Regal Cream Products Pty Ltd trading as Bulla Dairy Foods (Bulla) requires that the supplier or contractor (the Supplier) specified in a Bulla purchase order (the Order) supply Bulla with the goods (the Goods) and/or services (the Services) specified in the Order and the Supplier has agreed to provide the Goods and/or Services on the following terms and conditions:
The Order is Bulla’s offer to the Supplier for the Supplier to supply the Goods and/or the Services described in the Order to Bulla on the terms and conditions contained in this document to the exclusion of all terms and conditions stated by the Supplier in providing a quotation or otherwise. Acceptance of the Order by the Supplier shall constitute a binding contract between Bulla and the Supplier to supply the Goods and/or the Services specified in the Order on the terms and conditions contained in this document.
The following documents shall apply to, and be deemed to be incorporated in, a contract formed by acceptance of the Order (the Contract):
These terms and conditions;
All documents attached to the Order or incorporated into the Order by reference with Bulla’s consent.
If the Supplier is unwilling or unable to accept the offer made by Bulla in the Order under the terms and conditions set out in this document, the Supplier must immediately contact Bulla and advise in writing of any variations it requires. If the Supplier proceeds with the supply of the Goods and/or the Services without first requesting and obtaining written and signed consent from an authorized representative of Bulla to a variation in accordance with this clause 1.3 then it shall be deemed to have accepted the terms and conditions set out in this document.
If a written agreement exists between the Supplier and Bulla for the supply of the Goods and/or the Services, the terms and conditions of the written agreement shall take precedence over these terms and conditions to the extent of any inconsistency.
By entering into the Contract Bulla and the Supplier acknowledge that the terms set out in this document express the entire understanding and agreement between Bulla and Supplier that there have been no representations made by either party to the other except such as are expressly set forth herein.
No terms or conditions submitted by either party that are in addition to, different from or inconsistent with those contained herein or in the Order, including, without limitation, the Supplier’s printed terms and conditions, and any terms and conditions contained in any Supplier’s quotation, invoice, order acknowledgment, confirmation, acceptance, bill of lading or other instrument, shall be binding upon either party unless specifically and expressly agreed to in a writing signed by duly authorised representatives of both parties
The price of the Goods and/or the Services supplied by the Supplier to Bulla pursuant to an Order is the price or prices specified in the Order (Price).
The Price includes all applicable packaging, freight and insurance charges and all taxes, duties, charges, levies and fees payable on or in respect of the Goods and/or the Services, with the exception of GST.
Invoices shall be forwarded to Bulla within seven (7) days of delivery of the Goods and shall always quote Bulla’s Order number. Invoices of the Supplier shall comply with any applicable law and shall clearly state the terms of payment in a manner consistent with the Order. Payment of the Price by Bulla to the Supplier will not be made until an invoice complying with this clause 3(i) has been received by Bulla.
Bulla may withhold disputed amounts until the dispute has settled subject to Bulla giving written notice to the Supplier of the reasons for the dispute. Bulla is entitled to set off against monies otherwise due to the Supplier any monies that may be due or owing by the Supplier to Bulla.
Terms of payment shall be within 63 days from the end of the calendar month in which the invoice is dated.
Goods shall be sold to Bulla Free into Store (F.I.S.).
Delivery of an order F.I.S. shall be completed when the Goods effectively pass onto the premises specified in the Order and an authorised officer of Bulla has signed accepting the Goods. Any additional or special requirements by Bulla as to delivery of the Goods specified in the Order shall be deemed to be a condition of the Order.
Delivery shall be made no later than the date specified in the Order. The Supplier must perform the Services for Bulla by the date/s specified in the Order. If delivery or performance is not made in this time, in strict compliance with all the terms, conditions and other requirements of the Order, the Order may be cancelled, in whole or in part, by Bulla at Bulla’s election.
Delivery shall be effected to Bulla at its election by one or more shipments. If after inspection of the Goods and/or the Services (and irrespective of whether or not an officer of Bulla has signed an acceptance of the Goods and/or the Services) it is found that the Goods supplied or the Services carried out are not as specified in the Order and/or there is a breach of any warranty by the Supplier under the Contract and/or the Goods and/ or the Services are found (in the opinion of Bulla held in good faith) to be unsatisfactory, defective and/or of inferior quality and/or otherwise fail to meet strictly the requirements of the Order Bulla (without prejudice to any other rights it may have) may, although risk may have passed to Bulla or delivery may have been completed:
Elect not to pay the Price (and, to the extent it has already paid the Price, obtain an immediate refund of it); and/or
Attempt, at the risk and expense of the Supplier, to rectify any or all deficiencies in the Goods and/ or the Services; and/or
Require the Supplier to resupply the Goods and/ or the Services at the Supplier’s cost; and/or
Reject the Goods by notifying the Supplier of this rejection. Upon rejection the Supplier shall, at its expense, immediately remove the Goods from Bulla’s premises, failing which Bulla may, at the Supplier’s risk and expense return the Goods to the Supplier or, where the Goods are not in a suitable condition (in the opinion of Bulla held in good faith to be returned, destroy them at the Supplier’s expense.
The Supplier shall promptly (and in any event no later than 24 hours from receipt of Bulla’s request) and at the Supplier’s cost, attend at the place where the Goods were delivered and/or the Services were provided and/ or such other place as is reasonably directed by Bulla upon Bulla’s request for the purposes of:
Rectifying a non-compliance of the Goods and/or the Services with the Contract; and/or
Assisting Bulla to determine if an issue Bulla is experiencing or anticipates that it may experience is caused or contributed to by a non-compliance of the Goods and/or the Services; and/or
Sorting through Goods to ascertain which Goods are defective and/or remove Goods that are defective; and/or
Assisting Bulla to ensure that its production lines continue to run despite a non-compliance of the Goods and/or the Services with the Contract.
In this Clause 4, references to removal, return and destruction expenses include (but are not limited to) the cost of packing, transport and handling where applicable.
Time is of the essence in the performance of the obligations under the Contract. The Supplier shall immediately notify Bulla as soon as it becomes aware of a potential delay together with the circumstances and propose a revised delivery date which Bulla may elect to agree to or not in its absolute discretion.
The Supplier acknowledges that Bulla may terminate the Contract if the Supplier does not provide the Goods
and/or the Services by the date/s specified in the Order and Bulla shall not be liable to pay for any Goods and/or Services which are delivered outside of the date/s specified in the Order.
Property in the Goods shall pass to Bulla from the Supplier upon full payment of the Price or upon delivery, whichever is the earlier.
Risk in the Goods shall pass to Bulla on delivery of the Goods (although property in the Goods may have passed earlier to Bulla).
Bulla reserves the right to inspect the Goods either during and/or after manufacture but before dispatch from the Supplier’s premises. Any such inspection in no way implies acceptance of such Goods by Bulla, or otherwise affects Bulla’s rights in respect of the Goods.
On an order F.I.S. Bulla shall accept “received for shipment” and “container” bills of lading to the order of Bulla or its agents with acceptance by an authorised purchasing officer of Bulla to be on the basis as specified in Clause 1 hereof. The term “bills of lading” includes air consignment notes or air waybills or their equivalent and all other documents the delivery of which is customarily accepted as equivalent to delivery of the Goods thereby represented and shall also include delivery orders.
Where an import or export licence, a foreign exchange control authorisation or similar authorisation is required for the performance of the Contract the party responsible for obtaining the licence or authorisation shall act with due diligence to obtain it to ensure compliance with the requirements of the Contract.
Where Bulla is toreceive Goods especially manufactured for Bulla by the Supplier then the Supplier shall immediately notify Bulla of the grant of, or of any absolute or qualified refusal to grant, a requisite import licence or authorisation or both.
Unless otherwise stated in the Order charges for packing and marking are included. The form and manner of such packing is at the option of Bulla. Special requirements of Bulla shall be notified to the Supplier in sufficient time to enable completion of the Contract in the mode and at the time stipulated. All the reasonable costs of such special requirements shall be to the Supplier’s account.
The Supplier warrants that the Goods:
Shall be of merchantable quality and fit for their intended purpose;
Shall be manufactured and delivered strictly in accordance with the requirements of the Contract, including but not limited to any drawings, specifications and any other instructions of Bulla given for the purposes of the Contract;
Shall be free from defects in design, materials and workmanship;
Do not and will not infringe the intellectual property rights of any third party;
Shall comply with the requirements of any relevant statutes, regulations or legally applicable standards;
Shall be new on delivery to Bulla;
Where Bulla has supplied written specifications and/or requirements the Goods will conform with such specifications and/or requirements; and
Where Goods consist of foodstuffs or to be used as raw materials or ingredients in the manufacture or processing of foodstuffs; The Goods shall be fit for human consumption and free from adulteration or foreign materials and shall comply with all the relevant food and hygiene statutes and regulations both in Australia and in any other such relevant country as to composition, processing (if any), packaging and description.
The Supplier warrants that the Services:
Shall be provided with due care and skill;
Shall be performed strictly in accordance with the requirements of the Contract, including but not limited to any drawings, specifications and other instructions of Bulla given for the purposes of the Contract;
Do not and will not infringe the intellectual property rights of any third party; and
Shall comply with the requirements of any relevant statutes, regulations or legally applicable standards.
The Supplier shall indemnify Bulla from and against any liabilities, damages, remedies, losses (including loss of profits), penalties, fines costs, expenses (including reasonable legal fees and expenses), demands, claims and proceedings of any nature incurred by Bulla and arising directly or indirectly out of or in connection with:
any defect and/or non-compliance of the Goods and/or the Services supplied by the Supplier; and/or
any delay in supply, manufacture or delivery of the Goods and/or the Services; and/or
the non-performance of the Order in any other respect; and/or
any claim or suit for alleged infringement of a third parties intellectual property rights relating to the any use or sale of Goods and/or Services; and/or
any recall or withdrawal of Bulla’s products caused or contributed to by the Supplier.
The Supplier’s liability to indemnify Bulla will be reduced in proportion to the extent that such claims, damages or losses are caused by or contributed to by the negligence of Bulla.
Where the Contract requires the Supplier to prepare or provide any design, formula, specification or drawings, the Supplier agrees to assign to Bulla absolutely:
the copyright subsisting in any work created by the Supplier or any of its employees, agents or subcontractors in the course of providing the Services; and
all rights in respect of any practice, concept, product, process or design the Supplier or any of its employees, agents or contractors creates develops, discovers or first reduces to practice in the course of providing the Services.
The Supplier agrees to sign all documents and do all acts and things necessary to ensure that legal ownership of copyright and other intellectual property rights vests in Bulla.
All reports, correspondence, drawings, plans, computations, specifications, formulations, recipes or similar materials prepared or made by Bulla for any purpose in connection with this Contract or any Order shall remain the property of Bulla and confidential between Bulla and the Supplier and must not be disclosed, copied or used without Bulla’s prior written consent.
Dies, tools, film work, artwork and moulds manufactured or acquired by Bulla remain the property of Bulla. The Supplier must return them to Bulla when requested to do so by Bulla. Where dies, tools, moulds, materials and other similar Goods are supplied by Bulla to the Supplier this is entirely at the risk of the Supplier.
The Supplier warrants that it has obtained and maintains throughout the duration of the Contract all insurance cover required by law and by the Contract including but not limited to:
Public and products liability insurance with a limit of liability of not less than $20,000,000 for any one occurrence; and
All insurances required by law including, but not limited to, workers compensation insurance and motor vehicle third party liability insurance...
Bulla may, without prejudice to any other rights or remedies it has pursuant to this Contract or otherwise, terminate the Contract by notice in writing if:
The Supplier is in breach of any term or condition of the Contract; or
Bulla determines that the Supplier has acted in a manner that is harmful to Bulla’s reputation; or
The Supplier is guilty of serious misconduct, fraud or dishonesty; or
The Supplier is insolvent, bankrupt, has an administrator, receiver or controller appointed or an application is made to wind the Supplier up or any similar action is taken.
If Goods to be supplied under the Contract are of standard stock of the Supplier then Bulla may terminate the Contract by giving written notice to the Supplier and Bulla shall be under no obligation to take any unshipped or undelivered portion of the Goods. Upon termination Bulla shall only be liable to pay for any Goods delivered and/or any Services performed prior to termination.
If the Contract requires Goods to be manufacturer to Bulla’s specifications or requires the Supplier to install or fit Goods, then at any time prior to completion of the work to be performed, Bulla may terminate the Contract by giving written notice to the Supplier and the Supplier shall cease all work from the effective date of termination except as may be otherwise directed by Bulla. Upon termination Bulla shall only be liable for any Goods delivered and/or any Services performed prior to termination plus an additional sum agreed between the parties for any raw materials or parts purchased by the Supplier specifically for Bulla which the Supplier can demonstrate to Bulla’s reasonable satisfaction cannot be used by the Supplier for any other customer.
Termination under this clause 14 shall be effective from the date stated in a notice given by Bulla to the Supplier or if no such date is stated termination shall be effective immediately upon the delivery of the notice to the Supplier.
Bulla will not be taken to have waived any right, power or remedy of Bulla unless such waiver shall be in writing under the signature of an authorised officer of Bulla.
All notices and other communications provided for in this Contract shall be airmailed, facsimiled or delivered if to Bulla, at its stated address on this order and if to the Supplier may (without limiting any other lawful means of giving notice) be sent by such means to its usual business address or registered office or to such other address as shall be designated by the Supplier by a written notice to Bulla or to its nominated or actual facsimile address as the case requires. All such notices and other communications shall, when mailed be effective five days after posting and in the case of facsimile shall be effective from the day following transmission.
Bulla may amend or vary the requirements of an Order by written notice to the Supplier.
Bulla reserves the right to obtain similar Goods and/or Services from any other supplier.
The Contract is confidential to Bulla and neither its terms nor any particulars of any documents or information relating to it may be disclosed to any third party by the Supplier without Bulla’s prior written consent. This obligation of confidentiality shall survive the termination of the Contract.
The Supplier shall not subcontract or assign the Contract or any of its rights or obligations under the Contract without the prior written consent of Bulla (which may be withheld in its absolute discretion).
The Contract shall in all respects be deemed to be a contract made in Victoria, Australia and the Contract shall be governed by the laws of Victoria, Australia. The non-exclusive jurisdiction of the courts of Victoria, Australia to entertain all claims and actions arising out of this Contract is agreed.