APOLLO KITCHENS PURCHASE ORDERS ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS
APOLLO KITCHENS PURCHASE ORDERS ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS
“Purchaser” means Apollo Kitchens (NSW) Pty Limited.
“Customer” means the person, firm or corporation to whom the Purchase Order is addressed.
“Confidential Information” means any information provided by the Purchaser to the Customer concerning its product requirements, product specifications, business, customers (including customer names, contact details, product requirements, product spend details, the types and specifications of products and service supplied by the Purchaser to the Customer, the prices and terms on which the Purchaser provides products and services to its customers), contracts, system and system access details, customer ordering and business software, product cost and pricing, sales methods and techniques, sales figures, marketing plans, budget and other financial information, employee details, internal business policies and procedures, and any information generated during and as a result of the Agreement (including any pricing arrangements, rebates, settlement discounts, terms of payment, other terms of trade, joint marketing plans and artwork, design and specifications for any products manufactured specifically at the Company’s request), but does not include: (a) information or knowledge which is already publicly known or which subsequently becomes generally publicly known other than as a direct or indirect result of a breach of this Agreement; or (b) Information or knowledge which is required to be disclosed by law.
“Australian Consumer Law” means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) as given effect under Part XI of the Competition and Consumer Act 2010 (Cth), and under the same or similar provisions of the Australian Consumer Law and Fair Trading Act 2012 (Vic) (as amended or replaced from time to time).
“Consumer” means a consumer within the meaning of section 3 of the Australian Consumer Law.
“Purchase Order” means the purchase order between the Purchaser and Customer to which these terms and conditions relate.
2. Acknowledgement The Customer shall promptly in writing acknowledge acceptance of the Purchaser’s Order. Objections, if any, must be raised by the Customer before proceeding to execute the Order.
3. Inconsistent Terms In the event that any invoice or other document forwarded to the Purchaser by the Customer contains anything inconsistent with these terms and conditions, such document and any goods which it accompanies are only accepted by the Purchaser on the express understanding that these terms and conditions are to prevail in all cases.
4. Acceptance or Rejection All the goods covered by the Order whether paid for or not shall be subject to inspection by the Purchaser. If any of the goods do not comply with the requirements of these terms and conditions, the Purchaser may either reject the goods or any of them, or retain the whole or any of them, without prejudice to its rights at law, including under the Australian Consumer Law. Following inspection the Purchaser will notify the Customer of any defects discovered and hold any goods claimed to be so defective at the risk and pending the instructions of the Customer for a period not exceeding 30 days from such notification. If the Customer fails to respond to the Purchaser’s claim that such goods are defective within 30 days of the Purchaser having notified the Customer, the Purchaser is entitled to cancel the Order and return the goods at the Customer’s expense and be entitled to a refund of any payment that the Purchaser has made to the Customer for the goods.
5. Quality and Fitness Goods supplied hereunder shall:
(a) comply in all respects with the description set out on the Purchase Order;
(b) comply with all consumer guarantees as prescribed under the Australian Consumer Law; and
(c) be of a standard not less than that prescribed for such goods by the Standards Association of Australia.
The Purchaser relies on the skill and judgement of the Customer with the intent that the goods ordered shall be fit for the purpose for which they are required by the Purchaser.
6. Insurance Unless otherwise stated on the Purchase Order, insurance is the responsibility of the Customer until the goods are accepted by the Purchaser.
7. Invoices Invoices shall:
(a) be rendered separately for each delivery and accompany goods;
(b) cover not more than one Purchase Order;
(c) be rendered with Purchase Order number quoted thereon.
If invoice is subject to settlement discount, period will be calculated from the date the invoice is received by the Purchaser.
8. Other Documents All packing slips, delivery dockets and other documents or correspondence relating to the Order must bear the Purchaser’s Purchase Order number.
9. Statutory Requirements The Customer shall comply with all statutory and other requirements at law in connection with the manufacture, packing, packaging, marketing, branding and delivery of the goods to the Purchaser.
10. Patent Rights By accepting the Order the Customer agrees to defend, protect and save harmless the Purchaser, its successors, assigns, customers, and the users of its product by reason of the use of the articles hereby ordered against all claims for actual or alleged infringement of any Letters Patent, Trademarks or similar protection. If the Customer makes representation that goods ordered are protected by one or more patents, and any such patents are found to be invalid, this contract may forthwith be cancelled by the Purchaser.
11. (1) Design to be retained in confidence Any articles of work or work done according to the Purchaser’s design, or developed for it at its direction, or any designs supplied by the Purchaser or copies thereof, shall be held by the Customer on behalf of the Purchaser and at its disposal and shall not be disclosed or furnished to any other person, firm or government without the Purchaser’s written consent.
11. (2) Apollo Kitchens Property Unless otherwise agreed in writing all tools, equipment or material of every description furnished to Customer by Purchaser or specifically paid for by Purchaser, and any replacement thereof, or any materials affixed or attached thereto, shall be and remain the property of Purchaser. Such property and where practical each individual item thereof, shall be plainly marked or otherwise adequately identified by Customer as “Property of Apollo Kitchens” and shall be safely stored separate and apart from Customer’s property. Customer shall not substitute any property for property and shall not use such property except in filing Orders. Such property while in Customer’s custody or control shall be held at Customer’s risk, shall be kept insured by Customer at Customer’s expense in an amount equal to the replacement cost with loss payable to Purchaser and shall be subject to removal at Purchaser’s written request, in which event Customer shall prepare such property for shipment and shall redeliver to Purchaser in the same condition as originally received by Customer with reasonable wear and tear expected.
12. Delivery Each package shall be numbered and labelled with the Purchaser’s Purchase Order number, contents and weight and shall be accompanied by an itemised packing slip and shall be properly packed for consignment. No charges will be allowed for packing, crating, freight, express or cartage unless specified on the Purchase Order. If any goods are not delivered within the time specified on the Order or within a reasonable time if no time is specified, the Purchaser may refuse to accept such goods and may cancel all or part of the Order. The Customer assumes liability for any damage (including loss of profits) arising from failure to meet the delivery date (if any) stated on the reverse side hereof.
13. Cancellation Notwithstanding anything herein or any right or remedies available to the Purchaser under any other provision of these terms and conditions or any other law, including the Australian Consumer Law, the Purchaser reserves the right to cancel the Order in part or in whole, for failure of the Customer to meet delivery requirements or for faulty workmanship.
14. Construction The contract between the Customer and the Purchaser shall be governed and construed according to the Laws of New South Wales and the Purchaser agrees to submit to the jurisdiction of the courts located in the Capital City of New South Wales.
15. Liability and indemnity
15. (1) No exclusion or limitation To the extent that Purchaser acquires goods from Customer as a Consumer, or acquires goods from Customer that are ultimately supplied to a Consumer (whether by Purchaser or by a third party), Purchaser may have certain rights and remedies (including, without limitation, consumer guarantee rights or rights to indemnity) that cannot be excluded, restricted or modified by agreement. Subject to sub-clause 15.(2) below, nothing in this sub-clause 15.(1) or any of these terms operates to modify the application of any implied condition or warranty, provision or remedy (including a right to indemnity) implied or conferred to the benefit of the Purchaser, or the imposition of any liability on the Customer, whether implied or conferred by statute (including under the Australian Consumer Law), custom, or the general law.
15. (2) Indemnity Customer must indemnify Purchaser on demand against all expenses, losses, damages and costs (on a solicitor and own client basis and whether incurred by or awarded against Purchaser) that Purchaser may sustain or incur as a result of or in connection with its acquisition and / or re-supply of goods acquired under any Purchase Order arising from or attributable to:
(a) any breach, performance or non-performance of these terms by Customer, including, but not limited to, a breach in respect of which Purchaser exercises an express right to terminate any Agreement between the Purchaser and Customer governed by these terms and conditions;
(b) any breach of any law by Customer, whether arising under statute, the common law or general law (for negligence or otherwise), or on any other basis in law or equity; or
(c) any failure by Customer to comply with its obligations under the consumer guarantees regime under Parts 3-2 and 5-4 of the Australian Consumer Law.
16. Privacy The ownership of Confidential Information, including any Intellectual Property Rights, shall vest in the Purchaser on creation. The Customer has no right, title or interest in Confidential Information except as specified in this clause. The Customer must not use, access, modify or disclose Confidential Information to any person except to its Personnel on a need to know basis to perform the Contract. The Customer must comply with all applicable Laws in relation to Confidential Information which is Personal Information, and must provide reasonable assistance to the Purchaser on request to enable the Purchaser to comply with Laws, policies and standards applicable to the Purchaser in relation to Confidential Information including (without limitation) identifying, labelling, searching, reporting, copying, retrieving and modifying Confidential Information in relation to Personal Information, public records, right to information and information standards.