(a)        “Contract” means this Contract including these terms and conditions between National Can Industries and its subsidiaries (hereinafter referred to as “NCI”) and the Buyer for the provision of goods or services.
    (b)        These conditions are applicable to any quotation and the Contract or Contracts arising from the acceptance of any quotations.
    (c)        These conditions apply notwithstanding that the Buyer purports to accept the quotation and/or place an order or orders on different terms and conditions.
    (d)        Quotations are only valid for 30 days from the date hereof unless some other period is specified in writing by NCI.
    (e)        Any modifications agreed to verbally will only be effective after confirmation by NCI in writing.
    (f)        Orders or offers to purchase are subject to the understanding that any order or offer may be transferred in whole or in part to a related company of NCI for manufacture.
  2. APPLICABLE LAW. This Contract shall be governed by the law of the State or Country in which NCI has its office through which the Buyer dealt in entering into this Contract and any litigation between the parties shall be instituted and conducted in the appropriate court in the aforementioned State or Country and each party hereby submits to the jurisdiction of that court.
  3. TRANSFER OF PROPERTY. The property in the goods shall not pass to the Buyer until payment of the Purchase Price is made to NCI in full. Until payment of the Purchase Price is made to NCI in full, the Buyer acknowledges that:
    (a)        The goods supplied are held by the Buyer as bailee to be sold by the Buyer as agent for and on behalf of NCI.
    (b)        On the resale by the Buyer of any of the goods or any products incorporating the goods, to customers of the Buyer, the proceeds of sale, at least to the extent of NCI’s interest therein, shall be held on trust for NCI.
    (c)        Any of the goods stored by the Buyer shall be separated from other goods and clearly identified as the property of NCI.
    (d)        NCI, its employees and duly authorised agents, are hereby authorised at any time during business hours to enter any premises of the Buyer to view the goods, the manner in which they are stored, and to remove the goods or any of them if NCI thinks fit. No goods shall be stored on premises other than the Buyer’s without NCI’s prior written consent.
    (e)        The Buyer shall inform NCI immediately of any event or events likely to be adverse to NCI’s proprietary rights in respect of the goods or any of them.
    (f)        If the goods are stored or held at any premises other than the premises to which the Buyer has a right of access, the Buyer shall before delivery of the goods to these premises notify the person or persons entitled to possession of such premises of the rights of NCI under this contract; and
    (g)        NCI, its employees or agents shall not be liable for any loss or damage whatsoever incurred as a result of seizure, repossession or removal of the goods from any premises pursuant to this clause.
  4. RISK. The risk in the goods supplied by NCI to the Buyer shall pass to the Buyer as soon as they have been delivered to or into the custody of the Buyer or its agent as provided for in Clause 5.
  5. DELIVERY. Unless otherwise agreed in writing by:-
    (a)        Where the delivery destination is situated with the same metropolitan area as NCI, NCI shall deliver the goods there; and
    (b)        In all other cases, NCI shall deliver the goods to the nearest (or most convenient to NCI) point of road, rail, sea or air transport, as NCI may decide with all costs beyond this point (including insurance risk) to be at Buyers cost; and
    (c)        Subject to clause 6, delivery shall be deemed complete once the goods are delivered in accordance with this clause.
  6. DELIVERY PERIOD. Where the Buyer has not by the final delivery date taken or accepted delivery of all goods:
    (a)        The price of the undelivered goods shall be subject to variation in accordance with clause 9(a) and the balance of the price of the undelivered goods or any instalment thereof shall be paid immediately on delivery or on tender by NCI in accordance with clause 13.
    (b)        NCI shall use its best endeavours to despatch the goods by the agreed date (if any) but shall not be liable for any loss or damage arising directly or indirectly from delay, whether such delay be caused by NCI or otherwise. Late delivery or failure to deliver does not entitle the Buyer to cancel any order or part thereof.
    (c)        If the goods are to be despatched by installment, the Buyer shall pay to NCI all moneys owing for or on account of each installment despatched, but goods from time to time comprising instalments awaiting despatch shall be despatched to the Buyer, who shall not be entitled to cancel or otherwise avoid accepting and paying for any installment despatched.
    (d)        NCI reserves the right to suspend the supply of any order in whole or in part or discontinue the supply of goods without incurring any liability whatsoever and without being obliged to give any reasons for its actions.
    (e)        NCI reserves the right to make part delivery of any order and each part delivery shall constitute a separate contract of supply.
    (f)        The rights conferred on NCI by this clause are without prejudice to its other rights and remedies.
    (a)        Where the goods are to be used for products in respect of which any law or regulation of any competent Government Authority requires a special container or particular identification as the case may be, due compliance with any such law or regulation shall be the sole responsibility of the Buyer who shall indemnity NCI against all liability, claims, costs and expenses of whatsoever nature arising from any infringement thereof or non-compliance therewith. Without limiting the generality of the foregoing it shall be the responsibility of the Buyer to ensure that any necessary bar coding is provided to NCI prior to printing and that it is true and correct. It is also the Buyer’s responsibility to check bar coding on delivery. No liability is accepted nor warranty given concerning the readability of the symbol or code.
    (b)        Unless stated to the contrary, any price for goods quoted by NCI includes packaging in accordance with recognised standards, but the cost of any special packing requested or required by the Buyer, or deemed necessary by NCI, shall be borne by the Buyer.
    (a)        Where other terms have not been expressly agreed upon, payment for the goods shall be due on the 30th day of the month following the month of delivery and time shall be of the essence.
    (b)        NCI reserves the right to charge interest on overdue accounts at the rate from time to time which would normally be charged by NCI’s current account banker on overdrawn accounts of an amount equal to the amount of the overdue account from the due date until payment is received. Payments made to NCI shall be applied first in payment of interest and secondly, in reduction of invoiced amounts.
    (c)        All instalments of goods shall be separately paid for and all payments shall be made on the due dates as condition precedent to future deliveries.
    (a)        Subject to any agreement between NCI and the Buyer as to a firm Purchase Price for the goods, if between the date of the Contract and the date of delivery, the cost to NCI of any of the goods or components thereof shall have increased by reason of any alteration in the cost of materials, labour (whether by alteration in the rate of wages, hours of working, other conditions of employment prescribed by any determination or agreements or otherwise howsoever), insurance (including war risk), freight, cartage, excise or any other tax or in the rate of exchange or by reason of any order or regulation of any Government or other relevant authority or the inability of NCI to procure materials of the appropriate economic dimensions or by reason of any other cause beyond NCI’s control, NCI shall have the right by notice in writing to the Buyer, to increase the Purchase Price of the goods by such amount as in the opinion of NCI, fairly reflects such increased cost or costs.
  10. CONTINGENCIES. NCI will make all reasonable efforts to manufacture and deliver the goods on or within the times specified herein but failure to do so by reason of the inability of NCI to obtain supplies of new materials from its usual sources or any strike or combination of workers or lockout, by reason of war, riots, civil commotion, fire, flood, act of God, or any other cause whatsoever beyond the reasonable control of NCI shall not constitute a breach of Contract on its part and its obligation to supply the goods shall be suspended but with liberty to it, at any time, to cancel this Contract or any unfulfilled part thereof, or to renew it upon cessation of the cause which previously made it unable to do so.
    (a)        NCI warrants to the Buyer that the goods will be manufactured by it:
    (i)        using appropriate materials and workmanship; and
    (ii)        in accordance with and to the requirements of the Buyer’s written specification and drawings (if any) PROVIDED THAT where the specification or drawings are not fully detailed, the dimensions, tolerance or other information omitted or not sufficiently detailed shall be at the discretion of NCI and the Buyer shall be responsible for any consequential additional costs.
    (b)        The Buyer shall inspect the goods as and when the same are delivered for the purpose of confirming that the goods conform to the requirements of the specification and drawings (if any) and that appropriate materials and workmanship had been used in their manufacture. Within seven days from delivery the Buyer shall give notice to NCI of any matter or thing (if any) by reason whereof the Buyer may allege that the goods, or any installment delivery of the goods, does not conform to the requirements of this Contract as aforementioned. Goods which are said to be defective must be placed aside for inspection by a representative of NCI. If the Buyer shall fail to give such notice, the goods (or such installment delivery thereof) shall be deemed to be in accordance with the requirements of this Contract and the Buyer shall be bound to accept and pay for the same accordingly.
    (c)        In the event that this Contract constitutes a supply of goods and services to a consumer as defined in any relevant legislation, as amended, (“the Acts”), nothing contained in this Contract excludes restricts or modifies any condition, warranty or other obligation in relation to the Contract and the goods which, pursuant to the Acts, or any of them, is applicable or is conferred on the Buyer where to do so is unlawful, in which event NCI’s sole liability for breach of any such condition, warranty or other obligation, including any consequential loss which the Buyer may sustain or incur, shall be limited (except to the extent specifically set forth herein) to:-
    (i)        the replacement of the goods; or
    (ii)        the supply of equivalent goods; or
    (iii)        payment of the cost of replacing the goods or acquiring equivalent goods; or
    (iv)        the repair of the goods or payment of the cost of having the goods repaired; as NCI may select.
    (d)        To the extent permitted by law, no warranty, condition, description or representation on the part of NCI is given or implied or has been given or is to be implied from anything said or written in the negotiations between the parties or their representatives, and any statutory or other warranty, condition, description or representation, express or implied as to the state, quality or fitness of the goods including but not limited to any warranty, term or condition implied by the Sale of Goods Act or similar legislation is hereby expressly excluded. Nothing herein shall derogate from or exclude any warranties or conditions necessarily implied by any statute or other applicable law.
    (e)        NCI shall not be bound by any representations or statements which have been, or purported to have been, made on its behalf in relation to the goods unless the same are set out herein.
  12. CLAIMS. In the absence of any Statutory provisions to the contrary:
    (a)        no suit or action whatsoever by the Buyer on this Contract shall be brought or sustainable unless the Buyer shall have complied with the terms, stipulations and conditions of this Contract; and
    (b)        Claims shall be limited to the cost to the Buyer of any of the said goods which are not in accordance with this Contract and the Buyer shall be responsible for any loss damage or injury howsoever arising or resulting from the supply or use of the said goods.
  13. TENDER OF GOODS. Notice by NCI to the Buyer that it is ready and willing to deliver the said goods or any installment or instalments thereof shall be deemed to be sufficient tender to the Buyer of the said goods or any such instalments thereof but nothing herein contained shall require NCI to give any such notice.
  14.  QUANTITY VARIATION. The Buyer shall accept and pay for at the Contract price per unit the goods actually delivered notwithstanding that the number thereof may be greater or less than the number actually ordered provided that the permissible variation under this clause shall not exceed 10%.
  15. RECOVERY OF COST. The following powers are without prejudice to NCI’s other rights, powers and remedies.
    (a)        IF NCI prepares tinplate for, or at the request of, the Buyer and such tinplate is not fully consumed in the manufacture of goods for the Buyer:
    (i)        within six months, the Buyer will pay to NCI on demand an amount equal to 50% of NCI’s selling price of the goods able to be manufactured by NCI utilising such tinplate (and in the event of demand being made, payment shall be made by the Buyer to NCI within 30 days of demand).
    (ii)        within nine months, NCI may dispose of such tinplate.
    (b) If NCI purchases labels for, or at the request of, the Buyer and such labels are not fully consumed in the manufacture of goods for the Buyer:
    (i)        within six months, the Buyer will pay to NCI on demand the cost of such labels including storage and handling (and in the event of demand being made, payment shall be made by the Buyer to NCI within 30 days of demand)
    (ii)        within nine months, NCI may dispose of such labels
    (c)        If the Buyer has not by the final delivery date taken or accepted delivery of all goods, the Buyer will pay to NCI on demand, on account of the price of undelivered goods, an amount equal to 50% of the price which the Buyer would have been required to pay if the goods had been delivered to the Buyer on the final delivery date (and in the event of demand being made, payment shall be made by the Buyer to NCI within 30 days of demand).
    (d)        Notwithstanding any other provisions of this Contract, if the Buyer breaches this Contract, NCI may require the Buyer to pay to NCI any and all costs and expenses of whatsoever nature or kind which NCI has incurred complying with its obligations under this Contract.
    (a)        All tools, moulds, dies, designs, sketches, negatives, printing plates, standing matter blocks, engravings and all other items used in preparatory and other work in and about the manufacture of the said goods and provided directly or
    (b)        indirectly by NCI shall in the absence of any written agreement to the contrary be and remain the exclusive property of NCI notwithstanding any contribution by the Buyer in respect of the cost thereof.
    (a)        All duties, taxes, imposts, fees or charges of any governmental, statutory or regulatory body which shall be applicable to the order shall be borne by the Buyer and added to the price of the goods or the services and the Buyer shall indemnify NCI in respect of any claims for such duties, taxes, etc.
    (b)        All prices quoted for the goods or services are exclusive of goods and services tax. For all invoiced items, goods and services tax shall be charged as a separate item in accordance with the applicable rate at the time the invoice is prepared.
  18. INTELLECTUAL PROPERTY RIGHTS. The Buyer shall indemnify NCI against all liabilities, claims, demands, costs and expenses which NCI may incur, sustain or be subjected to (including but not limited to those arising out of or in any way relating to any infringement or alleged infringement of any patent, design, copyright or other right of any third party) in consequence of it having at the request of the Buyer, used a design or applied lettering or other markings on the goods whether by lithography, printing or any other form of reproduction.
  19. ADVICE. Any advice, recommendation, information, assistance or service provided by NCI in relation to goods sold or manufactured by it or their use or application is given in good faith and is believed by NCI to be appropriate and reliable but NCI shall have no liability whatsoever to the Buyer in respect thereof.
  20. BUYER’S OWN MATERIALS. Any items or materials including machinery, dies, tooling etc. belonging to the Buyer required to be on the premises at NCI in connection with manufacture of the goods shall be at the Buyer’s risk and NCI shall be in no way liable for any loss or damage caused to them. Any such items or materials shall be removed by the Buyer at the completion of this Contract or upon written request by NCI.
    (a)        If NCI is to match any shade or colour then unless the tolerances applicable have been agreed between the Buyer and NCI at the time the colour is specified, NCI’s normal colour quality standards and tolerances shall apply.
    (b)        The cost to NCI of any masterbatch and/or any colour purchased by NCI for the use in the manufacture of the goods for the Buyer which has not been used with three (3) months from the date of its purchase shall (as regards any unused quantity) be paid by the Buyer to NCI on demand. If a minimum quantity of an off-standard masterbatch and/or any colour is required by the Buyer then the cost of this material will be paid for in full by the Buyer at the time of first delivery. If after three months this material has not been fully used NCI reserves the right to dispose of the said material including machinery, dies, tooling etc.
    (a)        Aerosol cans supplied under this Contract are low pressure cans within the meaning of Australian Standard No. 2276/1986. NCI warrants that when subject to an internal pressure of 970 K Pa gauge pressure at 55 degrees Celsius the containers shall be without evidence to leakage, distortion or other defects provided however that NCI shall be allowed a tolerance of ten containers for each one thousand containers of the particular size and design purchased by the Buyer during the six months immediately preceding the month in which such claim for leakage, distortion or defect arises.
    (b)        Without in any way limiting the generality of clause 11 (d) hereof NCI gives no warranty as to the suitability of the container for any particular product or use and shall have no liability whatsoever in that regard. Certain aerosol formulations may cause corrosion or other problems and aerosol containers supplied under this Contract should only be used after the particular formulation has been properly tested by or on behalf of the Buyer. The risks involved will be the Buyer’s responsibility.
  23. METAL PRODUCTS. If this Contract is for the provision of metal or steel products:
    (a)        All measurements of mass mentioned in catalogues, price lists and quotations are to be considered as approximates.
    (b)        NCI’s determination in relation to quantities and mass shall be final.
    (c)        NCI shall use every endeavour to provide the quantity of goods ordered but this will be dependant upon the quantity and quality of metal supplied by the metal manufacturer.
    (d)        Where material is subject to tests and/or inspection this must be specified at the time of ordering so that the metal manufacturer may perform same and issue work certificates of analysis and/or tests prior to despatch from the metal manufacturer’s plant.
    (e)        NCI shall take all reasonable care in the packaging of blackplate but will not accept any responsibility whatsoever for rusting found to be apparent after packaging.
    (f)        Unless otherwise agreed and specifically prescribed by an applicable specification all goods are supplied to the metal manufacturer’s usual tolerances with regard to chemical composition, mechanical properties, surface and internal conditions. These tolerances allow for variations in the materials which may be expected to result from intrinsic features of the metal making process. Because of these unavoidable variations, NCI cannot and does not undertake to ensure detection and rejection of every sheet which varies slightly from specified requirements with regard to applicable tolerance, chemical composition, mechanical properties or surface or internal condition. Particulars of some customary variations may be found in the metal manufacturer’s manuals, e.g. BHP Products manuals, American Iron and Steel Institute, Tinmill Products, Aicoa Rigid Container Sheet Technical Manual.
    (g)        Unless otherwise agreed, any metal held on NCI’s premises on behalf of the Buyer will be subject to a storage charge (which the Buyer shall pay to NCI upon demand) at a rate per tonne (or proportionately) determined as follows:
    (i)        In the case of metal acquired by NCI on behalf of or for the purpose of fulfilling a Contract for the Buyer one (1) per cent of NCI’s selling price per tonne of the goods for each month or part thereof that the goods remain on NCI’s premises after the expiration of four (4) months: or
    (ii)        In the case of the Buyer’s own metal, one (1) per cent of NCI’s selling price per tonne in the case of tinmill products, or five (5) per cent of the agreed price for all other metals, for each month or part thereof that the goods remain on the NCI’s premises after the expiration of two (2) months.
  24. PALLETS. Any pallet belonging to NCI used by it in despatching goods to the Buyer, or which is used by or on behalf of the Buyer when collecting the goods from the premises of NCI or its agent, shall remain the sole property of NCI and be returned upon request to NCI by the Buyer at the expense of the buyer, and the Buyer shall pay to NCI an amount determined by NCI for any pallets not returned or accepted in exchange for pallets which should be returned in accordance with this clause.
  25. ACKNOWLEDGEMENT. The Buyer acknowledges that:
    (a)        The conditions contained herein are reasonable and necessary to protect the legitimate interest of NCI, and
    (b)        It has read and understands the conditions in this document; and
    (c)        No undue influence, pressure or unfair tactics were exerted in the formation of this Contract.
  26. ATTORNEY. In connection with NCI’s rights and remedies pursuant to these conditions and any other rights or remedies which may accrue to NCI, the Buyer appoints NCI as its attorney to do all things, execute all documents and otherwise act in place of the Buyer for the purposes of giving effect to these conditions, and without limiting the foregoing, to recover possession of the goods and to recover the proceeds of the sale of the goods which may at any time be received or receivable by the Buyer.
  27. WAIVER. If at any time NCI does not enforce any of these conditions of sale or grants the Buyer time or any other indulgence, NCI shall not be construed as having waived that term or condition or its rights to later enforce that right or any other term or condition.
  28. SEVERABILITY. All clauses, words, phrases, sentences and paragraphs herein are separate and independent from the others, each being severable from the others and if any of them or any parts thereof are declared void, invalid or otherwise unenforceable by any court of competent jurisdiction they shall be deemed to be served herefrom to the extent that they are so void, invalid or unenforceable but the remainder hereof shall remain in full force and effect.
  29. DEFINITIONS. In this Contract unless inconsistent with the context:-
    “Purchase Price” means the price quoted by NCI and accepted by the Buyer;
    “Final delivery date” means:
    (a)        the date of expiration of the delivery period stated in the quotation or other date (if any) subsequently agreed upon by the Buyer and NCI; or
    (b)        where no such date has been stated or agreed the date of expiration of a period of six months from the date on which the Buyer places its first order under this Contract for non-standard goods.
    “Undelivered goods” means that part of the goods or non-standard goods of which the Buyer has not, by the final delivery date, taken or accepted delivery.