1. APPLICATION OF THESE CONDITIONS
These conditions, subject to any variations we agree to in writing, apply to all supplies made by the company specified in the invoice or the contract as the supplier to the entity specified in the invoice or the contract as the purchaser. These conditions, in their present form or as changed, pursuant to these conditions, together with the relevant credit application form (if applicable), invoices and Purchase Orders exchanged between the parties form the contract.
Where the supply purports to be made on or subject to terms and conditions other than these conditions, the Purchaser agrees that such other terms and conditions are disregarded and form no part of the Contract unless Jalco agrees otherwise in writing.
The Purchaser acknowledges and agrees that:
- 3.1 Jalco’s liability under these conditions falls solely on Jalco;
- 3.2 the obligations the Purchaser accepts and warranties the Purchaser makes are accepted and made for the benefit of Jalco and all of Jalco’s Related Bodies Corporate; and
- 3.3 in order to satisfy the Purchaser’s forecasts and/or Purchase Orders, Jalco may have to purchase raw materials in minimum quantities that may not be used and Jalco may require the Purchaser to cover the costs of such raw materials if they are not used and any applicable holding and storage costs.
- 4.1 If required by Jalco, the Purchaser will provide Jalco with a forecast of future requirements for the Goods.
- 4.2 The Purchaser acknowledges that Jalco will be entitled to rely on the accuracy of such forecast(s) for the purpose of ordering raw materials and arranging its resources so as to be able to meet those forecast requirements.
- 4.3 If any such forecast is materially inaccurate Jalco shall be entitled to invoice the Purchaser for all costs, expenses or losses which result from Jalco having relied on the inaccurate forecast. Such invoice will be subject to the normal terms of payment applying to the Purchaser.
- 4.4 In any event, Jalco shall be entitled to invoice the Purchaser for all finished Goods made to forecast and not ordered by the Purchaser within 3 months of manufacture. Such invoice will be subject to the normal terms of payment applying to the Purchaser.
5. QUOTATIONS AND PURCHASE ORDERS
- 5.1 Any quotation given by Jalco lapses if not accepted by the Purchaser within 30 days of its date of issue.
- 5.2 A Purchase Order is only accepted when the Purchaser receives written acceptance from Jalco and Jalco will only accept Purchase Orders which are accompanied by a purchase order number.
- 5.3 Jalco shall be entitled to require the Purchaser to order a minimum quantity of Goods as specified by Jalco.
6. DEVELOPMENT OF GOODS
Unless otherwise agreed between the parties, if the Purchaser requires research and development or any improvements in respect of the Goods, it will be liable for the costs relating to such research, development and improvements.
7. TERMS OF PAYMENT
Terms of payment are cash with order, COD (if agreed to by Jalco) unless credit or the use of credit card has been approved by Jalco. If credit is satisfactorily established, invoices will be paid on or before the last business day in the month following the month of invoice (without deduction or set-off of any kind), unless otherwise agreed to by Jalco in writing. If use of credit card is approved, then payment is due on the date of invoice.
In the event payment is not received by the due date Jalco reserves the right to charge interest at the 90 day Bank Bill Swap Bid Rate (as quoted on Reuters page BBSY at 10.45am) plus 5% commencing from the due date of payment in respect of all the Purchaser’s indebtedness which is overdue. Any interest so levied shall accrue on a daily basis and shall accrue until all monies owing are paid in full. The Purchaser shall also be liable to pay all expenses, legal costs on a solicitor and own client basis, of Jalco in relation to obtaining remedy of the failure to comply.
8. DEFAULT AND TERMINATION
If the Purchaser defaults in payment, or an application is made to a court to wind up the Purchaser, or a receiver or administrator is appointed to manage the affairs of the Purchaser, or the Purchaser is in material breach of the Contract, then Jalco may terminate the Contract or any Purchase Order immediately and may recover from the Purchaser, at a minimum, reasonable compensation for materials purchased and ordered and labour expended in complying with the Purchase Orders.
9. DELIVERY AND RISK
- 9.1 While Jalco will use all reasonable endeavours to deliver by the date specified in the Purchase Order, it does not unless otherwise agreed in writing guarantee delivery on that date and is not liable for any Loss resulting from late or early delivery. Delivery of the Goods shall be effected when the Goods are unloaded from the delivery vehicle or placed on the Purchaser’s or the Purchaser’s agent’s nominated carrier. If no date for delivery has been specified, then the Goods shall be supplied to the Purchaser and the Purchaser shall receive the Goods as soon as practicable after the Purchase Order has been accepted by Jalco and the Goods have been manufactured.
- 9.2 Risk in the Goods passes to the Purchaser at the time of delivery. Delivery to the Purchaser is deemed to occur at the time of delivery to the Purchaser, its agent or carrier. The Purchaser is responsible for inspecting the Goods upon delivery and any damage or fault must be identified and noted at such inspection and notified to Jalco within 14 days of delivery of the Goods in order to make any claim under clause 21 of these conditions.
10. PASSING OF PROPERTY
- 10.1 Jalco’s rights under this clause 10 secure:
- a) Jalco’s right to receive the price of all Goods sold under this Contract;
- b) all other amounts owing to Jalco under this Contract or any other contract.
- 10.2 All payments received from the Purchaser must be applied in accordance with section 14(6)(c) of the PPSA.
- 10.3 The Purchaser agrees that legal title and property in the Goods is retained by Jalco until payment is received in cleared funds from the Purchaser of all sums owing to Jalco, whether under the Contract or otherwise. The Purchaser must keep the Goods separate from other goods and store the Goods so that they are readily identifiable as those supplied by Jalco.
- 10.4 The Purchaser must not sell the Goods except in the ordinary course of the Purchaser’s business.
- 10.5 If the Purchaser fails to pay by the due date any amount owing to Jalco, Jalco may (without prejudice to any of its other rights) recover and resell any of the Goods in which property has not passed to the Purchaser. In addition to any rights Jalco may have under Chapter 4 of the PPSA, Jalco may, without notice, enter any premises where it expects the Goods may be located and remove them without committing a trespass, and the Purchaser authorises Jalco to enter onto the premises where the Goods are kept to take possession of the Goods for that purpose at any time. The Purchaser also indemnifies Jalco from and against all Loss suffered and or incurred by Jalco as a result of exercising its rights under this clause 10. If there is any inconsistency between Jalco’s rights under this clause 10 and its rights under Chapter 4 of the PPSA, this clause 10 prevails.
- 10.6 The Purchaser acknowledges and warrants that Jalco has a security interest (for the purposes of the PPSA) in the Goods and any proceeds until title passes to the Purchaser in accordance with this clause 10. The Purchaser must do anything reasonably required by Jalco to enable Jalco to register its security interest with the priority Jalco requires and to maintain that registration.
- 10.7 The security interest arising under this clause 10 attaches to the Goods when the Purchaser obtains possession of the Goods and the parties confirm that they have not agreed that any security interest arising under this clause 10 attaches at any later time.
Any request by the Purchaser for cancellation of a Purchase Order must be in writing and may be delivered by post, hand delivery or facsimile or email. The Purchaser is liable to reimburse Jalco for the costs it has incurred for research, development, labour and materials in developing the Goods and fulfilling the Purchase Order up to the date the request for cancellation is received and acknowledged by Jalco.
12. FORCE MAJEURE
- 12.1 Neither party is liable for any Loss incurred by the other party as a result of any delay or failure to observe any of these conditions (other than an obligation to pay money) as a result of any circumstance beyond the party’s control, including but not limited to any strike, lock-out, labour dispute, act of God, fire, flood, accidental or malicious damage or breakdown in machinery. The party affected must notify the other party as soon as possible of such circumstance.
- 12.2 During the continuance of such circumstance the obligations of the party affected, to the extent they are affected by the circumstance, are suspended and resume as soon as possible after the circumstance has ceased to have effect.
13. JALCO’S LIABILITY
- 13.1 Nothing in these conditions is to be interpreted as having the effect of excluding, restricting or modifying any statutory guarantee, condition or warranty, or right or liability implied by any applicable legislation into the Contract, if such exclusion, restriction or modification would be void or prohibited by the legislation.
- 13.2 To the extent that Jalco breaches any statutory guarantee, condition or warranty implied into the Contract and which cannot be excluded or modified, Jalco’s liability is limited to, at Jalco’s discretion:
- a) in the case of Goods:
- i.) replacement of the Goods or supply of equivalent Goods;
- ii.) payment of the cost of replacing the Goods or acquiring equivalent Goods;
- iii.) repair of the Goods; or
- iv.) payment of the cost of having the Goods repaired; or
- b) in the case of services, to:
- i.) supply of the services again; or
- ii.) payment of the cost of having the services supplied again.
- 13.3 Subject to (a) and (b) above, Jalco is not liable to the Purchaser (or to any third party claiming through the Purchaser) for any Loss caused by any act or omission of Jalco, its employees or agent, and whether based on negligence, tort, contract or otherwise. Under no circumstances shall Jalco be liable for indirect or consequential losses.
- 13.4 To the extent permitted by law, the Purchaser will be deemed to be the manufacturer of the Goods and the Purchaser indemnifies Jalco for all Loss arising from any claim (including third party claims) associated with the Goods except to the extent that the claim arises from a failure by Jalco to supply the Goods in accordance with the specifications.
- 13.5 Where the Goods are to be manufactured in accordance with the Purchaser’s specifications, the Purchaser warrants the accuracy of those specifications and that Jalco will not be liable for any claim (including third party claims) in connection with those Goods to the extent they are supplied in accordance with the specifications.
- 13.6 For the avoidance of doubt, Jalco will not be liable for:
- a) any damage to any of the Purchaser’s property (including any raw materials provided by the Purchaser) that occurs on Jalco’s premises except to the extent that such damage is caused directly as a result of Jalco’s negligence; and
- b) any Loss due to the use of raw materials, equipment, services , other parts or components of the Goods and any other items supplied by the Purchaser or the Purchaser’s designated suppliers, and the Purchaser will indemnify Jalco for all such Loss suffered or incurred by Jalco.
14. COMPLIANCE WITH LAWS AND STANDARDS
Unless otherwise agreed, the Purchaser must comply with all laws and standards relating or applicable to the Goods.
15. ARTWORK, PRINTING PLATES, DIES AND TOOLS – (IF APPLICABLE)
- 15.1 All works produced by Jalco and any intellectual property in and to such works, remain the exclusive property of Jalco unless otherwise agreed in writing, and Jalco may charge the Purchaser for maintenance of such works. Where the Purchaser supplies a mould, die, tool, printing plate or any other item used in the manufacturing process:
- a) Jalco shall not be liable for any loss or damage of any such item; and
- b) the Purchaser shall reimburse Jalco for all maintenance expenses.
- 15.2 Jalco will exercise reasonable care in printing the Australian Product Number (“APN”) symbol but does not guarantee the accuracy or scanability of APN symbols. Jalco’s liability for manufacturing defects in APN symbols is limited to, at Jalco’s discretion, replacement of the packaging bearing the defective symbol or rectification of the symbol, with the manner of rectification at Jalco’s discretion.
16. INTELLECTUAL PROPERTY
Any technical information, formulations, knowledge or processing methods at any time transmitted either orally or in writing by Jalco to the Purchaser shall remain the property of Jalco and shall be considered absolutely confidential by the Purchaser who shall not use them for any purpose nor sell, transfer or divulge them in any manner to anyone without the prior written consent of Jalco. The Purchaser warrants that the use by Jalco of any instructions, formulations, specifications or designs supplied by the Purchaser will not infringe the patents, trade marks, designs or copyright (”intellectual property”) of any other person and the Purchaser agrees to indemnify Jalco against any claim relating to or arising from the infringement of any intellectual property of any other person. If at any time a claim is made against Jalco or Jalco becomes aware that a claim is likely to be made against Jalco for infringing any intellectual property or contributing to any such infringement by Jalco or any other person as a result of supplying Goods, Jalco may immediately terminate or suspend this Contract.
17. QUANTITY AND QUALITY TOLERANCES
Where the Purchaser supplies specifications to Jalco, any Goods not varying in the specification stipulated by the Purchaser by more than the established industry tolerance must be accepted by the Purchaser as complying with the Contract and in the absence of any established industry tolerance, a reasonable tolerance must be allowed by the Purchaser.
18. PRICE VARIATION
- 18.1 The price quoted by Jalco is unless otherwise agreed in writing subject to variation at any time prior to the date of acceptance of the Purchase Order upon written notice to the Purchaser. Without limitation, if the cost of wages, materials or any other supply or input to Jalco increases after the date of any written price and/or price list and before delivery of the Goods or completion of the work specified in the Purchase Order, Jalco may subject to other agreed pricing mechanisms add a fair and reasonable amount to the price quoted to cover the increase and the Purchaser must pay the price as varied.
- 18.2 Any addition or change to the specifications of the Goods must be agreed in writing by both Jalco and the Purchaser and may result in a price variation in accordance with paragraph 18.1.
19. TAX AND DUTIES
The Purchaser is liable for all taxes (including GST), duties, levies and other government fees and charges in relation to the Goods. Unless specified otherwise, prices quoted do not include such taxes (including GST), duties, etc.
20. GOODS AND SERVICES TAX
- 20.1 If, and to the extent, any supply of the Goods under the Contract is a taxable supply within the meaning of the GST Law, the price for the Goods will be increased to include GST payable by Jalco in respect of the supply.
- 20.2 All rebates, discounts or other reductions in price will be calculated on the GST exclusive price.
- 20.3 The parties agree that:
- a) the parties must be registered persons within the meaning of the GST Law;
- b) Jalco must provide tax invoices and if applicable adjustment notes to the Purchaser in the form prescribed by or for the purposes of the GST Law; and
- c) costs required to be reimbursed or indemnified excludes any amount that represents GST for which an input tax credit within the meaning of the GST Law can be claimed.
Any claim by the Purchaser arising out of the Contract must be made in writing and may be delivered by post, hand delivery, facsimile or email as soon as practicable after discovery by the Purchaser of the problem and in any event no later than 14 days after delivery of the Goods. To the extent Jalco can identify the Goods and the date of manufacture, the Purchaser must supply a sample and information, if requested. Jalco has the right at any time within 14 days after receipt of the claim to inspect the relevant Goods. If the Purchaser disposes of any of the Goods within the 14 day period, except with the written consent of Jalco, all claims in respect of the Goods disposed of are deemed to have been waived by the Purchaser.
Unless required by law or otherwise agreed, the Purchaser must keep confidential all information it receives from Jalco which relates to the Goods, Jalco’s business or any services Jalco provides and any of Jalco’s intellectual property (including without limitation any formulations), other products or processes except to the extent that information is in the public domain.
Unless otherwise instructed by the Purchaser in writing or included in a written quotation or price list by Jalco, insurance cover for the Goods in transit will not be arranged by Jalco. Instructions for insurance cover will only be accepted in writing at the time the Goods are ordered. Jalco is not obliged to give the Purchaser a notice referred to in Section 35(3), Sale of Goods Act 1923 (NSW) (or any equivalent legislation).
If the Purchaser requests delivery by means other than the means normally used by Jalco, then the Purchaser must pay all additional costs associated with the means chosen. If, within 4 weeks after the Goods are available for dispatch, Jalco is unable or finds it impractical to transport the Goods by the means chosen, Jalco may transport the Goods by any means it considers suitable and will advise the Purchaser accordingly.
25. OTHER DELIVERY PROVISIONS
- 25.1 Delivery may be made in one or more lots and at different times and by separate deliveries or shipments. Each lot must be accepted and paid for, notwithstanding any late delivery or non-delivery of any other lot. If Jalco allows the Purchaser to nominate a delivery date, such date may not be more than 60 days after the expected date of manufacture of the Goods, as advised by Jalco to the Purchaser.
- 25.2 The quantity of Goods delivered by Jalco under a Purchase Order can vary by up to 10% of the quantity specified by the Purchaser in the Purchase Order, provided the Purchase Order satisfies any minimum order quantity specified by Jalco.
- 25.3 If the Purchaser is unable or unwilling to accept delivery on or before the nominated delivery date, or if no delivery date is nominated and the Purchaser is unable to accept delivery when Jalco gives notice that the Goods are available for delivery, then Jalco will hold the Goods in stock for 45 days after which time it may, at its discretion:
- a) continue to hold the Goods and charge the Purchaser for storage;
- b) invoice the Purchaser and deliver the Goods in accordance with prior arrangements, notwithstanding that the Purchaser’s representative or agent is not present or is unwilling to accept the Goods; or
- c) treat the Contract as having been repudiated by the Purchaser and invoice the Purchaser for the full Contract price for the Goods and any other costs incurred by Jalco less any amounts received by Jalco from a bona fide sale of the Goods to a third party.
- 25.4 Jalco will deliver the Goods to the Purchaser’s nominated store. The Purchaser must unload the Goods at the Purchaser’s risk.
- 25.5 If the Purchaser requires Goods to be delivered into the Northern Territory or anywhere north of (and including) Port Hedland in Western Australia, or outside of the metropolitan area of Brisbane, Jalco is only obliged to deliver the Goods to a nominated store in Adelaide (for Northern Territory) or Perth (for Western Australia) or Brisbane (for Queensland). Any further transport of the Goods by Jalco is as agent for the Purchaser, and the Purchaser is liable for the extra cost of delivery of the Goods.
26. PRODUCT SPECIFICATIONS AND DESIGN CHANGES
Jalco may make any changes or improvements to the design or specification of the Goods (whether as a result of applicable statutory requirements or otherwise) at any time without giving prior written notice to the Purchaser unless otherwise agreed in writing.
Any tooling charges are payable by the Purchaser either as an upfront payment or by amortised payments, as agreed in writing by the parties. Amortised tooling remains the property of Jalco unless otherwise agreed in writing.
Jalco retains the right of possession of any pallets used for delivery of the Goods, and the Purchaser agrees to indemnify Jalco in relation to the hire and replacement costs of any pallets not returned in good order and condition to Jalco within 28 days of delivery of the Goods, unless otherwise agreed in writing by Jalco.
29. PAYMENT BY LETTER OF CREDIT
If the Purchaser is not resident in Australia or is not an Australian company, payment must be made by irrevocable letter of credit. If the Purchaser requires delivery of the Goods outside Australia, prices quoted are “free on wharf” free alongside ship, unless otherwise agreed in writing by Jalco.
30. ASSIGNMENT AND NOVATION
The Purchaser must not assign or novate the Contract or otherwise deal with the benefit of it or a right under it, or purport to do so, without the prior written consent of Jalco. A change in control of the Purchaser will be deemed an assignment for the purposes of this contract;
31. RELATIONSHIP OF THE PARTIES
Except as expressly provided in the Contract nothing in the Contract is intended to constitute a fiduciary relationship or an agency, partnership or trust; and no party has authority to bind any other party.
- 1. SIGNIFICANT REGULATORY CHANGES
Should any significant change in law or regulation (including the introduction of any form of emission or carbon trading scheme or emissions or carbon tax) occur during the Term, Jalco will subject to clause 13.1 be entitled, by 10 days’ notice in writing to the Purchaser, to increase the price payable by the Purchaser for Products by an amount equal to the increased cost that will be incurred by Jalco in supplying the Products to the Purchaser as a result of such significant change.
32. ENFORCEMENT OF SECURITY INTEREST
If Chapter 4 of the PPSA would otherwise apply to the enforcement of the security interest created under this Contract, the Purchaser agrees that the following provisions of the PPSA will not apply; section 95 (notice of removal of accession) to the extent that it requires Jalco to give a notice to the Purchaser; section 121(4) (enforcement of liquid assets – notice to grantor); section 130 (notice of disposal), to the extent that it requires Jalco to give a notice to the Purchaser; paragraph 132(3)(d) contents of statement of account after disposal); subsection 132(4) (statement of account if no disposal); section 135 (notice of retention); section 142 (redemption of collateral); section 143 (reinstatement of security agreement).
33. NOTICES UNDER PPSA
Jalco does not need to give the Purchaser any notice under the PPSA (including a notice of verification statement) unless the notice is required by the PPSA and that requirement cannot be excluded.
The Purchaser must comply with the Privacy Law with respect to any act done or practice engaged in by the Purchaser for the purposes of this Contract, including, without limitation, in relation to the collection, use disclosure, storage, destruction or de-identification of Personal Information. The Purchaser must also enter into a contractual arrangement to this effect with any subcontractor or third party to which it discloses Personal Information in connection with this Contract.
- 35.1 Any of these conditions may be varied in writing by Jalco unless otherwise agreed between the parties. Any variation to these conditions will only apply to Purchase Orders placed after the condition has been varied.
- 35.2 Jalco may set-off any amounts owed by it to the Purchaser under the Contract against amounts owed by Jalco to the Purchaser on any account whatsoever.
- 35.3 The waiver by Jalco of any provision, or breach of any provision, of the Contract is not to be construed as a waiver of any other provision or a breach of any other provision, or further breach of the same or any other provision of the Contract.
- 35.4 If any provision of the Contract is unenforceable or void either in whole or in part for any reason, then that provision (or part) is deemed to be deleted without in any way affecting the validity or enforceability of any other provision.
- 35.5 This clause, clauses 8, 10, 13 and 16 and any other clauses that make provision for the continued operation of the Contract survive termination or expiration of the Contract and remain in force after the termination or expiration of the Contract.
- 35.6 The Contract (including the details appearing on the Purchase Order) constitute the entire agreement between the Purchaser and Jalco and no modification is binding in relation to the Contract unless agreed to in writing by Jalco.
- 35.7 Any dispute arising out of the Contract is governed by the laws of the State or Territory of Australia where the Purchase Order was received by Jalco and the Purchaser submits to the jurisdiction of and agrees to be bound by the Federal Courts of Australia and of that State.
- 35.8 The following words have the following meanings in these conditions:
- a) “Contract” means the contract between the Purchaser and Jalco for the supply of the Goods, as described in clause 1;
- b) “Goods” means all goods and/or services ordered in the Purchase Order;
- c) “GST” has the same meaning as in the GST Law;
- d) “GST Law” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
- e) “Jalco” means the company identified in the invoice;
- f) “Loss” means any loss, liability, damage, expense or cost whatsoever and includes (without limitation) indirect or consequential loss or damage, loss of profits or business opportunity, and damage to equipment or property;
- g) “Personal Information” has the meaning set out in the Privacy Act 1988 (Cth).
- h) “PPSA” means the Personal Property Securities Act 2009 (Cth);
- i) “Privacy Law” means the Privacy Act 1988, including (without limitation) the 13 Australian Privacy Principles (APPs) in the Privacy Act 1988 (Cth) and all relevant Australian privacy laws, including the Health Privacy Principles under state legislation (e.g. those contained in the Health Records Act 2001 (Vic) or the privacy provisions contained in Part 2 of the Health Records (privacy and Access) Act 1997 (ACT)), the Privacy Regulations 2014 and the Privacy (Credit Reporting) Code.
- j) “Purchase Order” means a purchase order issued by the Purchaser to Jalco;
- k) “Purchaser” means the person (including its successors, personal representatives and permitted assigns) who acquires the Goods from Jalco, and where this consists of more than 1 person the obligations in the Contract are deemed to be joint and several; and
- l) “Related Bodies Corporate” has the meaning given to it in the Corporations Act 2001 (Cth).