Bulla Terms and Conditions of Sale (Australia)

1. Definitions

In these Terms:
ACL means the Australian Consumer Law, being Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Bulla means Regal Cream Products Pty Ltd (ACN 005 144 481) as trustee of the Regal Cream Products Trust trading as Bulla Dairy Foods (ABN 11 845 336 184).
Customer means the person or entity, jointly and severally if more than one, acquiring the Products from Bulla.
Consumer has the same meaning as defined in the ACL.
Consumer Contract has the meaning given in section 23 of the ACL and includes a ‘small business contract’ under section 23 of the ACL.
Contract means any arrangement for the provision of Products by Bulla to the Customer in Australia excluding separate agreements in writing, signed by both parties that do not expressly incorporate these Terms.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Lead Time means the number of days required for delivery from the date Bulla accepts an Order in accordance with these Terms, unless otherwise agreed between the parties.
Order means a valid purchase order placed by the Customer with Bulla in accordance with these Terms.
Order Confirmation means a written acceptance of an Order.
PPSA means the Personal Property Security Act 2009 (Cth).
Price means the price of the Products as referred to in Bulla’s price lists, quotations and/or specific arrangements with the Customer, which are subject to change in accordance with these Terms.
Products means the products supplied by Bulla to the Customer.
Terms means these terms and conditions of sale.

 

2. Basis of Contract

(a)  These Terms apply to all Products provided or supplied, or to be provided or supplied, by Bulla to the Customer, and are taken to be incorporated in and form part of every Contract.

(b)  If there is any inconsistency between the terms set out in an Order or other document issued by or on behalf of the Customer (on the one hand) and these Terms (on the other hand), then these Terms prevail to the extent of any inconsistency.

(c)  Bulla may from time to time vary or amend these Terms (other than in relation to Prices, which may be varied in accordance with clause 5) by giving at least 30 days’ notice in writing to the Customer.  If these Terms form part of a Contract that is a Consumer Contract (and the variation does not relate to the Prices), then the Customer may refuse to accept that variation by giving written notice to Bulla within that 30 day notice period, in which case the variation will not apply to that Contract unless otherwise agreed in writing by Bulla and the Customer.  If the Customer does not make such an election within the relevant 30 day notice period or a Contract is not a Consumer Contract, then the Customer agrees that all Products ordered after notification of the variation will be subject to the variation and placing such Orders will be taken to be an acceptance of the variations by the Customer.

(d)  The Customer is deemed to have acknowledged and agreed to these Terms by ordering Products from Bulla or by agreeing to any other document provided by Bulla that incorporates these Terms by reference.

 

3. Quotations and Tenders

Any quotations (including product price lists) and/or tenders sent by Bulla to the Customer, prior to receipt by Bulla of written acceptance by the Customer, are subject to change or withdrawal at any time by Bulla by giving notice in writing to the Customer, and (unless Bulla states otherwise in the relevant quotation or tender) will be taken to have been rejected by the Customer if not accepted by the Customer in writing before the date that is 30 days after the date of the relevant quotation or tender (as applicable).

 

4. Ordering Products

(a)  The Customer must complete and submit all Orders in the form required by Bulla.

(b)  Without limiting clause 4(a), each Order must specify:

(i)       the date of the Order;
(ii)      full details of the Products required, including the required quantity (by case, pallecon or as otherwise required by Bulla;
(iii)     the delivery date, which must be in accordance with the applicable Lead Time;
(iv)     the applicable delivery address; and
(v)      any other specific requirements, if any, relating to the Products.

(c)  Bulla reserves the right to refuse acceptance of part or all of an Order at its sole discretion. No Order issued by the Customer will be taken to have been accepted by Bulla unless acceptance of that Order has been communicated by Bulla to the Customer through the delivery of an Order Confirmation by Bulla to the Customer.

(d)  The Customer may not vary an Order that has been accepted by Bulla unless Bulla agrees in writing. Orders that have commenced to be picked from Bulla’s nominated warehouse may not be varied.

(e)  Products are subject to availability. If any Products ordered by the Customer are not available, either before or following the delivery of an Order Confirmation in accordance with clause 4(c), Bulla will notify the Customer as soon as practicable. Any part of an Order that cannot be supplied by Bulla must be re-ordered through the delivery of a new Order by the Customer.

 

5. Price

(a)  The Prices for the Products are as set out in the relevant Contract, quotation, price list or order list (as applicable) at the date of the Order by the Customer.

(b)  Subject to clause 5(c) or unless the Prices have been fixed for a specific period under the relevant Contract, all Prices are subject to change by Bulla from time to time on Bulla giving the Customer at least 30 days’ prior written notice of that change.

(c)  If a Contract is a Consumer Contract, then the Customer may refuse to accept any Price change referred to in clause 5(b) for the relevant Products by giving written notice to Bulla within the 30 day notice period referred to in clause 5(b), in which case the Price change will not apply in respect of any such Products ordered (and not delivered) before notification of the Price change. If the Customer does not make such an election within the relevant 30 day notice period or a Contract is not a Consumer Contract, then the Customer agrees that all Products ordered, provided or supplied after notification of the Price change will be subject to the Price change, and the placing of such Orders or acceptance of the Products provided or supplied will be taken to be an acceptance of the Price change by the Customer.

(d)  Unless otherwise stated in a Contract, the Prices do not include any of the following in relation to the relevant Products:

(i)       any applicable GST (as that term is defined in the GST Act); or
(ii)      any other taxes (other than income tax), duties, levies and other government fees and charges (Other Taxes).
(iii)     the delivery date, which must be in accordance with the applicable Lead Time;
(iv)     the applicable delivery address; and
(v)      any other specific requirements, if any, relating to the Products.

(e)  Unless otherwise stated in a Contract, the amount of any applicable GST and Other Taxes will be added to, and must be paid by the Customer to Bulla, in the same way and at the same time as the Price for the relevant Products is payable under or in connection with the relevant Contract.

(f)  Unless otherwise stated in a Contract, the Prices include the amount of any delivery, packaging, freight, insurance costs, expenses or surcharges in accordance with DAP (Incoterms® 2020) Customer nominated delivery address in Australia.

 

6. Invoices & Payment

(a)  On or after the provision or supply of the Products, Bulla will provide an invoice to the Customer for the Price of the Products.

(b)  Bulla’s invoice will be in a form that will constitute a tax invoice (as defined under the GST Act).

(c)  Unless otherwise agreed by Bulla in writing, full payment for the Products must be made within 7 days of the date of Bulla’s invoice.

(d)  The time for payment is of the essence.

 

7. Delivery

(a)  Bulla will arrange for the delivery of the Products to the Customer in accordance with these Terms.

(b)  If the Contract specifies that an Incoterms® rule applies to the delivery of the Products, then:

(i)      the delivery of the Products will occur in accordance with that Incoterms® rule; and
(ii)     Bulla (as the ‘seller’) and the Customer (as the ‘buyer’) must observe and comply with the respective obligations of the ‘seller’ and the ‘buyer’ in the rules applicable to that Incoterms® rule as specified in Incoterms®2020.

(c)  If no Incoterms® rule is specified in the Contract, then DAP (Incoterms® 2020) Customer nominated delivery address in Australia applies to the delivery and Bulla (as the ‘seller’) and the Customer (as the ‘buyer’) must observe and comply with the respective obligations of the ‘seller’ and the ‘buyer’ in the rules applicable to DAP as specified in Incoterms®2020.

(d)  Bulla will designate the method of delivery for the Products.

(e)  The Customer is responsible for ensuring that the nominated delivery address can accommodate and is available for the delivery on the delivery date.

(f)  Any period or delivery date stated or accepted by Bulla is an estimate only and not a contractual commitment. Bulla will use its reasonable endeavours to meet any estimated delivery date but will not be held liable for any loss or damage suffered by the Customer or any third party for the failure to meet the estimate delivery date. If Bulla cannot meet the estimated delivery date, it will notify the Customer and deliver the Products within a reasonable time.

(g)  A delivery receipt, proof of delivery document, driver’s manifest or postage receipt will constitute proof of delivery to the Customer.

(h)  The Customer indemnifies Bulla against any loss or damage suffered by Bulla as a result of delivery, except where caused by Bulla’s negligence or where the Customer is a Consumer and Bulla has not used due care and skill.

 

8. Property & Risk

(a)  Title to the Products will pass to the Customer from Bulla in accordance with clause 14(c).

(b)  If the Contract specifies that an Incoterms® rule applies to the delivery of the Products, then the risk in the Products will pass to the Customer in accordance with that Incoterms® rule.

(c)  If no Incoterms® rule is specified in the Contract, then DAP (Incoterms® 2020) Customer nominated delivery address in Australia shall be applicable.

 

9. Inspection of Products

(a)  The Customer must inspect the Products upon delivery and:

(i)     sign and date a proof of delivery document and note any defective or non-conforming Products, transit damage, short deliveries or any failure to fulfil any Order on the proof of delivery document at the time of delivery;

(ii)    within 48 hours of the date of delivery, notify Bulla of any claim for defective or non-conforming Products, transit damage, short deliveries or any failure to fulfil any Order that should have been reasonably apparent when the Products were inspected upon delivery;

(iii)   within 7 days of the date of delivery, notify Bulla of any other claims that would not be reasonably apparent when the Products were inspected upon delivery; and

(iv)    within a reasonable time following any such notification, grant Bulla access to the Products to enable inspection of any alleged damage or failure.

(b)  If the Customer fails to comply with the requirements set out in clause 9(a), then the Products are deemed to be in compliance with the Order and free from any damage or defect whatsoever and the Customer waives all rights to make any claim in respect of those Products unless Bulla agrees otherwise in writing.

(c)  If  any claim for defects or non-conforming Products is accepted by Bulla, then Bulla must either (at its election):

(i)     replace the Products; or

(ii)    refund the Price for the Products to the Customer.

(d)  If the Customer is a Consumer, nothing in this clause limits any remedy available for a failure of the statutory guarantees in the ACL.

 

10. Liability

(a)  To the maximum extent permitted by law, unless the Contract provides otherwise, or if contained in any warranty statement provided by Bulla to the Customer in relation to the Products, the Contract does not include any other term, condition, guarantee or warranty with respect to the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Products or any contractual remedy for the failure.

(b)  Any warranty, guarantee, condition, representation, undertaking or other right that would be implied in or otherwise required in connection with the relevant Contract by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by law.

(c)  Any drawings or written or verbal descriptions of the Products are general in nature, and actual Products may vary slightly from such drawings or descriptions.  Any drawings or descriptions relating to the Products do not constitute a warranty in relation to the Products and the Customer may not, subject to the ACL, rely on these drawings or descriptions or claim against Bulla if Products do not conform with those drawings or descriptions.

(d)  Notwithstanding the other provisions in this clause 10 and anything else in these Terms, Bulla does not exclude, restrict or modify any warranty, guarantee, condition, representation, undertaking or other right under any statute (including the Competition and Consumer Act 2010 (Cth)) where to do so would contravene that statute or cause any part of these Terms to be void (Non-excludable Condition).

(e)  Subject to this clause 10, the maximum aggregate liability of Bulla for all proven losses, damages and claims arising out of any Contract, including liability for breach, in negligence or in tort or for any other common law or statutory action, is limited to the sum of the amounts paid by the Customer to Bulla under the relevant Contract to which the relevant breach, negligence, tort or common law or statutory action relates.

(f)  To the maximum extent permitted by law, the liability of Bulla for a breach of any Non-excludable Condition in respect of any goods or services supplied under a Contract that are not of a kind ordinarily acquired for personal, domestic or household use or consumption, is limited, at Bulla’s option to:

(i)        in the case of goods:
(A) the replacement of the goods or the supply of equivalent goods;
(B) the repair of the goods;
(C) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(D) the payment of the cost of having the goods repaired; and
(ii)       in the case of services:
(A) the supplying of the services again; or
(B) the payment of the cost of having the services supplied again

(g) If the Customer on-supplies the Products to a consumer and the Products are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of Bulla’s liability to the Customer.

(h) Subject to this clause 10 and to the maximum extent permitted by law, Bulla is not liable for any indirect, incidental, special or consequential loss or damage, loss of profits or anticipated profits, economic loss, loss of business opportunity, or loss or damage from wasted management time suffered by the Customer or any third party, irrespective of whether the loss or damage is caused by or relates to breach of contract, statute, tort (including negligence) or otherwise, or Bulla or any other person was previously notified of the possibility of that loss or damage.

(i) The Customer acknowledges that it has not relied upon any service involving skill and judgment, advice or recommendation by Bulla in relation to the Products or their use or application, the Customer has not informed Bulla of any purpose for which it requires the Products and the Customer has the responsibility of satisfying itself that the Products are suitable for the Customer’s intended use.

(j) Nothing in these Terms is to be interpreted as excluding, restricting or modifying the application of any legislation applicable to the sale of Products which cannot be excluded, restricted or modified.

 

11. Packaging & Marking

Bulla will determine the form and manner of any packing and marking required for the Products.

 

12. Confidentiality & intellectual property

(a) Each 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 without Bulla’s prior written consent
(unless that disclosure is required by law).

(b) If Bulla is a consumer under this Contract, nothing in these Terms excludes or restricts Bulla’s rights or remedies against the Supplier for failure of a statutory guarantee under the ACL.

 

13. Local standards

It is the Customer’s responsibility (at its own cost) to observe any applicable laws relating to the use and storage of the Products and to apply for any necessary certifications, licences, permits or other authorisations required by law in relation to the use or storage of the Products.

 

14. Security interest

(a) Capitalised terms used in this clause 14 that are not otherwise defined in these Terms have the meaning given in the PPSA.

(b) The Customer acknowledges and agrees that each Contract constitutes a Security Agreement under the PPSA and secures Bulla’s right to receive the Price for all Products sold under the relevant Contract and all other amounts from time to time owing by the Customer to Bulla under that Contract or any other Contract.

(c) The Customer agrees that legal title and property in the Products is retained by Bulla (and that Bulla retains a Security Interest in all Proceeds relating to those Products) until payment is received in cleared funds from the Customer of all sums owing to Bulla in relation to the Products.

(d) The Customer must promptly do anything required by Bulla to ensure that the relevant Security Interest is a perfected Security Interest and has priority over all other Security Interests in the Products and any Proceeds relating to those Products.

(e) If the Customer fails to pay any amount to Bulla in relation to any Products by the due date required under the relevant Contract for that payment, then Bulla may (without limiting any of its other rights and remedies) recover and resell any of the Products in which property has not passed to the Customer and any Proceeds relating to those Products. In addition to any rights Bulla may have under Chapter 4 of the PPSA, Bulla may, without notice, enter any premises where it suspects the Products and/or any Proceeds relating to the Products may be located and remove them without committing a trespass, and the Customer authorises Bulla to enter on to the premises where the Products and/or those Proceeds are located to take possession of the Products and/or those Proceeds for that purpose at any time.

(f) The Customer agrees to waive any right to receive any notice or statement from Bulla under the PPSA, except to the extent that the giving of that notice or statement is required by the PPSA and cannot be excluded by agreement.

(g) To the maximum extent permitted by law:

(i)     for the purpose of sections 115(1) and 115(7) of the PPSA, Bulla need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d) or 132(4) and sections 142 and 143 are excluded;
(ii)    for the purpose of section 115(7) of the PPSA, Bulla need not comply with sections 132 and 137(3); and
(iii)   if the PPSA is amended after the date of the relevant Contract to permit Bulla and the Customer to agree to not comply with or to exclude other provisions of the PPSA, then Bulla may notify the Customer that any of those provisions are excluded, or that Bulla need not comply with any of those provisions, as notified to the Customer by Bulla, and that notice will be binding on the Customer.
(iv)   If Bulla exercises a right, power or remedy in connection with any Contract, then that exercise is taken not to be an exercise of a right, power or remedy under the PPSA, unless Bulla states otherwise at the time of exercise. However, this clause 14(g)
(iv)   does not apply to a right, power or remedy that can only be exercised under the PPSA.
(v)    The Security Interests arising under this clause 14 attach to the relevant Products when the Customer obtains possession of those Products and the parties confirm that they have not agreed that any Security Interest arising under this clause 14 attaches at any later time.

 

15. Termination

(a) Unless a Contact has a fixed or minimum term, either Bulla or the Customer may terminate a Contract at any time by giving 30 days’ written notice to the other party.

(b) If the Customer fails to make payment by the due date of any money owing under a Contract, then all money which would become payable by the Customer to Bulla at a later date on any account becomes immediately due and payable and Bulla may (without prejudice to any of its rights):

(i)    charge the Customer interest on any amount due at the rate pursuant to the Penalty Interest Rates Act 1983 (Vic) for the period from the due date until the date of payment in full;
(ii)   charge the Customer for all costs and expenses (including legal costs) incurred by Bulla as a result of the default or in taking action to recover the Products or enforce the Contract; and/or
(iii)   suspend supply of any further Products to the Customer.

(c)  Without  limiting any other right or remedy either party (Terminating Party) may have, whether under these Terms, statute or otherwise, the Terminating Party may terminate a Contract with immediate effect by providing written notice to the other party if the other party:

(i)    breaches any obligation of the other party under that Contract (including an obligation of the other party to pay any amounts when due under that Contract) and if the breach is capable of remedy, the other party does not remedy the breach within 14 days after being notified in writing by Bulla; or

(ii)   to the extent permitted by law, has a receiver, receiver and manager, liquidator, provisional liquidator, trustee, mortgagee in possession, administrator, controller or inspector appointed under any law (or any similar official is appointed in respect of the other party or any of its assets) or the other party is unable to pay its debts when due or otherwise is, becomes or is deemed to be insolvent or bankrupt.

(d)  On termination under this clause 15 by Bulla, Bulla may at its option exercise any one or more of the following rights (in addition to any other rights it may have under the relevant Contract or at law):

(i)    suspend deliveries of further Products to the Customer;

(ii)   terminate any other Contract in relation to Products that have not been delivered or supplied to the Customer;

(iii)  withdraw any credit facilities which may have been extended to the Customer and require immediate payment of all moneys owed to Bulla by the Customer from time to time (and the Customer must comply with that requirement);

(iv)   issue an invoice for, and demand immediate payment of, Products ordered by the Customer but not delivered (and the Customer must comply with that demand);

(v)    in respect of Products already delivered or otherwise supplied to the Customer, enter onto the Customer’s premises to recover and resell those Products (and the Customer must ensure that Bulla is able to exercise that right of entry); and
(vi)   exercise any rights that Bulla has under the PPSA or any other applicable law.

(e) On termination of the relevant Contract for any reason and without limiting Bulla’s other rights and remedies, the Customer will be responsible for any storage, repossession and recovery fees, including administrative and legal costs of recovery, in relation to the Products and all other reasonable costs and charges incurred by Bulla in connection with the termination, which fees, costs and charges will be payable by the Customer to Bulla on demand.

 

16. Force Majeure

(a) Where any failure or delay by Bulla in the performance of its obligations under a Contract is caused, directly or indirectly, by an event or occurrence that is beyond the reasonable control of Bulla (Force Majeure Event), Bulla is not liable for that failure or delay and Bulla’s obligations under that Contract are suspended, to the extent to which they are affected by the relevant Force Majeure Event, for the duration of the Force Majeure Event.

(b) A Force Majeure Event includes the failure or inability of any suppliers of Bulla to supply or provide any goods or services required by Bulla to provide or supply the Products to the Customer.

 

17. Cancellation

(a)  If Bulla is unable to deliver the Products then it may cancel the Customer’s Order (even if it has been accepted) by written notice to the Customer and, if payment has been made, Bulla will provide the Customer with a refund, or part thereof, in respect to the Products it is unable to deliver.

(b)  If the Customer cancels or varies an Order in accordance with clause4(d), the Customer is liable for any reasonable costs Bulla has incurred up  to the date of cancellation.

 

18. General

(a) The failure to enforce any of these Terms will not be construed as a waiver of any rights.

(b) If any provision is unenforceable, it will be read down so as to be enforceable, or if it cannot be read down, the provision or part of it will be severed from the Contract without affecting the enforceability of the remaining provisions.

(c) Notices must be in writing and handed personally or sent via email or prepaid mail to the other parties’ contact address as set out in the quotation or Order (or if not set out, the last known address). Notices sent by pre-paid post are deemed to be received within 2 days of posting or on the actual date of receipt (whichever is earlier). Notices sent via email are deemed received on confirmation of successful transmission.

(d) Nothing in these Terms will imply or constitute a relationship of partnership, joint venture or employment between the parties.

(e) The laws of Victoria, Australia govern these Terms. The parties submit to the exclusive jurisdiction of the courts of Victoria and the Commonwealth of Australia.