. INSURANCE

Unless otherwise instructed by you in writing or included in a written quotation or price list by us, insurance cover for the goods in transit will not be arranged by us. Instructions for insurance cover will only be accepted in writing at the time the goods are ordered. We are not obliged to give you a notice referred to in Section 35 (3), Sale of Goods Act 1923 (NSW) (or any equivalent legislation).

9. TITLE AND RISK

You agree that title in the goods is retained by us until payment by you of all sums owing to us for the goods, whether under this contract or otherwise. You must store the goods so that they are identifiable as those supplied by us. If you fail to pay by the due date any amount owing to us, we may (without prejudice to any of its other rights) recover and resell any of the goods in which property has not passed to you, and you authorise us to enter onto the premises where the goods are kept to take possession of the goods for that purpose at any time. You warrant that you have the authority to grant us the right of access as contemplated by this clause. If you sell or purport to sell any of the goods supplied by us in which title has not passed to you, then you do so as a our trustee and will hold proceeds from such sale on trust for us to the extent of the amount of money owed by you to us. You must account to us for that portion of the proceeds of sale.

Risk in the goods, including any use for which you intend, passes to you at the time of delivery or where delivery is deemed to occur. Delivery is deemed to occur when the goods are delivered to you, or your agent or carrier, or thirty (30) days after we have given you notice that the goods are available pursuant to clause 7(a). You must unload the goods at your own risk.

10. PPS LAW

(a) In this clause PPSA means the Personal Property Securities Act 2009 (Cth) and terms defined in the PPSA have the same meaning in these Conditions.

(b) You agree that these Conditions comprise a security agreement and we shall have a purchase money security interest in all previous and after acquired goods supplied to you by us. We may register any security interest on the PPSR and you also agree, at your cost, to do anything (such as obtaining consents, signing and producing documents and supplying information) which we reasonably require for the purposes of:

(i) ensuring that the security interest is enforceable, perfected or otherwise effective; or

(ii) enabling us to apply for any registration, or give any notification, in connection with the security interest; or (iii) enabling us to exercise rights in connection with the security interest.

(c) You will not allow a security interest to be created or registered over any goods supplied to you in priority to the security interest held by us.

(d) Neither party shall disclose to any third party any information referred to in section 275 of the PPSA. We need not give any notice under the PPSA (including a notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.

11. DESCRIPTION AND SPECIFICATIONS

(a) Whilst every effort is made to ensure their accuracy the descriptions illustrations and material contained in any catalogue, price list, brochure, leaflet, specification sheets, electronic communications or other descriptive matter provided by or on our behalf represent the general nature of the items described therein and shall not form a part of any order or agreement or amount to any representation or warranty.

(b) You warrant that any goods or other material, including any packaging or artwork manufactured, constructed or supplied by us which incorporate or are otherwise based in whole or in part upon designs, logos, names, drawings, specifications or other information or material supplied to us by you or a third party on your behalf does not infringe any Intellectual Property of a third party or breach any law. You must indemnify and keep us  and our servants and agents indemnified against any action, loss, cost, claim or damage that may be brought against or suffered by us or our servants or agents as a result of a breach of that warranty.

(c) We reserve the right to make any changes to designs, drawings or specifications supplied to you by us, and/or goods ordered by you, which are required to comply or conform with any applicable safety or statutory requirements or which do not materially affect the quality or usage of the goods by you.

(d) We do not warrant or guarantee that any goods manufactured, constructed or supplied by us which incorporate or are otherwise based in whole or in part upon any designs, drawings, specifications or other information or material supplied to us by you or a third party on your behalf will achieve any standard, performance criteria or capacity load. You are responsible to determine and test the suitability of the goods for your intended use in your operational environment.

(e) You acknowledge that:

(i) the goods are designed and intended for one way use only;

(ii) any information we provide you as guidelines cannot be relied upon by you as we do not know the conditions in which you operate; and

(iii) the integrity of the goods are highly dependent on factors that are unpredictable and cannot be controlled to any degree of certainty, such as temperature, humidity, warehouse conditions, location of storage and so forth.

(f) You warrant that you have undertaken or will carry out and perform your own assessments and tests to determine suitability of the goods for your intended use prior to using the goods within the operational conditions in which you will use the goods.

(g) We will not be liable for any defect in the goods arising from any designs, drawings, specifications or other information or material supplied to us by you or by a third party on your behalf. Where you approve any artwork or proofs submitted by us, we will not be liable for any errors or inaccuracies subsequently discovered.

(h) Any advice, recommendation, information or assistance provided by us in relation to the goods or their use or application is given in good faith and is believed by us to be appropriate and reliable. Any such advice, recommendation, information or assistance is provided without liability or responsibility on the part of us and you must not rely on it unless we have expressly agreed in writing the extent to which you may rely on it.

(i) In addition to any right of lien which we may be entitled to by law, we will have a general lien over any designs, drawings, specifications or tooling supplied to us by or on your behalf which is in our possession until all monies owing by you to us on any account have been paid in full.

12. QUALITY TOLERANCES

(a) Where you do not provide detailed colour specifications to us, We will develop colour specifications and print the product accordingly to your general instructions. You will then either attend our premises to view the production run and approve the colour specifications developed or alternatively we will forward samples by mail for approval. In either case you must provide us with your approval of the samples. Subsequent production runs will be based on the standards and specifications approved. If you fail to approve colour specifications you must not object to any colour variation developed by us for that run. Where you have selected colour specifications for light, nominal and dark standards specifying the nominal colour reproduction and associated light and dark limits, you will only have the right of objection to the nominal colours selected by you if such colours have been nominated using a colour system accepted by us.

(b) Where you provide us with specifications, any goods not varying in the specification stipulated by you by more than the established industry tolerance must be accepted by you as complying with the contract.

13. INTELLECTUAL PROPERTY

Subject to the remainder of this clause 14, all right, title and interest in and to any goods, materials or developments in which copyright or other Intellectual Property subsist created by or on behalf of us, created jointly with you, or otherwise supplied by us to you, shall vest absolutely in and remain our sole property. The supply of goods shall imply a licence to you to use the same but for no other purpose. you undertake not to utilise, copy, reproduce or disclose or permit others to utilise, copy, reproduce or disclose any such Intellectual Property without our prior written consent. We acknowledge that you retain all right, title and interest in and to Intellectual Property supplied to us for the purpose of this contract. You grant us a perpetual, irrevocable, royalty free licence to use such Intellectual Property for the purpose of making all supplies contemplated by any contract.

We make no representation or warranty that the goods supplied or the use of such goods or items made from the goods either alone or in conjunction with other goods will not infringe any Intellectual Property right. You must notify us of any claim or suit involving you in which such infringement is alleged and if we consider ourselves to be affected we will be entitled to control the defence of such infringement allegation.

14. ARTWORK, PRINTING

(a) Without limiting clause 13, you indemnify and keep us indemnified from and against all claims, demands, suits and costs to which we may become wholly or partially liable by reason of any artwork required to be done in accordance with your specifications involving an infringement or alleged infringement of any Intellectual Property and any Loss that results therefrom.

(b) If you supply us with any artwork for use on or in conjunction with packaging supplied by us, then use or reproduction by us of that artwork is not to be construed as a warranty or representation that it complies with the relevant legislation (in Australia or elsewhere) in relation to labelling, and you hereby indemnify and keep us indemnified in relation to any Loss arising as a result of the use or reproduction of such artwork.

15. TOOLING, MOULDS, DIES, DESIGNS ETC.

All dies, designs, sketches, negatives, photographs, plates, moulds, stereos, tooling, blocks and engravings commissioned or made available by us in connection with the supply of any goods shall remain our property notwithstanding that a charge may be made for their recovery, creation, use, maintenance and storage.

16. PRICE VARIATION

The price quoted by us is subject to variation at any time prior to the date of acceptance of the order upon written notice to you. Where we have accepted a standing or recurring order from you for goods, we reserve the right to give two (2) months notice in writing prior to any price increases to reflect increases including but not limited to the cost of wages, transport or materials to us. Within one (1) month prior to the due date for delivery you may cancel or reduce any standing or recurring order.

17. TERMINATION

(a) Either party may terminate the contract for convenience by giving the other party at least six (6) months notice in writing. If you terminate the contract prior to the end date of the contract or prior to the completion of delivery of all of the goods ordered, then you must pay all costs and expenses we have incurred or committed to incur for labour and materials in fulfilling your purchase order up to the date of effective termination.

(b) Either party may terminate this agreement with immediate effect if the other party is insolvent or in breach of a material term that is capable of rectification and after being given a reasonable opportunity to rectify the breach the other party fails to remedy the breach.

(c) We may terminate this agreement with immediate effect if you owe us any money by more than a period of fourteen (14) days after the due date for payment.

(d) Termination will be without prejudice to any accrued right or remedy we may have against you in relation to any breach.

18. GOODS AND SERVICES TAX

If, and to the extent, any supply of the goods under this contract is a taxable supply within the meaning of the GST Law, the price for the goods will be increased to include GST payable by us in respect of the supply. All rebates, discounts or other reductions in price will be calculated on the GST exclusive price.The parties agree that:

(i) the parties must be registered persons within the meaning of the GST Law;

(ii) we must provide tax invoices and if applicable adjustment notes to you in the form prescribed by or for the purposes of the GST Law; and

(iii) costs required to be reimbursed or indemnified excludes any amount that represents GST for which an input tax credit within the meaning of the GST Law can be claimed.

19. CLAIMS

Any claim by you arising out of this contract must be made in writing and must be delivered by post, hand delivery, facsimile or email as soon as practicable after discovery by you of the problem and in any event no later than seven (7) days after delivery of the goods. You must supply a sample, if requested, and information to the extent we can identify the product and the date of manufacture. We have the right at any time within thirty (30) days after receipt of the claim to inspect the relevant goods. If you dispose of any of the goods within the thirty (30) day period, except with our written consent, all claims in respect of the goods disposed of are deemed to have been waived by you.

20. OUR LIABILITY

(a) All representations, statements, terms and conditions and warranties (whether implied by statute or otherwise) not embodied in these Conditions are expressly excluded to the fullest extent permitted by law. You acknowledge that neither us nor any person acting on our behalf has made any representations or given any promise or undertaking in relation to the characteristics or quality of the goods, their fitness for purpose or their suitability for usage by you for any purpose.

(b) Nothing in these Conditions is to be interpreted as having the effect of excluding, restricting or modifying any condition or warranty, or right or liability implied by any applicable legislation (including the Competition and Consumer Act 2010 (Cth)) into the contract, if such exclusion, restriction or modification would be void or prohibited by the legislation.

(c) To the extent that we breach any condition or warranty implied into the contract and which cannot be excluded, or breaches any condition or warranty expressly included in the contract, then our liability is limited to, and completely discharged by, at our discretion, either:

(i) replacement of the goods that are the subject of the breach, or supply of equivalent goods;

(ii) payment of the cost of replacing the goods or acquiring equivalent goods;

(iii) repair of the goods; or

(iv) payment of the cost of having the goods repaired.

(d) Subject to (b) and (c) above, we are not liable to you (or to any third party claiming through you) for any Loss caused by any of our act or omission, or our employees or agent, and whether based on negligence or other tort, contract or otherwise to the greatest extent permitted by law.

(e) In no event will we be liable for indirect or consequential losses (including loss of production, profit, goodwill or reputation).

(f) To the extent we are unable to exclude our liability, our liability in the aggregate in connection with this agreement (whether arising under statute, contract or in tort including for negligence) and any other agreement we have with you in relation to the supply of the goods and/or services is limited to the price you have or should have paid for goods and/or services ordered in the twelve (12) month period immediately before the date of your claim.

(g) Notwithstanding any provision to the contrary, you indemnify us and keep us indemnified against all liability, Loss, damage, cost or expense (including legal costs and expenses on a full indemnity basis) incurred or suffered or likely to be incurred or suffered by us arising from or in connection with any breach by you of this agreement including any breach of warranty.

21. FORCE MAJEURE

Neither party is liable for any Loss incurred by the other party as a result of any delay or failure to observe any of these Conditions (other than an obligation to pay money) as a result of any circumstance beyond the party's control, including but not limited to any strike, lock-out, labour dispute, act of God, fire, flood, accidental or malicious damage, shortage of raw materials, or breakdown in machinery. During the continuance of such circumstance the obligations of the party affected, to the extent they are affected by the circumstance, are suspended and resume as soon as possible after the circumstance has ceased to have effect.

22. MISCELLANEOUS

(a) Any of these Conditions may be varied by us by giving you at least thirty (30) days notice in writing. If you do not accept the terms of the variation, you must notify us in writing within the thirty (30) day period.

(b) We may set-off any amounts owed by you to us under any contract against amounts owed by us to you on any account whatsoever.

(c) Failure by us to insist on strict performance of any of these Conditions shall not be deemed a waiver thereof. The waiver by us of any provision, or breach of any provision, of the contract is not to be construed as a waiver of any other provision or a breach of any other provision, or of any further breach of the same or any other provision of the contract.

(d) If any provision of the contract is unenforceable or void either in whole or in part for any reason, then that provision (or part) is deemed to be deleted without in any way affecting the validity or enforceability of any other provision.

(e) The contract (including the details appearing on the accepted purchase order) constitutes the entire agreement between the you and us and no modification is binding in relation to the contract unless agreed to in writing by us.

(f) The rule of interpretation which sometimes requires that an agreement be interpreted to the disadvantage of the party which put the agreement forward, does not apply.

(g) All costs and expenses incurred us (including legal costs and expenses on a full indemnity basis) to remedy any breach by you of these Conditions or to enforce our rights under the PPSA shall be recoverable from you in addition and without prejudice to our right to damages for breach of these Conditions.

(h) You must not divulge to any person any information provided by us in relation to this contract without our prior written consent, except as required by law or for the purposes of obtaining professional legal, financial or taxation advice.

(i) This agreement is governed by and will be construed in accordance with the laws of New South Wales and the Commonwealth of Australia and the parties agree to submit to the jurisdiction of the courts of that state.

(j) The following words have the following meanings in these Conditions, unless the context requires otherwise :

“GST” has the same meaning as in the GST Law;

“GST Law” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

“Intellectual Property” means any patent, registered design, trade-mark, copyright or any other industrial or intellectual property rights; and

“Loss” means any loss, liability, damage, expense or cost whatsoever and includes (without limitation) indirect or consequential loss or damage, loss of profits or business opportunity, and damage to equipment or property.