Bulla Terms and Conditions of Purchase

1. Definitions

ACL means the Australian Consumer Law, 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).
Contract means any contract for the purchase of Goods and/or Services by Bulla from the Supplier.
consumer has the same meaning as defined in the ACL.
Delivery Date means the delivery date specified in the Order.
Goods and/or Services means all goods and/or services ordered by Bulla from the Supplier.
GST means the Goods and Services tax as defined in A New Tax System, (Goods and Services Tax) Act 1999 (Cth).
Order means an official Bulla purchase order for the Goods and/or Services and any documents attached or incorporated by Bulla.
Price means the price/s specified in the Order for the Goods and/or Services.
Supplier means the supplier of the Goods and/or Services, or any person acting on behalf of or with the Supplier’s authority.
Terms means these terms and conditions of purchase.

 

2. Basis of Contract

(a)  Unless otherwise agreed by Bulla in writing, these Terms apply exclusively to every Contract and cannot be varied or replaced by any other terms and conditions (including but not limited to the Supplier’s terms and conditions of sale or bills of lading).

(b)  The Order is Bulla’s offer to the Supplier to supply the Goods and/or Services to Bulla on these Terms.

(c)  These Terms include any additional terms in the Order. To the extent that there is any inconsistency, the additional terms in the Order will prevail.

(d)  If a separate written agreement (duly executed by an authorised representative of each party) exists between the Supplier and Bulla for, or relating to, the purchase by Bulla of the Goods and/or Services, these Terms do not apply.

(e)  The acknowledgement of receipt of an Order (in writing or verbally ) by the Supplier or the supply of the Goods and/or Services will constitute the Supplier’s acceptance of a binding Contract to supply the Goods and/or Services in the Order to Bulla on these Terms.

(f)  If the Supplier is unwilling or unable to accept the Order on these Terms, the Supplier must within a reasonable timeframe prior to dispatch of the Goods or provision of the Services contact Bulla and advise in writing of any proposed variations. Bulla will reasonably consider any proposed variations but may refuse any proposed variations and cancel the Order. If the Supplier proceeds with the supply of the Goods and/or Services, without prior written consent by Bulla to any proposed variations, the Supplier is deemed to have accepted these Terms.

(g)  In addition to these Terms, all implied conditions and warranties contained in the Sale of Goods Acts and Fair Trading Acts of the various States and Territories of Australia and the ACL will apply.

(h)  The Supplier must at all times hold and obtain all consents, authorisations, permits or licences (including import and export licences and any authorisations) required to perform the Contract.  Where Bulla orders Goods which are to be specifically manufactured for Bulla, the Supplier must immediately notify Bulla of the grant of, or of any absolute or qualified refusal to grant, a requisite import licence or authorisation.

(i)  The Supplier must comply with all applicable laws and regulations (both in Australia and in any other relevant country) in connection with the provision of the Goods and/or Services to Bulla under the Contract.

(j)  The application of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention) is expressly excluded.

 

3. Change to the Order

Subject to the Supplier’s consent (acting reasonably), Bulla may amend or vary the requirements of, or cancel, an Order by written notice to the Supplier at any time before the Goods and/or Services are manufactured (where Bulla has supplied specific specifications or requirements) or before the Goods are dispatched or Services are delivered.

 

4. Price

(a)  The Price for the Goods and/or Services is fixed. The Supplier may not increase the Price, unless Bulla has requested a change to the Order and such increase corresponds with actual costs of the change.

(b)  The Price includes all applicable packaging, marking, freight and insurance charges and all taxes, duties, charges, levies and fees payable on or in respect of the Goods and/or Services, with the exception of GST.

 

5. Invoices & Payment

(a)  Invoices must be forwarded to Bulla within seven (7) days of delivery of the Goods and/or provision of the Services and quote Bulla’s Order number. Invoices must comply with any applicable law and the Order to be valid.

(b)  Bulla may withhold any amounts which are reasonably disputed until the dispute has been resolved, subject to Bulla giving prior written notice to the Supplier of the reasons for the dispute.

(c)  Bulla may set off any amount due to the Supplier against any amount due to Bulla by the Supplier.

(d)  Bulla will make payment of a valid invoice within 63 days from the end of the calendar month in which the invoice is dated.

(e)  The Supplier is not entitled to interest on unpaid amounts or for any costs associated with recovery from Bulla for unpaid monies.

(f)  Bulla accepts no responsibility for payment of Goods and/or Services other than in accordance with these Terms.

 

6. Delivery

(a)  Goods shall be delivered to Bulla Free into Store (F.I.S.).  Delivery shall be affected to Bulla at its election by one or more shipments.

(b)  Delivery is completed when the Goods and/or Services effectively pass onto the premises specified in the Order (or as otherwise directed by Bulla in writing from time to time) and an authorised officer of Bulla has signed accepting the Goods and/or Services. Any additional or special requirements by Bulla as to delivery of the Goods and/or Services in the Order is a condition of the Contract.

(c)  The signing for acceptance of the Goods and/or Services by Bulla will not amount to acceptance of any non-conformity or defects in the Goods and/or Services.

(d)  Goods and/or Services must be delivered or supplied to Bulla on the Delivery Date. Time is of an essence.

(e)  The Supplier must promptly notify Bulla as soon as it becomes  aware of a potential delay to the Delivery Date and the proposed new delivery date, which Bulla may in its absolute discretion, acting reasonably, agree in writing to extend the Delivery Date or cancel the Order, without penalty to Bulla.

(f)  The Supplier will be liable for any loss or damage suffered or incurred by Bulla, either directly or indirectly, caused by the Supplier’s failure to deliver the Goods and/or Services by the Delivery Date.

(g)  Where the Supplier has failed to comply with clause 6(e), Bulla may terminate the Contract if the Supplier does not provide the Goods and/or Services by the Delivery Date.  Bulla will not be liable to pay for any Goods and/or Services which are delivered outside of the Delivery Date, except to the extent Bulla accepts delivery of the Goods and/or Services .

 

7. Acceptance and Conformity

(a)  The Supplier must deliver Goods and/or Services that are of the quantity, quality and description detailed in an Order or as advised to the Supplier at the time of the Order.

(b)  Bulla is entitled to inspect all Goods and/or Services upon delivery and will use its best endeavours within  72 hours to reject any defective Goods and/or Services.

(c)  Bulla will promptly notify the Supplier of any non-conforming or defective Goods and/or Services or any shortage in the quantity of the Goods supplied.

(d)  Goods and/or Services will not conform, unless they:

(i)     are fit for purpose for which Goods and Services of the same description would ordinarily be used;

(ii)    are fit for a particular purpose made known to the Supplier   at the time of the Order;

(iii)   possess the qualities which the Supplier has held out to Bulla by way of a sample or model;

(iv)   are supplied in accordance with and comply with any relevant specification or requirements for the Goods and/or Services;

(v)     are supplied to the quality specified in an Order;

(vi)    comply with all applicable standards, laws and regulations applicable to the Goods and/or Services.

(e)  Bulla may return rejected Goods and/or Services to the Supplier at the Supplier’s cost.  If the Goods are not in a suitable condition (in Bulla’s reasonable opinion) to be returned, Bulla may destroy the Goods upon written notice to the Supplier.

(f)  On notification by Bulla of the non-complying or defective Goods and/or Services, the Supplier must at its risk and cost, at Bulla’s option, either:

(i)      not charge Bulla the Price of the Goods and/or Services (if payment has not already been made);
(ii)     allow Bulla to offset payment;
(iii)    refund the Price paid for the Goods and/or Services;
(iv)    rectify the Goods and/or Services; and/or
(v)     resupply the Goods and/or the Services.

(g)  The Supplier must within 24 hours from receipt of Bulla’s request (or as otherwise agreed in writing), at the Supplier’s cost, attend at the place where the Goods and/or Services were provided (or other place as is reasonably directed by Bulla) to:

(i)     rectify the Goods and/or Services;
(ii)    assist to determine if an issue Bulla has identified is caused or contributed to by non-compliance of the Goods and/or Services;
(iii)    sort through Goods to ascertain which are defective and/or remove defective Goods; and/or
(iv)    assist Bulla to ensure that its production lines continue to run despite the non-compliance Goods and/or Services.

(h)  In this clause, costs include (but are not limited to) the cost of packing, transport and handling.

 

8. Property & Risk

(a)  Property in and ownership of the Goods will pass to Bulla upon full payment of the Price or upon delivery, whichever is the earlier.

(b)  Risk in the Goods and/or Services and all insurance responsibility remains with the Supplier until the Goods and/or Services are accepted in accordance with clause 7.

 

9. Right to Inspect at Supplier’s Premises

Upon prior notice in writing, Bulla may inspect the Goods either during and/or after manufacture but before dispatched from the Supplier’s premises at a reasonable time which will not detrimentally impact the Supplier.  Any inspection will not constitute acceptance of the Goods or otherwise affects Bulla’s rights in respect of the Goods.

 

10. Shipping Documents

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 7 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.

 

11. Packaging & Marking

(a)  All Goods must be suitably packed and otherwise prepared for delivery without charge to Bulla, unless otherwise agreed in writing.

(b)  The form and manner of such packing is at the reasonable direction of Bulla as set out in the Order, subject to compliance with applicable laws and regulations.  Special requirements of Bulla must be notified to the Supplier in sufficient time to enable performance of the Contract.

 

12. Warranties

(a) The Supplier warrants:

(i)    that the Goods and/or Services will be provided with due care and skill by appropriately qualified persons and be fit for purpose;

(ii)   the quality of materials and workmanship of the Goods and/or Services and are free from defects;

(iii)  that the Goods and/or Services are of acceptable quality and fit for their intended purpose;

(iv)   that the Goods shall be new on delivery to Bulla;

(v)   where Bulla has supplied written specifications, drawings and/or requirements, the Goods and/or Services will conform with such specifications, drawings and/or requirements and the Order;

(vi)   the Goods and/or Services will comply with the requirements of any relevant statutes, regulations or legally applicable standards;

(vii)  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 laws and regulations both in Australia and in any other such relevant country as to composition, processing (if any), packaging and description; and

(viii)  that Bulla will be assigned and have the full benefits of any manufacturer’s or express warranties for the Goods and/or Services.

(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. Liability and Indemnity

(a)  The Supplier is liable for and indemnifies Bulla from and against any liabilities, damages, remedies, losses (excluding loss of profits, business or goodwill), penalties, fines, costs, expenses (including reasonable legal expenses), demands, claims and proceedings of any nature incurred by Bulla and arising directly out of :

(i)    any defect and/or non-compliance of the Goods and/or Services;

(ii)   alleged infringement of a third parties intellectual property rights relating to the use or sale of Goods and/or Services; and/or

(iii)  any recall or withdrawal of Bulla’s products caused or contributed to by the Supplier.

(b)  The Supplier’s liability to indemnify Bulla will be reduced in proportion to the extent that such claims, damages or losses are directly caused or contributed to by Bulla .

 

14. Intellectual Property and Confidentiality

(a)  The Supplier warrants that it owns or is licensed to sell any Goods and/or Services that are the subject of any form of intellectual property and that the supply of the Goods and/or Services does not and will not infringe any intellectual property rights of any third party.

(b)  Where the Contract requires the Supplier to prepare or provide any design, formula, specification or drawings, the Supplier assigns to Bulla absolutely:

(i)    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

(ii)   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.

(c)  The Supplier will sign all documents and do all acts and things necessary to ensure that legal ownership of the intellectual property rights vests in Bulla.

(d)  The Supplier acknowledges and agrees that the ownership of all the intellectual property rights in all materials (including but not limited to dies, tools, filmwork, artwork, moulds, reports, specifications, Order) provided by Bulla to the Supplier or acquired by Bulla for any purpose in connection with the Contract remain at all times with Bulla. The Supplier must promptly return all such material to Bulla and immediately cease use of it, if requested by Bulla.

(e)  The Supplier acknowledges and agrees that it will only use Bulla’s materials to perform the Contract and that it must not use, reproduce or provide Bulla’s materials to any third party, without Bulla’s prior written consent.

(f)  The  Contract is confidential to both parties and neither its terms nor any particulars of any documents or information relating to it may be disclosed to any third party unless both parties agree in writing (acting reasonably).

(g)  Each party (Recipient)  agrees to keep as secret and confidential (and ensure that its employees and agents keep confidential) all information of a confidential, secret of proprietary nature concerning the business or affairs of the other party (Discloser) which may come to the Recipient’s knowledge as a result of the Contract, provided that these obligations do not apply to information:

(i)    that is or becomes publicly known through no wrongful act of the Recipient (its employees or agents);

(ii)   required to be disclosed by law.

(h)  This clause survives termination of the Contract.

 

15. Insurance

The Supplier warrants that it has obtained and will maintain throughout the duration of the Contract all insurance cover required by law and by the Contract including but not limited to:

(a)  public and products liability insurance with a limit of liability of not less than $20,000,000 for any one occurrence;

(b)  where the Goods constitute food, ingredients, packaging or other materials that Bulla has stated will be used to manufacture or process products, product recall insurance with a limit of liability of not less than $3,000,000 for any one occurrence;

(c)  all insurances required by law including, but not limited to, workers compensation insurance and motor vehicle third party liability insurance.

 

16. Termination and Cancellation

(a)  Each party (Terminating Party) may, without prejudice to any other rights, without any liability at any time terminate a Contract by notice in writing if:

(i)    the other party is in breach of these Terms, which is not capable of being remedied, or (where the breach is capable of remedy) is not remedied within 14 days after being required by notice from the Terminating Party to do so;

(ii)   the Terminating Party determines in its reasonable opinion that the other party has acted in a manner that is harmful to its reputation;

(iii)  the other party is guilty of serious misconduct, fraud or dishonesty; or

(iv)   the other party is insolvent, bankrupt, has an administrator, receiver or controller appointed or an application is made to wind the other party up or any similar action is taken.

(b)  The Supplier must take steps to mitigate its costs upon receipt of written notice of cancellation.

(c)  Termination under this clause shall be effective from the date stated in a notice or if no such date is stated immediately upon the delivery of the notice to the Supplier.

 

17. 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 shall be read down 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 Terms.

(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 Order (or if not set out, the last known address).  Notice sent by pre-paid post are deemed to be received within 2 days of posting or actual date of receipt (whichever is earlier).  Notices sent via email are deemed received on confirmation of successful transmission.

(d)  Nothing in this Contract shall imply or constitute a partnership or joint venture or employment between the parties.

(e)  The Supplier shall not subcontract or assign any of its rights or obligations under the Contract without the prior written consent of Bulla (which may be withheld in its reasonable discretion).

(f)  The laws of Victoria, Australia govern these Terms.  The parties agree to the non-exclusive jurisdiction of the courts of Victoria, Australia.