O-I STANDARD TERMS AND CONDITIONS (AUSTRALIA)
Claim means any and all claims, proceedings, judgements, damages, losses, costs, expenses or liabilities, whether direct or indirect and includes, without limitation, claims in respect of Consequential Loss.
Consequential Loss means: loss of profit; loss of revenue; loss of opportunity; loss of actual or anticipated savings; loss of goodwill; any exemplary, punitive or special damages; any indirect or consequential losses.
Industry Product means Product that is not Proprietary Product.
Mould means moulds, dies or tooling used in the manufacture of Products.
O-I means O-I Operations (Australia) Pty Ltd (ABN 94 004 230 236) trading as O-I Australia of Level 5, 600 Bourke Street, Melbourne, Victoria.
Product means any product manufactured by O-I.
Proprietary Product means (i) Product, the design of which is provided and owned by the buyer; or (ii) Product, the design of which is created by O-I solely and exclusively for the buyer and which is owned by the buyer in accordance with a written agreement between the buyer and O-I.
Security Interest has the same meaning given to it in the Personal Property Securities Act 2009 (Cth).
These terms and conditions are incorporated in all orders for Product placed by a buyer, notwithstanding any inconsistencies which may be introduced in the buyer’s order or any acceptance of such order by O-I, unless such inconsistency is expressly agreed to by O-I in writing. To the extent of any inconsistency between a quotation and this document, the quotation will prevail.
3. QUOTATIONS AND ORDERS
3.1 All quotations given by O-I are valid for 60 days and are subject to withdrawal or variation at any time prior to O-I’s written acceptance of an order from the buyer.
3.2 No order will be accepted by O-I unless a written order is received by O-I from the buyer.
3.3 No orders made by a buyer on the basis of O-I’s quotation shall be binding on O-I until accepted in writing by O-I. Acceptance of an order by O-I does not amount to any representation that O-I will or is obliged to accept any future orders from the buyer.
3.4 The quantity of Proprietary Products to be manufactured consequent on O-I’s acceptance of an order shall be subject to, at OI’s option, a variation of 5% or 50,000 units, whichever is the lesser, and subject to this variation the buyer shall accept and pay for the quantity of the Products actually manufactured and delivered by O-I. O-I’s liability for any shortfall or non-delivery of ordered Products will be limited to adjusting the invoice in respect of such shortfall to reflect the actual quantity delivered.
3.5 The buyer is not permitted to withdraw or cancel an accepted order unless the parties agree in writing, and the buyer must reimburse O-I for all reasonable costs incurred in connection with such cancelled order.
4.1 The price of Product shall be as set forth in: (i) O-I’s price list current at the time when the Product is supplied by O-I; or (ii) if the buyer has been provided with an unexpired quotation, the prices set out in that quotation.
4.2 All delivery and freight costs are the responsibility of the buyer and will be added to O-I’s invoice where if the buyer asks O-I to deliver. Delivery and freight costs will vary depending on the location and arrangement for delivery (including whether the buyer wishes to collect direct from O-I’s warehouse).
4.2 All sales tax and government imposts (including any GST or equivalent) are the responsibility of the buyer.
5.1 Payment for Products shall be made by the buyer within 30 days of the end of the month in which invoice was issued. Without prejudice to any other rights or remedies that O-I may have in respect of a payment default, if the buyer fails to pay any amount payable by it by the due date:
(i) the buyer must, if demand is made by O-I, pay interest on the unpaid amount, at a rate of 1.5% per month, calculated on the daily balance from the time it falls due until the amount has been paid in full ;
(ii) O-I may recover from the buyer any amounts reasonably incurred by O-I in enforcing its rights to be paid (including any amounts paid to a debt collector); and
(iii) O-I reserves the right to change the payment or credit terms in respect of unfulfilled or future orders of the buyer.
6. DELIVERY AND ACCEPTANCE
6.1 Any times quoted for delivery of Product are estimates only. O-I will otherwise deliver the Products within a reasonable period of time, subject to availability of the Products, third party acts or omissions, or any events outside of O-I’s control. Time for the delivery of Products is not of the essence and O-I shall not be liable for failure to deliver or for delay in delivery arising from any cause whatsoever except to the extent a delay is directly caused by O-I’s wilful delay, wilful misconduct or negligence.
6.2 The buyer shall not be relieved of any obligation to accept or pay for Product by reason of any delay in delivery or dispatch.
6.3 O-I reserves the right to deliver in instalments, and each instalment shall be deemed to be sold under a separate contract. Failure to deliver any instalment shall not entitle the buyer to repudiate, rescind or terminate the relevant order or contract.
6.4 Where delivery of Products is required by the buyer, orders shall be for not less than 36 pallets (comprising a max. of 2 Products).
6.5 Where Products are being collected by the buyer direct from O-I, orders shall be for not less than 16 pallets (comprising a max. of 2 Products).
6.6 The buyer shall give O-I delivery instructions as far as possible in advance of a desired delivery date.
6.7 Notation by O-I’s carrier on the delivery docket shall be conclusive evidence of delivery. The buyer shall be responsible for any loss or damage occurring during unloading of the Products at the buyer’s premises.
6.8 Products are deemed to be accepted by the buyer unless O-I receives written notice to the contrary specifying any material non-conformance with sufficient detail and within 5 days of receipt of the Products. The buyer must not reject the Products on the basis of the agreed variation set out in clause 3.4. O-I reserves the right to examine any Products that the buyer claims to be non-conforming. O-I may impose charges to reimburse it for all reasonable costs incurred if the buyer’s claim is unsupported. The buyer must not return any products delivered unless the parties agree in writing that the Products are nonconforming and the buyer complies with O-I’s instructions in relation to the return of the Products. To the extent permitted by law, O-I’s sole liability in respect of any such non-conformance is, at O-I’s option, replacement of the Products with conforming Products within a reasonable period or a refund of the price of the non-conforming Products.
7. RISK AND OWNERSHIP
7.1 The risk in the Products supplied passes to the buyer upon physical delivery of Products to the buyer’s carrier or on collection by the buyer.
7.2 The ownership in the Products supplied does not pass to the buyer until the buyer has discharged all outstanding indebtedness (whether in respect of the Products supplied or otherwise) to O-I.
7.3 Until payment in full of such indebtedness has been made and title passes to the buyer, the buyer acknowledges and agrees that:
(i) the Products supplied are held by the buyer in a fiduciary capacity as bailee;
(ii) the buyer must store the Products separately from other stock and ensure that the Products are identified as O-I’s property; and
(iii) the buyer must not allow any third party to obtain any security interest in the Products.
7.4 To the extent that any Security Interests are created under this document O-I may register in the Personal Property Securities Register, any and all Security Interests granted by buyer in accordance with this document.
7.5 If O-I and the buyer cease dealing, the provisions of this clause will survive and continue so that O-I may exercise its rights in any Security Interests.
7.6 The buyer shall insure the Products to at least their contract value against theft, fire, accidental or malicious damage, flood or storm and the buyer shall pay when due all insurance premiums.
Any description given of any Product will be given by O-I by way of identification only. To the full extent permitted by law, and subject always to clause 17, no warranties, conditions, guarantees, terms, representations or undertakings, express or implied (whether by statute, common law, collaterally or otherwise), including but not limited to any warranty of acceptable quality or fitness for purpose or warranty that the Products meet any description or specification, are made or shall be deemed to have been made by O-I with respect to any Products or anything else provided by O-I under this agreement.
9. RETURNABLE MATERIALS
9.1 Where packaging has been charged for and is returnable, a return allowance will only be made in respect of packaging if it has been received by O-I in what O-I in its sole discretion determines to be an acceptable condition.
9.2 Packaging will remain at all times the property of O-I and must not be used by the buyer or any other party for any purpose other than delivery of Products by O-I.
10.1 Where Products are manufactured in Moulds supplied by O-I, O-I does not warrant or represent that the Products are of the exact measure, content or capacity as are referred to in the description of the Products.
10.2 If the Products are manufactured in the Moulds supplied by the buyer, O-I accepts no responsibility whatsoever for the shape, measure, content, capacity, fitness or otherwise of the Products or the Moulds or the suitability of the Moulds for the manufacture of the Products or for the loss of, or damage to the Moulds.
10.3 With the exception of the Moulds supplied by and at the sole expense of the buyer, all the Moulds remain the property of O-I and O-I is under no obligation to deliver or part with possession of such Moulds.
10.4 The cost of modification of any Mould other than where such modification has been initiated by O-I, is to the responsibility of the buyer.
10.5 Where O-I manufactures Proprietary Products for the buyer, the buyer is responsible for the cost of the Moulds and must reimburse O-I for this cost.
11. PROPRIETARY PRODUCTS AND INTELLECTUAL PROPERTY CLAIMS
Where O-I has utilised a design or followed an instruction or specification relating to the manufacture of Proprietary Product provided by the buyer, the buyer shall indemnify and hold harmless O-I from and against Claim arising out of or in connection with any activity undertaken by O-I in accordance with those instructions or in the performance by O-I of its contractual obligations, involving an infringement or alleged infringement of any intellectual property right or other breach of third party right.
12. NON REFILLABLE BOTTLES
The buyer acknowledges that the Products are non-refillable and are sold on the condition that they are to be filled once only. The buyer further acknowledges that failure to observe this condition may cause injury to persons or property and shall indemnify and hold harmless O-I from any Claim arising out of or in connection with such injury or the buyer’s failure to observe this condition.
13. ADVICE AND ASSISTANCE
Where O-I provides any technical advice or assistance to a buyer including, without limitation, setting up bottling lines or other equipment for filling and/or handling bottles, buyer acknowledges and agrees that it takes such advice at its own risk, that it is responsible for ensuring that any such advice or assistance meets its own requirements and that such advice or assistance is provided solely on the basis that O-I shall have no liability for any Claim in respect of such advice or assistance including, without limitation, any loss or damage or Consequential Loss arising out of or in connection with the negligence of O-I, its employees or agents.
14. AGEING STOCK AND STORAGE
14.1 If the buyer fails to take delivery of Products at the expiration of one clear month after the day agreed for delivery at the time of O-I’s acceptance of the buyer’s order:
(i) the cost of such Products will be invoiced to the buyer; and
(ii) the buyer shall be subject to a monthly storage charge of $9.00 per pallet which includes insurance and handling charges.
14.2 In addition to the requirements of clause 14.1, if the buyer fails to take delivery of an order of Proprietary Products at the expiration of one year after the day agreed for delivery at the time of O-I’s acceptance of the buyer’s order, the subject of such order will be culleted and the buyer will be credited for the value of the cullet less any unpaid storage charges, invoices and culletting costs.
15.1 All intellectual property interests in Proprietary Bottles are and shall remain the exclusive property of the buyer. If Proprietary Products are manufactured to the buyer’s specifications, O-I will use its best endeavours to meet the agreed specifications. OI and the buyer will agree in writing before making any alterations or improvement in the design or specifications, including to make any alteration or improvement in the design or specification of the Products which will improve the performance of the Products without altering their basic structure, design or nature and the costs of any such alterations or improvements will be the responsibility of the buyer.
15.2 All illustrations, preliminary drawings and specifications supplied by O-I to the buyer with quotations are approximate only.
15.3 All intellectual property interests in specifications for Industry Products are and shall remain the exclusive property of O-I.
15.4 Specifications for Industry Products shall be treated by the buyer as confidential and shall not be made use of by the buyer except with the prior written consent of O-I. Such obligation shall survive the termination of dealing between O-I and the buyer and shall cease when, but only to the extent that, such Specifications have become public knowledge. The buyer shall take all steps as are necessary to ensure that its employees also observe such requirements as to confidentiality of such Specifications.
15.5 O-I will manufacture all Products in accordance with any mandatory Australian requirements. O-I makes no warranty or representation that products will meet the requirements of any other country.
16. EXPORT CONTROL
The buyer shall comply with all export and import laws of all countries involved in the sale of any Products or the resale of the Products outside Australia. The buyer assumes all responsibility for shipment of Products requiring any government import clearance.
17. LIABILITY AND IMPLIED CONDITIONS
17.1 The limitations on O-I’s liability contained in this document are made to the full extent permitted by law. Nothing in this document restricts the effect of warranties or conditions which may be implied by law or any other rights or remedies which cannot be excluded, restricted or modified. Subject to those laws, to the extent to which O-I is entitled to do so, its liability under such implied conditions or warranties or other rights or remedies, shall be limited at its option to:
(i) in the case of goods, any one or more of the following:
(1) the replacement or repair of the goods or the supply of equivalent goods; or
(2) the payment of the cost of replacing or repairing the goods or of acquiring equivalent goods; or
(ii) in the case of services, any one or more of the following:
(1) the supplying of the services again; or
(2) the payment of the cost of having the services supplied again.
17.2 Subject to clause 8 and clause 17.1 and to the full extent permitted by law, O-I will not be liable for any Claim for:
(i) loss or damage which exceeds the amount paid or payable by the buyer to O-I in respect of the order to which the Claim relates; or
(iii) Consequential Loss, however caused and whether based on principles of contract, warranty, negligence, other tort, or otherwise, even if O-I has been advised of the possibility of such Claim or Consequential Loss.
17.3 The law may confer rights arising out of the supply of goods or services which are not the subject of this clause 17. Therefore, this clause 17 should not be read as an exhaustive statement of the rights of the buyer or any other person.
(i) an application or order is made, a resolution is made or proposed or other steps are taken for the winding up, dissolution, official management, voluntary administration or liquidation of the buyer; or
(ii) the buyer enters into any arrangement, compromise or composition or assignment for the benefits of its creditors or any class of them;
(iii) a receiver, a receiver and manager, administrator, liquidator or other officer is appointed to the buyer or any part of its property;
(iv) the buyer is or is deemed (including under any applicable law) unable to pay its debts as and when they fall due, or stops or suspends the payments of its debts; or
(v) in the case of the buyer being a natural person, the buyer commits an act of bankruptcy; O-I may (without limiting or otherwise prejudicing any other rights it may have) refuse to supply Products to the buyer or fulfil orders already accepted by O-I.
19.1 These terms and conditions shall be construed in accordance with and governed by the laws in force in Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the courts of Victoria, Australia.
19.2 The failure or delay of O-I to exercise any right does not amount to a waiver or variation of that right. Any waiver or variation of a right by O-I must be in writing and signed by O-I.
19.3 If any provision of this agreement is or becomes invalid, illegal or unenforceable in a jurisdiction, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable in that jurisdiction. If such modification is not possible, the relevant provision shall be deemed deleted in that jurisdiction. Any modification to or deletion of a provision shall not affect the validity and enforceability of the rest of this agreement or the validity or enforceability of that provision in another jurisdiction. If any provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
19.4 For the purposes of this clause, a “Force Majeure Event” is an event or circumstance that prevents, hinders or delays a party’s performance of any of its obligations under this document (other than an obligation to make a payment) and may include fire, furnace failures, leaks or collapses, machine breakdown, lightning, flood, storm, cyclone, subsidence, explosion, terrorism, insurrection or civil disorder, government intervention, industrial disturbance or action or any other event beyond the reasonable control of that party. If a Force Majeure Event occurs, this document and any orders accepted pursuant to it will continue and remain in effect, the party whose performance is affected (the Affected Party) will not be in default for non-performance of its obligations to the extent that performance is impacted by the Force Majeure Event and the Affected Party’s time for performance of its affected obligations will be extended for the period of the Force Majeure Event plus a reasonably period to enable it to recommence performance.
19.5 All indemnities and any other clauses which by their nature survive termination or expiry of this agreement will survive termination or expiry of this agreement for any reason.