The parties agree as follows:
The following definitions apply in this document:
Approval means any permit, consent, authorisation, registration, certificate, endorsement, licence (including process licences), approval, exemption or similar requirement from an Authority.
Authority means any:
- government department;
- local government;
- governmental or statutory authority; or
- other party which has a right under a Law to impose a requirement.
Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Victoria.
Company means Vitasoy Australia Products Pty Ltd ACN 088 959 835.
Conditions means these terms and conditions and any other terms applicable to the provision of the Deliverables agreed in writing by the parties.
Confidential Information means any document, information, data or other Material, however held or recorded, relating to the Company, its business or assets, including financial or taxation information, information relating to customers or suppliers, business and marketing plans, particulars of employees or contractors, product formulations and manufacturing processes, the terms of the Contract and any other information that the Company identifies as confidential, or the recipient knows, or ought to know, is confidential to the Company, including the Contract.
Contract means the contract for the supply of the Deliverables by the Supplier to the Company established in accordance with these Conditions and the Order.
Defect means any defect, fault or omission in a Deliverable or where a Deliverable does not comply with the requirements in the Contract. “Defective” has the corresponding meaning, other than where this is caused by a negligent or wilful act of the Company.
Defects Liability Period means 12 months from the date the applicable Deliverable is accepted by the Company, unless otherwise specified in an Order.
Deliverable means any Goods, Services and any other deliverables specified in the Order.
Goods means the goods to be supplied by the Supplier to the Company under the Contract, as described in the Order or otherwise agreed by the parties in writing.
GST means a goods and services tax imposed by or under the GST Law.
GST Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended) and any regulation made under that Act.
Insolvency Event means the happening of any of the following events:
- in relation to a corporation:
- an application is made to a court for an order, or an order is made, that the corporation be wound up;
- an official or provisional liquidator, trustee, administrator (whether voluntary or otherwise) or receiver is appointed in relation to the corporation or any of its assets or any action is taken for the appointment of such a person; or
- the corporation is, states that it is, or becomes unable to pay its debts when they fall due or is deemed unable to pay its debts under the Corporations Act 2001 (Cth); and
- in relation to an individual:
- the person is unable to pay his or her debts as they fall due or otherwise becomes insolvent or bankrupt;
- the person dies; or
- the person becomes incapable of managing his or her own affairs for any reason.
Intellectual Property Rights means all present and future intellectual property rights including, without limitation, copyright and neighbouring rights, all proprietary rights in relation to inventions (including patents), trademarks (whether registered or not), Confidential Information (including trade secrets and know how), registered designs, brand names, trade names and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific literary or artistic fields, whether registrable or not and wherever existing in the world.
- Commonwealth and State legislation including regulations, by–laws or other subordinate legislation; common law and equity;
- requirements of Authorities and Approvals; and
- guidelines of the Commonwealth, State and local governments and Authorities with which the Supplier is legally required to comply.
Material means any material in any medium or form, including documents, equipment, software, goods, images, videos, websites, merchandise, other information and data stored by any means including:
- all copies and extracts;
- any updates or enhancements; and
- any developments, of such materials.
Moral Rights means rights of integrity of authorship, rights of attribution or authorship, rights not to have authorship falsely attributed, and rights of a similar nature conferred by statute in anywhere in the world that may now exist or that may come to exist in relation to the work.
Order means a purchase order for the Goods and/or Services given by the Company to the Supplier which incorporates or refers to the Conditions.
Party means the organisations entering a Contract, namely the Company or the Supplier; and Parties means both organisations.
Personal Information has the meaning given in the Privacy Laws, where such information is collected, used, disclosed, stored, handled or otherwise processed by the Supplier for the purposes of the Contract.
Personnel means an officer, employee, agent, contractor or consultant of the relevant party. In respect of the Supplier, Personnel includes any subcontractors and the Personnel of those subcontractors.
Policies and Procedures means the Company’s policies, codes of conduct, rules, standards and procedures and workplace health and safety policies, as notified to the Supplier in writing as at the date of the Contract or otherwise in accordance with clause 3(d), including the ‘Supplier Code of Conduct’ issued by the Company from time to time.
Price means the price payable for the Deliverables as identified in the Order or otherwise agreed by the parties in writing.
Privacy Laws means the Privacy Act 1988 (Cth) and any other legislation affecting privacy, personal information or the collection, handling, storage, processing, use or disclosure of data that applies to the Company, the Supplier or any other recipient of Personal Information.
Related Body Corporate has the meaning given in the Corporations Act 2001 (Cth).
Services means the services to be supplied by the Supplier to the Company under the Contract, as described in the Order or otherwise agreed by the parties in writing.
Specifications means the specifications as to the type and quality of the Deliverables described in the Order or otherwise agreed by the parties in writing.
Standard means the standards and codes (including standards published by Standards Australia) which by Law, the terms of the Contract or common industry practice are commonly applicable to deliverables that are of a same or similar type as the Deliverables.
Supplier means the organisation providing the Goods and/or Services to the Company as identified in the Order.
Tax Invoice means a tax invoice under the GST Law.
Taxable Supply means the same as in the GST Law.
2. ORDER CONDITIONS
- The Company and the Supplier identified in the Order agree that the terms and conditions of the Contract govern the supply of the Deliverables to the Company. If the Supplier provides terms and conditions to the Company in respect of the Deliverables, to the extent permitted by law, those terms and conditions will have no legal effect and will not constitute part of the agreement between the Supplier and the Company in respect of the Deliverables unless the Company signs those terms.
- These Conditions do not apply if there is another signed contract between the Supplier and the Company for the supply of the same Deliverables.
- The supply or agreement to supply the Deliverables under each Order will give rise to a separate Contract. Any forecast provided by the Company of its future requirements is indicative only and will not be binding on the Company.
3. SUPPLIER’S GENERAL OBLIGATIONS
- The Supplier must provide the Deliverables to the Company in accordance with the Contract and the Company’s delivery instructions.
- The Supplier must always:
- perform its obligations by any applicable deadlines, due dates and timelines;
- provide all necessary equipment and facilities to provide the Deliverables; and
- control, coordinate, supervise, direct and provide all activities necessary to provide the Deliverables in accordance with the Contract.
- The Supplier must, at all times comply with all Laws, Standards and the Policies and Procedures which apply in connection with this Contract (and ensure that its Personnel do the same).
- If the Company wishes to amend the Policies and Procedures which apply in connection with this Contract during the term of the Contract, the Supplier must first consent to the application of those amendments to it to the extent they have a detrimental impact on the Supplier.
4.1. Delivery of Goods
Unless otherwise agreed in writing by the Company, the Supplier must:
- deliver the Goods to the delivery point (Delivery Point) between 9am and 5pm on the delivery due date as specified in the Order; and
- unload the Goods at the Delivery Point in accordance with the Company’s reasonable directions.
4.2. Ownership and risk
- Ownership of the Goods will pass to the Company upon the earlier of payment by the Company or delivery.>
- The Supplier is responsible for the care of the Goods, and the Goods will be at the risk of the Supplier, until the date(s) the Goods are actually received by the Company in accordance with clause 4.1.
- The passing of ownership or the delivery of the Goods to the Company does not constitute acceptance of the Goods and does not affect any of the Company’s rights under the Contract in relation to Defects.
- If the Goods are damaged or destroyed during the period that the Supplier is responsible for their care, the Supplier must as soon as possible, and at its cost, make good that damage so that the Goods comply with the Contract.
- The Company may use the Goods after they are received by the Company in accordance with clause 4.1. Use of the Goods by the Company will not prejudice the Company’s right to exercise any of its rights in the Contract in relation to Defective Goods.
4.3. Rejection of Goods
- If the Goods to not comply with all applicable legislative and regulatory requirements and safety standards or the requirements set out in the Contract, the Company may issue a notice of rejection to the Supplier, in which case the Goods are rejected by the Company.
- If the Goods are rejected in accordance with clause 4.3(a), the Company may direct the Supplier to take whatever steps are required to rectify or replace the Goods so that they comply with the Contract.
- During the applicable Defects Liability Period:
- the Company may direct the Supplier to rectify any Defect in a Good or re-perform a Defective Service; and
- the Supplier must, at its own cost, rectify any Defect in that Good or re-perform that Defective Service if the Company directs the Supplier to rectify a Defect under clause 5(a)(i) – within the time reasonably directed by the Company (or, if no time is specified, as soon as reasonably possible after the Supplier receives the direction), and if the Supplier becomes aware of the existence of any Defect in the Deliverable – as soon as possible after the Supplier becomes aware of the Defect.
- The Supplier must ensure that rectification services cause as little inconvenience as is reasonably possible to other persons using the Deliverable.
- If the Supplier fails to comply with any of its obligations under clause 5(b), the Company may have any of the rectification services carried out by a third party. The cost of any rectification services incurred by the Company is a debt due from the Supplier to the Company.
6. PAYMENT AND INVOICING
Subject to the proper performance of the Supplier’s obligations under the Contract, the Company will pay the Price for the Deliverables in accordance with this clause 6.
Unless otherwise specified in the Order, the Price is deemed to include, and the Supplier is responsible for the payment of, all costs associated with the delivery of the Goods or the performance of the Services, including all packaging and transportation costs, the costs of insuring the Goods up to the time of delivery, all costs of importing the Goods and clearing them through customs and all travel and accommodation costs of the Supplier’s Personnel. If the Company agrees to reimburse any costs incurred by the Supplier in connection with the supply of the Deliverables, the Supplier must provide all documents and information required by the Company in relation to those costs prior to reimbursement.
No change to the Price will be made without the prior written approval of the Company.
- Payment will not be due until the Company receives a correctly rendered Tax Invoice. Each invoice for the Deliverables must satisfy the requirements of a Tax Invoice and clearly show all relevant data and calculations and other information reasonably requested by the Company, including any Order number.
- Where a Tax Invoice is found to have been incorrectly rendered after payment by the Company, the underpayment or overpayment will be received by or from the Supplier.
6.3 Timing and effect of payment
- Unless otherwise agreed, the Company will pay all undisputed amounts for the Deliverables supplied 30 days after the month end following the month of invoice for those Deliverables received by the Company.
- Where the Company, acting reasonably, queries or disputes a fee or expense included in a Tax Invoice, the Company does not have to pay the Tax Invoice until the query or dispute is resolved.
The party may set-off any amounts owing by the other party to it against amounts due and payable by the first party.
Unless otherwise specified in the Order, the Price is exclusive of GST. If the sale of the Deliverables constitutes a Taxable Supply, the Company will pay the GST applicable to that supply, subject to the Supplier providing a Tax Invoice in respect of the supply and the Supplier being registered for GST purposes.
8. CONFIDENTIAL INFORMATION
The Supplier must:
- not use or disclose or otherwise make available any Confidential Information to any person except to its Personnel on a need to know basis and confidential basis to perform the Contract;
- only use the Confidential Information in connection with the supply of the Deliverables;
- not make any public statements about the Contract or the Supplier, without the Company’s written prior consent;
- not use the Company’s name, logo, trade name, trademarks, symbols or any other designation or Intellectual Property Right of the Company in any manner; and
- not refer to the Company, or any event conducted by the Company in any of the Supplier’s advertising, informational or promotional material, including the Supplier’s website.
- The Supplier must ensure that all of its dealings with Personal Information in connection with the Contract comply with:
- applicable Privacy Laws; and
- to the extent that different Privacy Laws apply to the Supplier, the obligations applicable to the Company under the Privacy Laws as if they were binding on the Supplier.
- After becoming aware of any actual or suspected unauthorised access, modification, use, disclosure, loss of or interference with Personal Information (a Data Breach), the Supplier must immediately notify the Company, including providing a description of the Data Breach and the types of information impacted by the Data Breach.
10. INTELLECTUAL PROPERTY RIGHTS
- The Supplier is not entitled to use any of the Company’s Intellectual Property Rights without the prior written approval of the Company. If the Company gives its approval, the Supplier is only entitled to use the Intellectual Property Rights for the purpose of supplying the Deliverables to the Company.
- The Supplier warrants that the Company’s use (and the use by the Company’s licensees, successors in title and anyone authorised by any of them) of the Goods will not infringe any Intellectual Property Rights or Moral Rights of any person nor give rise to any liability to make royalty or other payments to any person.
- The Supplier must obtain from all persons who have Moral Rights in connection with any Goods, all necessary written consents and waivers in a form acceptable to the Company such that the use of the Goods in the manner contemplated by this Contract or in any other way by the OC, its licensees, successors in title and anyone authorised by any of them to do acts comprised in the copyright of the Goods will not infringe any person’s Moral Rights.
11. WARRANTIES AND INDEMNITY
11.1 Mutual warranties
Each Party represents, warrants and agrees to the other that, as at the date of the Order:
- it has full legal capacity or corporate power (as applicable) to execute, deliver and perform its obligations under the Contract; and
- the Contract constitutes a legal, valid and binding obligation of it, enforceable in accordance with its terms.
11.2 Supplier warranties
In addition to any statutory warranties that may apply, the Supplier represents, warrants and agrees that:
- it holds and will maintain all necessary Approvals in relation to supplying the Deliverables;
- all of its Personnel are, and will remain, appropriately qualified, trained and experienced to perform the tasks assigned to them in relation to the Contract;
- the Deliverables will be fit for the purpose specified in and will conform in every way, or otherwise which an experienced professional supplier would reasonably infer from, the Contract;
- the Deliverables will conform to the requirements, specifications, drawings, samples or other description furnished or approved by the Company;
- the Deliverables will conform to all applicable legislative and regulatory requirements;
- the Deliverables will be provided in accordance with the Company’s reasonable directions;
- the Deliverables will not infringe any Intellectual Property Rights or Moral Rights of others;
- the Deliverables are of good material and workmanship and are free from defect or fault of any kind;
- the Deliverables are free from any charge or other encumbrance;
- where any of the Goods supplied under the Contract are subject to a manufacturer’s warranty, it will provide details of the warranty to the Company and ensure that the Company has the benefit of the warranty;
- it will supply the Deliverables:
- with all due care, skill and expertise and in a punctual, good, proper and professional manner; and
- within Australia, unless the Company has consented to the Deliverables being supplied outside Australia.
The Supplier indemnifies the Company, its Related Bodies Corporate and each of its and their respective Personnel (the Indemnified Parties) against, and must pay the Indemnified Parties on demand, the amount of any loss, damage, liability or obligation, tax, compensation, fine, penalty, charge, payment, cost or expense (including any legal cost and expense on a full indemnity basis) which the Indemnified Parties suffer or incur arising out of or in connection with:
- any loss of, or damage to, any tangible personal property caused by any negligent act or omission of the Supplier or any of its Personnel;
- any personal injury (including sickness or death) caused by any negligent act or omission of the Supplier or any of its Personnel;
- any breach of any privacy, data or information security requirement under the terms of the Contract;
- any claim by a person that their Intellectual Property Rights are being, or may be, infringed by the Deliverables or the use of any Material provided by the Supplier under the Contract; or
- any wilful, fraudulent, or illegal act, error or omission (including wilful misconduct) of the Supplier or its Personnel.
11.4 Exclusion of indirect loss
No Party is liable for any loss that does not naturally arise according to the usual course of things, loss of profits, revenue, contract value, anticipated savings, opportunity, anticipated savings or goodwill or damage to reputation or special, incidental or indirect damages.
12. FORCE MAJEURE
To the extent permitted by Law, the Parties are not liable for failure to comply with these Conditions if the failure (directly or indirectly) arises out of any circumstances which are not within the Parties’ reasonable control (including but not limited to strikes, lock outs, accidents, war, fire, flood, drought, explosion, shortage of power, breakdown of plant or machinery, shortage of raw materials from normal source of supply, act of God or any order or direction of any local, State or Federal Government, Government authority or instrumentality). If such circumstances occur, either Party may terminate the Contract in whole or in part by notice in writing immediately.
Unless otherwise specified in the Order, the Supplier must hold and maintain the following insurance:
- public liability insurance for an amount of at least $20 million or such other amount as may be agreed;
- comprehensive motor vehicle insurance as required by Law; and
- any other insurance required by the Company and notified to the Supplier.
The Supplier must provide to the Company, on request, evidence that the insurance required under this clause is in place.
14. TERMINATION AND CANCELLATION
14.1 Mutual termination rights
Either Party may terminate the Contract in whole or in part by notice in writing immediately, if the other Party:
- commits a material breach of the Contract and, where the breach is capable of remedy, a period of 7 days has expired from the other Party notifying the first Party of the breach without the other Party remedying the breach;
- commits a material breach of the Contract, which is not capable of remedy; or
- is subject to an Insolvency Event.
- The Company may cancel an Order prior to delivery occurring in accordance with clause 4.1, in whole or in part, upon written notice to the Supplier for any reason.
- If the Company cancels the Order without cause, the Company must notify the Supplier in writing and the Company will not have any liability to the Supplier for any costs, except for any reasonable direct costs actually incurred by the Supplier prior to cancellation of the Order and supported by reasonable documentary evidence to the Company’s satisfaction (acting reasonably).
Clauses 1, 8, 9, 10, 11, 13, 14 and 15 survive the termination or expiry of the Contract (including the cancellation of any Order).
15.1 Provision of information
The Supplier must promptly provide all information that the Company reasonably requests in relation to the Deliverables. The Supplier must also do all things reasonably requested by the Company, including providing information and documents, to enable the Company to review and assess the Supplier’s compliance with the requirements of the Contract.
15.2 Mandatory notification
Without limiting the Supplier’s obligations under the Contract, the Supplier must promptly notify the Company of the following:
- any proposed change relating to the production of the Goods, including a change to the source or nature of raw materials or processes used in the production of the Goods or any change with may affect the Specifications;
- any change to the name, address or ownership of the Supplier, or of the location in which the Goods are produced; and
- any proposed material changes to the Supplier’s operations that may adversely impact on compliance by the Goods with the Specifications or other requirements of the Contract.
15.3 Access to Premises
The Supplier must, subject to receiving at least 5 days prior notice from the Company, allow the Company’s Personnel access to the Supplier’s premises for the purposes of reviewing and auditing compliance with the Specifications and any other quality standards applicable to the Deliverables. The Company’s Personnel will conform to all reasonable conditions of entry to the Supplier’s premises for the purposes of this clause.
15.4 Ownership of documents
The Company owns all drawings, specifications, instructions, manuals, reports or other documents provided by the Company to the Supplier or produced by the Supplier in connection with the supply of the Deliverables, and any Intellectual Property Rights in them. The Supplier assigns to the Company all Intellectual Property Rights that it may acquire in any such drawings, specifications, instructions, manuals, reports or other documents.
15.5 Governing law
The Contract will be governed by the laws of the State of Victoria, Australia and the Parties submit to the non-exclusive jurisdiction of the courts of that State and any courts which have jurisdiction to hear appeals from them.
15.6 Assignment and subcontracting
- The Supplier cannot assign, novate, transfer, mortgage, charge or otherwise deal with or dispose of any of its rights, title or interest in the Contract without the prior written consent of the Company.
- The Supplier will not subcontract its obligations under the Contract without the Company’s prior written consent.
- Where the Company consents to a subcontractor and the Supplier subcontracts its obligations, the Supplier will be liable to the Company for the acts, errors and omissions of subcontractors and their Personnel as if they were the acts, errors or omissions of the Supplier.
15.7 Fraud and corruption
The Company will not tolerate any acts of attempted acts of fraud or corruption in any form whether direct or indirect. The Company considers fraud or corruption as a very serious offence and may result in criminal proceedings, other penalties and disciplinary action. Any suspected incidences of fraud or corruption must be reported to the Company immediately.
- Any provision of these Conditions which is void or unenforceable may be severed without affecting the enforceability of other provisions.
- Subject to clause 2(b), the Contract contains the entire agreement between the Parties about its subject matter. Nothing in the Contract limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law.
- No waiver by the Company of a breach of the Contract by the Supplier will constitute a waiver for any subsequent or continuing breach by the Supplier.
- The Supplier is engaged as an independent contractor and is not an employee, partner or joint venturer of the Company. The Supplier does not have the authority to bind the Company by contract or otherwise. The Supplier will not represent to any party that the Supplier is an employee or agent of the Company.
- The Contract can only be varied by written agreement of the Parties.
A notice under the Contract will be deemed to be given:
- if posted – two (2) Business Days after the date of posting;
- if delivered by hand during a Business Day – on the date of delivery; or
- if transmitted by email or other electronic means – when it becomes capable of being retrieved by the addressee at the relevant email or other electronic address.
However, a notice received after 5.00pm or on a day that is not a Business Day is deemed to be delivered on the next Business Day.