In these terms and conditions of purchase:
- Goods means any goods purchased by us from you pursuant to our Order or incidental to the supply of the Services;
- GST , tax invoice and taxable supply have the same meaning as in A New Tax System (Goods and Services Tax) 1999 (Cth);
- Lion means L D + D Australia Pty Ltd and its related bodies corporate (as defined in the Corporations Act 2001);
- Order means a duly authorised purchase Order submitted by us to you;
- Services means any services purchased by us from you pursuant to our Order or incidental to the supply of Goods;
- we or us means the member of Lion indicated on the Order. Where that member is L D + D Australia Pty Ltd (ABN 68 083 019 390), L D + D Australia Pty Ltd acts in its capacity as agent as described in clause 1.2;
- you or your means the supplier or intending supplier of the Goods or Services.
L D + D Australia Pty Ltd acts as agent for and on behalf of:
- L D + D Milk Limited in connection with the purchase of Goods and Services for the purposes of the manufacture, promotion and sale of milk products including but not limited to fresh and flavoured milk;
- L D + D Foods Pty Limited in connection with the purchase of Goods and Services for the purposes of the manufacture, promotion and sale of fresh dairy products including but not limited to yogurt and dairy desserts,
- Berri Pty Limited in connection with the purchase of Goods and Services for the purposes of the manufacture, promotion and sale of non-dairy beverage products including but not limited to fruit juice and flavoured and plain waters;
- Butterfields Specialty Foods Pty Ltd in connection with the purchase of Goods and Services for the purposes of the manufacture, promotion and sale of cheese and gourmet food products including but not limited to specialty cheese and associated products.
Unless we have entered into a separate agreement with you, these terms and conditions apply to the purchase of Goods or Services (or both) by us from you, and supersede and exclude all prior or subsequent discussions, representations and terms or conditions of trade between us and you.
Orders and any variations will be in writing.
Each Order by us is an offer to purchase Goods, Services or both from you subject to these terms and conditions.
You will be deemed to have accepted our Order if you do not refuse or reject the Order in writing by 5pm on the next business day following the day you received the Order, or if you perform any part of the Order before that time.
Unless otherwise agreed you must deliver the Goods or supply the Services as specified in our Order. The time and place for delivery are of fundamental importance to our business and any failure to comply with the terms of our Order may cause us extensive loss or damage.
Each delivery of Goods or supply of Services must comply with any packaging, labelling, delivery or other instructions given by us to you.
Unless otherwise agreed between us, all delivery costs, including insurance, will be borne by you.
Delivery of the Goods will be deemed to have occurred when the Goods are received by us at the location specified by us in our Order.
4. Cancellations and Variations
If you fail to deliver the Goods or supply the Services in conformity with our Order (including by failing to meet delivery time frames) we may, on giving you written notice, cancel the Order and/or refuse to accept delivery and obtain replacement Goods or Services from a third party. We may claim from you our damages arising from your failure to comply with our Order, including without limitation indirect and consequential loss.
We reserve the right:
- at any time prior to Goods being despatched by you or Services being supplied by you, to cancel all or any part of an Order by giving notice in writing to you; and
- at any time, to correct any errors or omissions in any of our Orders or other documentation issued by us.
We will endeavour to minimise any loss to you arising from any cancellation under clause 4.2, but will only be liable to pay your reasonable costs of work in progress as at the date of cancellation.
We may inspect the Goods within a reasonable time after delivery to determine whether they comply with our Order and these terms and conditions.
We will notify you of any defects or other non conformity with our Order as soon as practicable after becoming of aware of such defect or non-conformity.
The quantities, weights, dimensions and fitness for purpose of the Goods reasonably ascertained by us in the course of inspection will be final for the purposes of these terms and conditions.
If Goods or Services are, in our reasonable opinion, defective or not in accordance with our Order or these terms and conditions, we may refuse to accept delivery of the Goods or Services and/or require from you, at our option (and as appropriate):
- replacement or resupply of the Goods or Services;
- supply of equivalent Goods or Services;
- repair of the Goods or payment of the cost of repairing the Goods;
- payment of the cost of replacing or acquiring equivalent Goods or Services;
- a reduction or refund of, or credit for, the purchase price; or
- recall of the Goods and a refund of, or credit for, any part of the purchase price that has been paid.
Where, in our reasonable opinion, it is necessary to avoid imminent danger or excessive loss or damage, we have the right to rectify deficiencies identified by us at your expense.
We reserve the right to withhold from future payments to you, such amounts to be refunded or credited to us in accordance with clause 5.4.
6. Price and Taxes
Prices are as stated in the Order and will not be changed, and unless otherwise stated are F.I.S. to the nominated place of delivery and include all packing costs.
Unless otherwise agreed, all prices quoted or agreed must be tax inclusive prices. In addition to quoting the tax inclusive price, the amount of GST payable by you in supplying the Goods or Services quoted for must be disclosed. You are not entitled to increase your prices or require any indemnity from us on account of any sales tax, GST or value added taxes, customs duties, excise or any other applicable government tax or duty, upon confirmation of Order.
For GST purposes you must provide us with a tax invoice in respect of each GST taxable supply you make to us prior to the end of the month in which the supply is made. The recovery by you of consideration for that taxable supply is subject to you providing such a tax invoice.
7. Invoicing & Payment
An invoice must be sent to us at the invoice address specified on our Order, and may not be generated or sent before delivery of the Goods or supply of the Services.
Unless otherwise agreed, payment of invoices will be made by 60 days following the month in which an invoice is received by us.
Payment of invoices does not affect our right to dispute invoices or to make claims against you in respect of Goods or Services.
8. Risk and Title
Risk and title in the Goods pass to us on delivery of the Goods in accordance with clause 3.4.
You warrant and represent to us that:
- You have the right to sell the Goods free from all encumbrances and that we will enjoy quiet possession of the Goods;
- the Goods will be of merchantable quality and fit for any purpose which we make known to you, or for which the Goods are commonly supplied;
- the Goods will be free from defects in design, material and workmanship;
- the Goods or Services will comply with our Order and the specifications provided by us to you from time to time;
- the Services will be supplied with all due care and skill by suitably qualified staff;
- where Goods are supplied by reference to a sample, the Goods will correspond with the sample;
- the Goods and Services will comply with all laws, statutory requirements and regulations relating to:
- their safety, manufacture, packaging, labelling, transportation and sale; and
- the nature, substance, quality, weight and measurement of the Goods and/or Services as applicable; and
You agree to indemnify us and keep us indemnified against all claims, suits, actions, demands, loss, costs, expenses (including legal expenses on a full indemnity basis), judgments and awards made against us or incurred by us, relating to Goods or Services delivered or supplied by you and products incorporating the Goods delivered or Services supplied by you, to the extent that such liability or loss is caused by your breach of our Order or these terms and conditions, or your negligent act or omission.
The indemnity in clause 10.1 is a continuing indemnity and is in addition to any statutory rights or remedies we may have or exercise against you.
You agree that the burden of proof in respect of alleged defects rests with you and that you will bear the costs of all product recalls.
You must ensure that you and your agents, employees and subcontractors do not disclose any information provided by us to you unless:
- the information is in the public domain (other than by reason of a breach of this clause); or
- the disclosure (including its form) is approved by us in writing.
12. Force Majeure
Neither party is liable for any failure to perform or delay in performing its obligations under these terms and conditions (other than an obligation to pay money) if that failure or delay is due to anything beyond that party’s reasonable control (Force Majeure Event). For the avoidance of doubt, an industrial dispute affecting your business is not a Force Majeure Event.
Any notice given by us, or failure by us to insist on strict compliance with any contract between us or any delay by us in exercising our rights under any contract between us will not constitute a variation or waiver of any provision of that contract or of any right available to us.
14. Assignment and sub-contracting
You may not assign or sub-contract the performance of your obligations under our Order or these terms and conditions without our prior written consent.
15. Governing Law
Our Order and these terms and conditions are governed by the law applicable in Victoria .
Any personal information collected in connection with this Agreement will only be used or disclosed for the purposes of ensuring performance of this Agreement and any future agreements. This may include disclosure within either of the parties’ organisations and to other parties involved in performing this Agreement or future agreements. The parties further agree that they will comply with the relevant privacy legislation.
Unless we otherwise agree in writing, all references to amounts of money are references to amounts in Australian currency.
References to weights, quantities or other measures are, unless otherwise agreed in writing by us, references to that weight, quantity or other measure within a variance of plus or minus 5%.
Headings are inserted for ease of reference only, and do not affect the interpretation of these terms and conditions.
If part or all of any provision of these terms and conditions or its application to any person or circumstance is illegal or unenforceable, the provision will be interpreted as may be necessary to ensure it is not illegal or unenforceable. If any provision or part of it cannot be interpreted in that way, the provision or part of it will be severed from these terms and conditions and the remaining provisions continue in force.