Definitions and Interpretation
- Confidential Information means any trade secrets, know-how, technical, scientific, commercial, financial, product, market or pricing or other information of or about KMA Pty Ltd (who will be henceforth referred to as KMA) in the Order or to which the Customer gains access in connection with this Contract.
- Contract means the contract entered into between KMA and Customer for the supplies pursuant to an Order and these Terms.
- Customer means the customer nominated in the Contract and any of its officers, employees, agents, contractors or sub-contractors.
- Goods mean any goods to be supplied by KMA to Customer.
- Intellectual Property means all intellectual property rights throughout the world whether present or future, registered or unregistered including the right to apply for registration of any such rights.
- Loss means any damage, loss, liability, cost , charge , expense, penalty, outgoing or payment (whether direct or indirect, consequential or incidental) and includes any economic loss or damage, loss of reputation, loss in connection with any claim against KMA by any person, loss of revenue or actual or potential profits, any costs or repair, lost opportunity, including the opportunity to enter into or complete an arrangement with a third party and legal costs and expenses on a full indemnity basis.
- Order means the order for the goods created or accepted by KMA.
- Price means the price of the Supplies excluding GST.
- Services means any services to be supplied by KMA to Customer.
- Specifications means KMA’s specifications for Goods.
- Supplies means the Goods and/or Services (as the case may be).
- Specifying anything after the words “including” or similar expressions does not limit what else is included unless express wording to the contrary.
Orders and Specifications
- No order for Goods or Services submitted by Customer is an Order until confirmed in writing by KMA.
- No order may be cancelled by Customer except with written agreement of KMA and on terms that the Customer indemnifies KMA against any loss KMA pays, suffers, incurs or is liable for as a result of cancellation.
- Customer agrees that these Terms apply to the Contract to the exclusion of any other terms, including any on printed documents issued by Customer at any time and are in addition to all other rights KMA may have at law. Any waiver by KMA of any right is not a waiver of any future rights KMA may have.
- If Goods are to be manufactured or processed by KMA in accordance with specifications submitted or varied by Customer, Customer indemnifies KMA against any loss KMA pays, suffers, incurs or is liable for in connection with any claim as a result of KMA’s use of such specifications.
- KMA may make any changes to the Specifications, specifications of the Supplies or packaging including conforming to safety or statutory requirements.
- If an order for Supplies is placed by Customer or its agent outside any minimum lead time, KMA shall not be obliged to accept such order, but if KMA does accept, the Customer is obliged and agrees to pay all additional costs or expenses incurred by KMA including any associated with delivery, increases in pricing or any other.
Price and GST
- Unless the context indicates otherwise, terms defined or used in A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.
- Unless varied by KMA or required by law, Price is exclusive of GST.
- Any rebates, discounts, allowances or other reductions in price calculated by reference to the sales value to which Customer is entitled or which are granted by KMA (Discounts) are to be calculated on the Price.
- Unless expressly stated to be inclusive of GST, the consideration for any taxable supply by a party (Supplier) under or in connection with these Terms does not include GST and may be increased by the Supplier by an amount equal to the GST payable on that taxable supply. If an adjustment event occurs the Supplier must issue an adjustment note to the recipient and the difference between the GST payable on the supply (considering any adjustments) and the amount included in the price for the supply must be paid or refunded to the recipient as applicable. Any amount to be reimbursed or indemnified in connection with these Terms must be reduced by an amount equal to any input tax credit to which the party being reimbursed is entitled in respect of that amount.
- KMA reserves the right, at any time before delivery, to increase the Price (including for any Goods to be supplied under an agreement to which these Terms apply for the sale, purchase and supply of a quantity of Goods over a period of time and not withstanding anything contained in such agreement) to, among other things, reflect any increase in costs to KMA which are due to any factor (including a significant increase in the costs of, or shortages or the unavailability of, labor or materials, the increase or imposition of any tax, duty or other levy, any variation in exchange rates, any change of delivery dates, any change in quantities or specifications of the Supplies requested by Customer, or any delay caused by supply or non supply of instructions of Customer.
- Subject to clause 2.2, if Customer does not want to accept any increase in Price, Customer can elect to cease any or all future orders of Supplies from KMA.
- Delivery of Goods to Customer occurs, in the case of Goods to be collected by Customer from KMA at the agreed time for collection, or in the case of Goods to be delivered at the time KMA tendered delivery of the Goods. Any time which KMA quotes for delivery of Supplies is an estimate only.
- Customer bears all costs associated with the provision of the Supplies including any government taxes, duties or imposts, unless stated otherwise in the Order.
- Where the Customer fails to collect or take delivery of Supplies at an agreed time KMA may charge the Customer a service fee.
- Any containers used for the delivery of Goods or other equipment of KMA provided for use by Customer (Equipment) at all times remains the property of KMA and title does not pass in any circumstances. Customer must keep the Equipment clean and undamaged and return in good condition post delivery of Supplies.
- Customer must accept and pay for, in fulfilment of an Order, delivery of +/- 5% of the quantity specified in an Order and must pay for the quantity actually delivered.
- Where KMA has agreed to extend credit to Customer, Customer must pay for the Supplies in full within preapproved set payment terms, unless otherwise determined by KMA, however KMA may require Customer to pay cash in full prior to delivery at any time.
- Discounts will be credited to Customer by KMA, Customer cannot deduct any Discounts from moneys owing by it to KMA, Customer must pay KMA in full for Supplies delivered even if a delay in the delivery of the Supplies or Customer disputes the quality, quantity or condition of Supplies delivered or provided. KMA is entitled to set off any sums owed by it to Customer against the Price.
- If Customer has not paid in full by the due date KMA may, without limiting any other rights, charge Customer interest on the overdue moneys at the cash rate (displayed about 11.00am Sydney time on the Reserve Bank of Australia website on the date of delivery) plus 2%, from delivery of the Supplies until paid in full, and take action against Customer for the Price for which payment has not been made, even though title in the Goods remains with KMA.
Risk and Title
- Risk or loss or damage to the Goods passes to Customer on delivery.
- Until Customer has paid for the Goods in full and also paid all other moneys due and payable to KMA, title in the Goods remains with KMA, Customer holds the Goods as bailee of KMA and must ensure the Goods are properly stored, separate from all other goods, protected, readily identifiable, clearly marked as owned by KMA and fully insured for an amount not less than the Price.
- If Customer sells the Goods or any goods incorporating or processed using the Goods (Processed Goods) to customers, Customer in its position as fiduciary assigns to KMA the benefit of any claim against the customers and will hold on trust in a separate identifiable account, and account to KMA for all proceeds of sale or such part of the proceeds of sale as is equivalent to the Price of the Goods incorporated or used in the Processed Goods. KMA has the rights to such proceeds whether or not held in a separate identifiable account.
- Customer acknowledges that the Contract constitutes a security agreement under the Personal Property Securities Act 2009 (PPSA), that KMA has a security interest in the Equipment, Goods (including any Goods to be supplied in the future) and any proceeds, KMA’s rights in the Goods established under this clause 6 are a 'purchase money security interest' (PMSI) and KMA will have a PMSI in proceeds of those Goods. Customer agrees to do anything required by KMA to enable KMA Pty Ltd to register the security interest and to maintain the registration including by paying all costs, expenses and other charges incurred by KMA Pty Ltd in preparing, lodging or registering any financing statement or financing change statement in relation to any such security interest, maintaining those registrations, and enforcing any security interests.
- Customer shall not charge the Goods in any way, nor grant or give any interest in the Goods while they remain the property of KMA, nor allow any third party to acquire a security interest in the Goods.
- If Customer fails to comply with any of these Terms then Customer must return any Goods on which there are outstanding amounts owing on request; Customer authorizes KMA and any person authorized by KMA to enter premises where the Goods may be located to take possession of the Goods; GFG may retain, sell or otherwise dispose of those Goods.
- Customer agrees to the extent permitted under the PPSA, that the following provisions will not apply when enforcing these Terms: s95 and s130 to the extent it requires KMA to give a notice to Customer; s12l(4); s132(3)(d); s132(4); ss135; s142, and s143, unless otherwise agreed by KMA and Customer will not disclose nor authorize the disclosure of, any information of the kind described In s275(1) to any person.
- Unless the context indicates otherwise terms deemed or used in the PPSA have the same meaning as in that Act.
- Force Majeure
KMA is entitled (without liability to Customer) to delay, vary or cancel the performance of any of its obligations if and to the extent that it is prevented from, hindered in or delayed in the performance of any of its obligations by normal route or means of delivery or at costs commercially acceptable to KMA through any circumstances beyond its control including acts of God, governmental actions, strikes or other labor disputes (whether or not relating to the Company’s workforce), lock-outs, accidents, war or national emergency, acts of terrorism, protests, riot, civil commotion, explosion, flood, epidemic, fire, natural disasters, extreme adverse weather, reduction in or unavailability of energy sources, breakdown of plant or machinery, restrictions or delays affecting delivery of the Supplies, default of suppliers or subcontractors, shortage or unavailability of raw materials from normal sources of supply or the amendment or coming into force of any regulatory provision affecting the import or export of the Supplies or any ingredients or materials for production of the Supplies each a Force Majeure Event.
Shortfall, Damaged and Defective Goods
- Goods will be considered to have been delivered in full in good condition unless Customer notifies KMA in writing of the shortfall, damage or defect within 2 business days of delivery.
- If Customer gives KMA notice under clause 8.1, it must preserve the Goods in the state in which they were delivered for 14 days after notice and at KMA’s option, allow KMA or its representative to inspect the Goods or return some or all Goods to KMA in the same condition as delivered, except in each case for any normal deterioration due to the passing of time.
- KMA is not obliged to accept return of or allow credit for Goods not sold by Customer by the use-by date for the Goods.
Right of Entry, Resale and Termination
- If Customer
- Enters or threatens to enter into bankruptcy or any other form of insolvency, administration, management or receivership or scheme or arrangement with its creditor;
- Ceases or threatens to cease to conduct business;
- Breaches any of these Terms; or
- In KMA’s opinion, fails to perform its obligations in a satisfactory manner, engages in unlawful or dishonest activity or fraud, has a conflict of interest or any other misconduct; KMA may, without affecting its accrued rights and obligations, take possession of and resell the Goods or terminate any Contract immediately by notice to Customer (without liability to Customer) and withhold or suspend any deliveries of Goods or performance of Services pursuant to the Contract.
- KMA may terminate any Contract at any time by giving Customer no less than 30 days notice in writing, or if a Force Majeure Event continues for 30 days or more, on immediate notice to Customer.
- If Customer
Confidential Information and Intellectual Property
- Customer must keep all Confidential Information secret unless it comes into the public domain (other than because of a breach of this Contract or any law) and must not use Confidential Information except as necessary for the purposes of this Contract. On termination or expiry of this Contract, Customer must promptly return all Confidential Information to KMA Pty Ltd, or destroy it if KMA requires.
- Intellectual Property owned by either party at the commencement of the Contract remains the property of that party. Any Intellectual Property developed or created during the performance of the Contract vests in KMA immediately upon its creation and Customer assigns all right, title and interest in such Intellectual Property to KMA and will do any further acts or execute any documents required by KMA to affect such assignment.
Limitation of Liability
- Customer may have certain rights under the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth) including consumer guarantees that the Goods and Services KMA provides to Customer will be of acceptable quality, fit for the purpose disclosed and carried out by KMA with due care and skill. These Terms do not exclude or limit these guarantees or any other statutory rights that Customer may have under applicable laws.
- To the extent permitted by law:
- All guarantees, conditions and warranties, express or implied, by law, custom or otherwise are excluded; and
- KMA liability for any Loss arising from a breach of such guarantees, conditions and warranties, or these Terms, is limited to;
- In the case of the Goods, either replacement of the Goods, the supply of products equivalent to the Goods, the repair of the Goods, of the cost of replacing the Goods or acquiring products equivalent to the Goods, or the payment of the cost of having the Goods repaired; and
- In the case of Services, the supply of the Services again or the payment of the cost of having the Services supplied again.
- To the extent permitted by law, KMA will not be liable for any Loss which Customer pays, suffers, incurs or is liable for any reason, including as a result of delay, negligence or any act, advice, matter or thing done or permitted or omitted to be done by KMA, its employees or agents in anyway connected with or arising out of these Terms.
- Customer indemnifies KMA against any Loss which KMA pays, suffers, incurs, is liable for in connection with any breach of these Terms or negligence by Customer or with KMA exercising its rights.
Customer will not directly or indirectly, in private business or public sector dealings, offer, give or agree to offer or give any payment, gift or other advantage with respect to any matters which are the subject of these Terms which would violate any anti-corruption laws or regulations; is intended or does, influence or reward any person for acting in breach of an expectation of good faith, impartiality or trust; or which a reasonable person would otherwise consider to be unethical, illegal or improper.
- KMA may vary these Terms at any time by notice to Customer.
- If any part of this Contract is or becomes illegal, void or unenforceable, this does not invalidate the rest of the Contract.
- These Terms are governed by and construed in accordance with the laws of the State or Territory from which these Terms are sent by KMA and each party irrevocably submits to the exclusive jurisdiction of the courts of that State or Territory.