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Agreed Terms

  1. Formation and Term
    1. Upon submitting a Digital Printing Request to us an agreement is formed between us and you, consisting of this Digital Printing Agreement (the agreement) and the Design Specifications (once submitted). 
    2. This agreement will continue for the Initial Term. At the end of the Initial Term the agreement will automatically renew for successive periods equivalent to the Initial Term (each a Renewed Term), unless terminated earlier in accordance with this agreement (Term).
  2. Orders 
    1. During the Term you may issue a Digital Printing Request to us for the supply of the Products.   Upon Order Confirmation, you must provide us with the Design Specifications (the Order). 
    2. No purchase order, invoice, quote or other document containing pre-printed terms created or provided by you or a third party will vary the terms of this agreement. 
  3. Your obligations 
    1. You are responsible for:
      1. providing us with the Design Specifications; and
      2. ensuring the Design Specifications comply with the Design Checklist.
    2. Once we receive the Design Specifications, you will be provided with a digital proof of the final design for your review (Digital Proof).  
    3. You will have three (3) Business Days to review the Digital Proof and advise via the Online Portal:
      1. that you accept the Digital Proof (Acceptance); or
      2. of any changes that need to be made. 
    4. If you request changes, we will provide you with a revised Digital Proof for your review.  You will have three (3) Business Days to review the revised Digital Proof and advise via the Online Portal of your Acceptance of the revised Digital Proof or further changes need to be made. 
    5. For the Fee we will provide three rounds of revisions to the Digital Proof.  If further changes are required, you may incur additional costs.  We will advise you of those costs before those are incurred.   
    6. The Digital Proof must be accepted within the Ordering Timeframe. If you fail to accept the Digital Proof within the Ordering Timeframe, delivery of the Products may be delayed.
    7. It is your responsibility to review the Digital Proof and ensure:
      1. all design features are correct, including spelling, terms, design and colours; and 
      2. it complies with the Design Checklist. 
    8. You must comply with all applicable laws and regulations.
    9. You are responsible for:
      1. Ensuring that any third party engaged by you to fill the Products (including any contract packer or mobile filler) has the appropriate experience, systems and controls to fill aluminium beverage cans in accordance with industry best practice and the filler’s own specifications.
      2. Without limiting clause 3.9(a), you are responsible for ensuring your filler has complete and accurate information regarding the filling, handling and storage requirements for aluminium beverage cans relevant to your product (including seaming specifications and checks, fill levels/headspace, carbonation/DO targets, temperature controls, rinsing/cleaning, and any pasteurisation/retort or hot-fill conditions).
      3. To the fullest extent permitted by law, you are solely liable for, and we are not liable for, any Loss or claim arising from or connected with filling, seaming, handling, processing, storage or distribution of the Products by you or any third party engaged by you.
    10. You acknowledge that suitability of the Products depends on the contents, formulation, carbonation, processing conditions and storage. If the Products are intended to be filled with any product other than beer (including but not limited to; pre-mixed spirits, wine, cider, seltzers, soft drinks, kombucha, coffee, dairy, juices or any other non-beer beverage), you must conduct appropriate compatibility/corrosivity/bench testing (including shelf-life testing) for the intended formulation and process conditions before commercial filling and distribution. If you do not, you assume all risk associated with the use of the Products for that application.
  4. Our obligations
    1. Where we have accepted an Order in accordance with clause 2.1, we will use best endeavours to manufacture and supply the Products in accordance with the relevant Design Specifications and in such quantities and to such locations as set out in the Order. 
    2. You acknowledge and agree that:
      1. we will use reasonable endeavours to ensure the Products reflect the Design Specifications but cannot guarantee exact compliance and you acknowledge and agree there may be slight variation in final product (including to colour matches, fonts and graphics);
      2. the manufacture of the Products is subject to numerous circumstances beyond our control (including your delivery of clear Design Specifications compliant with our Design Checklist, your Acceptance of the Digital Proof, raw material and Product availability); and 
      3. any failure to manufacture or supply the Products as a result of circumstances beyond our control will not constitute a breach of this agreement. 
    3. We may subcontract the manufacturing and/or supply of the Product to third parties.
    4. We will advise you of:
      1. any change or threat to availability of the Products; and
      2. any change to the Fees. 
  5. Warranties
    1. You represent and warrant all information and material you provide in connection with the agreement, including the Design Specifications:
      1. is, to the best of your knowledge, accurate, complete and current;
      2. does not infringe the Intellectual Property Rights of any person; and
      3. is not unlawful or fraudulent.
    2. Each party represents and warrants to the other that, to the best of its knowledge, each of the following statements is true, accurate and not misleading as at the date of this agreement and will be true and accurate on each day during the Term:
      1. it has the corporate power to enter into and perform its obligations under this agreement and to carry out the transactions contemplated by this agreement; and
      2. there are no pre-existing rights or obligations which would prevent it from complying with its obligations under this agreement.
  6. Delivery of Products
    1. The Products will be shipped by us to the Delivery Point, unless otherwise agreed between the parties. We will use reasonable endeavours to ensure these are delivered by the Delivery Date. 
    2. If you arrange an alternative third party contractor to collect/deliver the Products or collect the Products yourself, we are not liable to you for any damaged Products or for the safe delivery of the Products. You are solely responsible and liable for such shipping. 
    3. We may deliver Orders by instalments and reserve the right to invoice you separately for each instalment.
    4. You will submit a claim to us detailing any Defects, incorrect shipments or shortages within 3 days of receipt or collection of the Products. with evidence of any Defects (including clear, time stamped photographs), incorrect shipments or shortages (the Claim).
    5. We reserve the right to review any Claim, including testing any Product that is the subject of the Claim. You must provide us all reasonable assistance to undertake such review.  We will resolve the Claim in accordance with any applicable laws, including as set out in clause 6.6 .
    6. To the fullest extent permitted by law, our sole liability in respect of any such Defects, incorrect shipments, or shortages, is to we will replace or provide you with a credit (at our option) for any such Defects, incorrect shipments or shortages reported to us in accordance with clause 6.4, unless the damage has been caused by you, or a third party engaged by you.
  7. Fees and payment
    1. We may increase the Fees where:
      1. you have delayed or rendered more difficult our performance or completion of that component;
      2. the volume of Product is greater than, or less than 15% of the amount agreed pursuant to an Order; 
      3. we were given misleading, inappropriate or incorrect instructions or non-conforming Design Specifications; 
      4. more than three (3) revisions of the Digital Proof; or 
      5. increases in the costs of raw materials we require or if the Consumer Prices Index exceed 3% in any 12 month period. 
    2. We will issue an invoice to you upon shipment of any Products to you. The invoice will include the Fees, including the freight costs (as outlined in the Fees). 
    3. If you elect to collect the Products yourself or engage an external third party to deliver the Products, we will issue an invoice before collection of the Products for the Fees, not including freight costs.
    4. You must pay the invoiced amount for the Products to us in accordance with the Payment Terms.  
    5. If you fail to pay an undisputed amount by the due date, we are entitled, without limiting any other rights available to us, to:
      1. suspend delivery of any Products;
      2. charge interest on the amount due at the rate of 2% per month from the due date until overdue amounts are paid in full; and
      3. be reimbursed for any debt collection expenses incurred by us as a result of your failure to pay when due. 
    6. All amounts under this agreement are expressed on a GST-exclusive basis.  If GST is payable in relation to a taxable supply, the amount payable for that taxable supply is the amount for that taxable supply plus GST.  
  8. Title and risk
    1. For the purposes of this clause 8, the terms ‘financing statement’, ‘financing change statement’, ‘security agreement’ and ‘security interest’ have the meanings set out in the PPSA.
    2. You acknowledge and agree that:
      1. this agreement constitutes a security agreement and a PMSI for the purposes of the PPSA; and
      2. a security interest is taken in all Product previously supplied by us to you (if any) and all Product that will be supplied in the future by us to you during the continuance of the parties relationship.
    3. You agree to do anything (including obtaining consents, signing or producing any further documents, and/or providing any further information) which we ask and consider necessary for the purposes of:
      1. ensuring that the security interest is enforceable, perfected and otherwise effective; and/or
      2. enabling us to apply for any registration, complete any financing statement, financing change statement or give any notification, in connection with the security interest; and/or
      3. enabling us to exercise rights in connection with the security interest.
    4. Everything we are required to do under this clause 8 is at your expense. 
    5. You waive any rights you may have to receive notices under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 134(1) and 135 and 157 of the PSSA.
    6. The parties agree that sections 96 and 117 of the PPSA do not apply to these terms and conditions.
    7. You waive any rights you may have under sections 142 and 143 of the PPSA.
    8. Neither the us or you will disclose information of the kind mentioned in section 275(1) of the PPSA, and you will not authorise, and will ensure that no other party authorises, the disclosure of such information.
    9. Clear, unencumbered and absolute title in the Products will be transferred to you at the time that is the later of full payment for, or delivery to, or collection of, the Products by you or a third party authorised by you.
    10. Risk in the Products will pass to you upon delivery to, or collection of, the Products by you or a third party authorised by you.
    11. For the purpose of this clause 8, the following definitions apply:
      1. PPS Law means the PPSA and any amendment made at any time to the Corporations Act 2001 (Cth) or any other legislation as a consequence of the PPSA. 
      2. PPSA means the Personal Property Securities Act 2009 (Cth).
      3. PMSI has the meaning given to it in the PPSA
  9. Change requests 
    1. You may request a variation to an Order (including a change to the scope) by submitting a change request to us and we may propose a variation order in such form as we determine, which will detail applicable amendments to the timetable and fees. 
    2. You may approve the variation order in writing or by email.  
  10. Intellectual property rights
    1. The ownership of the Intellectual Property Rights in any pre-existing materials as at the Start Date (Pre-existing IP) will not be altered, transferred or assigned. 
    2. You represent and warrant that you own, or are licensed to use, all the Intellectual Property Rights you provide to us in connection with the manufacturing and supply of the Products including the Design Specifications (Your Content).  
    3. You grant us a royalty-free, non-exclusive and non-transferable right to use and reproduce Your Content as required under this agreement.  
    4. You consent to us naming you as a client and reproducing your logo for marketing and publicity purposes. 
  11. Confidentiality
    1. Each party must keep all Confidential Information confidential and use such information for the sole purpose of performing the obligations under this agreement.
    2. Neither party may use or disclose the Confidential Information except:
      1. to that party’s employees or advisers on a need-to-know basis and that party must ensure that such persons understand and comply with the obligations imposed by this agreement;
      2. as required by law, subject to that party notifying the other party immediately if that party becomes aware that such disclosure may be required; or
      3. with the other party’s prior written consent.
  12. Liability
    1. To the fullest extent permitted by law:
      1. we supply the Products on an as-is and as-available basis, and you acknowledge and agree it is your sole responsibility for determining the suitability of our the Products; 
      2. we are not liable for any Loss arising in connection with the Products, Acceptance of the Digital Proof, or any information, material or content provided by you or your third party supplier; 
      3. without limiting clause 6, our aggregate liability in connection with this agreement whether in contract, tort (including negligence), statute or otherwise is limited to, at our option:
        1. the replacement, repair or resupply of the Products; or 
        2. the cost of replacing, repairing or resupplying the Products,

but will not exceed an amount equal to the Fees paid by you to us under the Order to which the liability relates; and

  1. we are not liable, whether such liability is based on breach of contract, tort (including negligence), statute or otherwise for any Consequential Loss, indirect, incidental, punitive or special Losses of any kind (including loss of profit, loss of opportunities or business interruption).
  2. We are not liable for any Loss arising from the contents, formulation, filling/processing conditions, storage or shelf-life performance, including where you have not completed compatibility/bench testing.
  3. Subject to any express warranties in this agreement but otherwise to the fullest extent permitted by law, we expressly exclude all warranties, conditions and representations in whatever form, relating to the Products, including any warranties or representations relating to performance, quality, fitness for use or the security and operation of the Products.  
  4. Indemnity

You indemnify us from and against all claims, liability, loss, damage, expenses and costs (including legal costs on a full indemnity basis) arising directly or indirectly from or in connection with:  

  1. any breach of this agreement, negligence, fraud or wilful misconduct by you, your officers, employees, contractors and agents; 
  2. personal injury or death, or property loss or damage; and 
  3. any claim that Your Content is unlawful or infringes the Intellectual Property Rights or other rights of any person. 
  4. Termination
    1. You may terminate:
      1. this agreement on 7 days’ written notice; and
      2. an Order on at least 28 days’ written notice, 

to us. 

  1. We may terminate this agreement and/or an Order on 7 days’ written notice to you. 
  2. The termination of:
    1. this agreement will not affect the validity of any Order which is in force on the date of termination; and 
    2. any Order will not affect the validity of this agreement or any other Order.
  3. If either party terminates the agreement in accordance with clause 14.1 or 14.2, termination will take effect upon completion of the final Order in place between the parties. 
  4. If either party terminates an Order in accordance with clause 14.1 or 14.2:
    1. you must pay all outstanding Fees owed to us as at the date of termination attributable to any Products provided by us up to and including the date of termination; and
    2. you will be released from any obligation to pay any Fees attributable to Products not actually provided as at the date of termination. 
  5. Either party may terminate the agreement or any Order on notice if the other party:
    1. fails to remedy a breach within 21 days’ notice from the other party requesting the breach be remedied; 
    2. breaches this agreement and that breach is not capable of remedy; or 
    3. becomes insolvent or enters into liquidation.
  6. Upon expiration or termination of this agreement:
    1. you must pay us any outstanding amounts for Products delivered to you within 10 Business Days; and
    2. you must immediately return any material supplied by us including our Confidential Information.
  1. Force Majeure
    1. If a party is affected by a Force Majeure Event, it must give the other party a notice containing full particulars of the Force Majeure Event (including its nature and likely duration), the obligations under the agreement that are affected and the nature and extent of the effects of the Force Majeure Event on those obligations (excluding any obligations to pay Fees owed under this agreement).
    2. A party affected by a Force Majeure Event will not be required to perform its obligations under this agreement to the extent they are affected by the Force Majeure Event, from the date of the notice under clause 15.1 until the Force Majeure Event has ceased.
  2. Notices
    1. A notice, consent or other communication under this agreement is only effective if it is in writing, signed by or on behalf of the party giving it and it is received in full and legible form at the addressee’s address or email address.  
    2. A notice is deemed to have been received: 
  1. if posted:
    1. within Australia, on the second business day after posting; or
    2. in any other case, on the tenth business day after posting;
  2. if delivered personally, upon delivery;
  3. if sent by email, the earlier of when the sender receives an automated message confirming delivery or within 24 hours after the message has been sent (as recorded on the device from which the sender sent the message).
  1. General 
    1. Nothing in the agreement will be taken as giving rise to a relationship of employment, agency, partnership or joint venture.
    2. You or we may not assign or transfer the agreement without the written consent, which must not be unreasonably withheld. 
    3. The agreement contains the entire understanding between you and us concerning the subject matter of the agreement and supersedes all prior communications.  
    4. The agreement may not be varied unless the variation is in writing and signed by you and us. 
    5. If any term or provision of this agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable under any applicable law, that term or provision will be deemed severed from this agreement, and the remaining terms and provisions will be unaffected.
    6. The failure of either party to enforce any provisions under this agreement will not waive the right of such party thereafter to enforce any such provisions.  
    7. Any warranty, indemnity, or obligation of confidentiality in this agreement will survive termination.  Any other term which by its nature is intended to survive termination of this agreement survives termination of this agreement. 
    8. The agreement is governed by, and construed in accordance with, the laws of New South Wales, Australia.  You and we agree to submit to the non-exclusive jurisdiction of the courts of New South Wales. 
  2. Definitions
    1. In this agreement:

Business Day means a day, between 8:00am and 5:00pm that is not a Saturday, Sunday, bank holiday or a public holiday in New South Wales, Australia or in the state, province, city, or equivalent that you are located (as the context requires). 

Confidential Information means confidential, proprietary and commercially-sensitive information (irrespective of the form or the manner in which the information is disclosed, or the time of such disclosure) including information which: 

  1. is identified as confidential or ought to have been known to be confidential; and
  2. relates to the business affairs and practices, including financial information, business opportunities, business plans, business processes and methodologies,

but does not include information which is in, or comes into, the public domain other than by a breach of this agreement, or which is independently known to the other party as evidenced by its written record.

Consequential Loss means any Loss that does not arise naturally in the ordinary course of things from the event or circumstance giving rise to the Loss.

Defects means non-compliance with the Design Specifications. 

Delivery Date means the date you have requested we deliver the Products to you by, as set out in the Order or as agreed between the parties. 

Delivery Point means the location you have requested we deliver the Products to, as set out in the Order. 

Design Checklist means the checklist and requirements for any design, set out at Schedule 1.

Design Specifications means a document setting out the digital printing design (i.e. the artwork) for each Product to be manufactured and supplied pursuant to this agreement, and which complies with our Design Checklist. 

Digital Printing Request means a written order for Products. in compliance with the form in the link provided here. 

Fees means all fees and charges payable by you to us under the agreement.  

Force Majeure Event means any act, event or cause including earthquakes, cyclones, floods, fires, lightning, storms or other acts of God, pandemic, strikes or industrial disputes, riots, terrorist acts, civil disturbances, breakages of machinery, or industrial conditions, or arising out of any other unexpected and exceptional cause, delays in transportation and dispositions or orders of governmental authority, which:

  1. directly or indirectly results in a party being prevented from or delayed in performing any of its obligations under this agreement; and
  2. is beyond the reasonable control of that party.

GST has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth). 

Initial Term means the period set out in the Key Details. 

Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, confidential information, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registered, registrable or patentable.

Loss means any judgment, debt, damage, loss, cost, expense or liability howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, or otherwise.

Online Portal means the online portal where you will review and approve the Digital Proof 

Order has the meaning given to that term in clause 2.1.

Order Confirmation means our approval of the Digital Printing Request in writing.

Payment Terms means the payment terms set out in the Key Details. 

Pre-Existing IP has the meaning given to that term in clause 10.1. 

Ordering Timeframe means Acceptance of Digital Proof is to be made no less than:

  • 5 weeks prior to delivery for Sleek (330ml or 335ml) and Classic (also referred to as Standard) (250ml) cans; and 
  • 3 weeks prior to delivery for all other cans (330ml, 335 ml, 375ml, 440ml, and 500ml).

Products means sleek or classic beverage cans digitally printed in accordance with the Design Specifications. 

Renewed Term has the meaning given to that term in clause 1.

Term has the meaning given to that term in clause 1.2.

Your Content has the meaning given to that term in clause 10.2.

  1. In this document unless the context otherwise requires:
    1. clause and subclause headings are for reference purposes only;
    2. the singular includes the plural and vice versa; 
    3. where a word or phrase is defined its other grammatical forms have a corresponding meaning;
    4. references to statutes include all statutes amending, consolidating or replacing such statutes;
    5. $ means the lawful currency of Australia;
    6. any reference to a party to this document includes its successors and permitted assigns; and
    7. the use of the word “includes” or “including” is not to be taken as limiting the meaning of the words preceding it.