Terms & Conditions

Nespresso Compatible Capsule Contract Packing

  1.  DEFINITIONS
    1.  
      1. Change of Control occurs if a person who controls any body corporate ceases to do so or if another person acquired control of it;
      2. Confidential Information means the confidential, proprietary and commercially-sensitive information of the Supplier and its officers, directors, employees, contractors and agents (irrespective of the form and manner in which the information is disclosed, or the time of disclosure) including information which:
        1. is identified by the Supplier as confidential or ought to have been known by the Buyer to be confidential;
        2. relates to the business affairs and practices of the Supplier and its affiliates including (without limitation) financial information, business opportunities, business plans, business processes and methodologies, product innovation and product ranges, information relating to clients and suppliers;
        3. the terms and conditions of the Quotation/Purchase Order; and (iv) any specifications relating to the Products, but does not include the information which is, or comes into, the public domain other than by a breach of these Terms, or which is independently known to the Buyer as evidenced by its written records;
      3. Dollar and $ means the legal currency of Australia unless specified otherwise;
      4. EXW means Ex Works as defined in Incoterms 2010 (as amended from time to time);
      5. Insolvency Event means where:
        1. the Buyer defaults under Terms;
        2. the Buyer commits an act of bankruptcy;
        3. a receiver is appointed to the Buyer;
        4. the Buyer goes into liquidation, administration or some other form of insolvency administration whether formal or informal;
        5. the Buyer ceases to carry on business; or
        6. the Buyer enters into a scheme or compromises with its creditors;
      6. Products means the Nespresso® compatible coffee capsules to be supplied to the Buyer from the Supplier, meeting the specifications set out in the Quotation/Purchase Order, and includes any goods described on any quotation, invoice, purchase order or any other documentation;
      7. Quotation/Purchase Order means the Quotation/Purchase Order set out in the customer's invoice and/or Purchase Order, which incorporates the Terms and Conditions (Terms) set out in this document.
    2.  Unless defined in this document, capitalised terms used have the meaning given to them in the Quotation/Purchase Order.
  2.  APPLICABILITY OF TERMS AND CONDITIONS
    1.  Each Quotation/Purchase Order placed with the Supplier shall be governed by Terms.
  3.  SUPPLIER'S OBLIGATIONS
    1.  The Supplier agrees to supply the Products to the Buyer on the terms and conditions set out in this document.
  4.  BUYER'S OBLIGATIONS
    1.  The Buyer agrees to purchase the Products from the Supplier, pursuant to the terms set out in the Quotation/Purchase Order.
    2.  The Buyer must pay the Final Price for the Products as set out in the invoice and/or Purchase order, together with all applicable taxes.
    3.  The Buyer must ensure that all Product artwork and/or packaging contains an identifiable disclaimer, approved by the Supplier, that:
      1. Nespresso® is a registered trade mark of Societe des Produits Nestle S.A.; and
      2. Societe des Produits Nestle S.A. does not endorse or sponsor, and is not in any way associated or affiliated with, the Supplier, the Buyer, any other trade marks or brands affixed to the Product packaging or the owners of such marks.
  5.  PURCHASE ORDERS, PAYMENT AND PRICE LIST
    1.  All orders are subject to availability of stock and min/max quantities as the Supplier decides from time to time.
    2.  The Buyer acknowledge and agrees that the total quantity and/or volume of Products supplied by the Supplier may vary to that specified in the Quotation/Purchase Order by +/- 10%, to the extent that such variation is attributed to yield fluctuation, coffee shrinkage, production wastage, quality assurance testing and retention samples. The Buyer accepts any corresponding increase or decrease in the total price and volume of Products supplied under any relevant Quotation/Purchase Order and, if applicable, agrees to make payment in accordance with any adjusted tax invoice issued by the Buyer, pursuant to this clause 5.2.
    3.  The Supplier will provide the Buyer with a tax invoice for the Products supplied to the Buyer.
    4.  Unless otherwise agreed, prices exclude insurance, delivery, GST and all other applicable taxes. The Buyer is responsible for all duties, taxes, freight and clearance charges that may be levied on the Products.
    5.  Prices are subject to change if the Buyer does not execute the Quotation/Purchase Order within 7 days of the Quotation Date.
    6.  The Buyer must pay each invoice in full and without set-off, within the payment terms set out in the Quotation/Purchase Order.
    7.  If the Buyer fails to pay any outstanding amounts within 7 days of the relevant due date, then the Buyer will be in default of its payment obligations under Terms.
    8.  If the Buyer defaults in its payment obligations, the Supplier may charge the Buyer interest on any outstanding amount at the rate of 1.5% per day, from the date on which the default arose.
    9.  The Supplier may, in its sole discretion and without prejudice to its other rights and remedies, demand immediate payment of all amounts owing even if they are not currently due if the Supplier is concerned over the Buyer's ability to pay outstanding amounts or the Buyer is subject to an Insolvency Event.
  6.  PACKAGING AND ARTWORK
    1.  Product prices include standard Product packaging and printing options being up to 4 colours for inner cartons, 1 colour for outer cartons, printing on the external/outside area of the inner and outer cartons only and generic foil from the Supplier's standard colour range (no printing on foil).
    2.  Standard Product packaging is 10 capsules to an inner carton and 6 inner cartons to an outer carton
    3.  Custom packaging requirements may be agreed between the parties at an additional cost, as set out in the invoice and/or Purchase Order (if applicable).
    4.  All Product artwork supplied by the Buyer must conform to the Supplier's specifications. Additional costs may be incurred by the Buyer in respect of artwork that does not conform to the Supplier's specifications.
    5.  The Supplier takes no responsibility whatsoever for the content of any Product artwork supplied by the Buyer to the Supplier for the purpose of packaging the Products. The Buyer is responsible for ensuring that all Product artwork complies with applicable legal and regulatory requirements.
  7.  TERMINATION
    1.  Either party may terminate Terms immediately by notice to the other party if any of the following occurs in respect of the other party:
      1. an Insolvency Event occurs in respect of the other party; or
      2. the other party breaches an obligation in Terms and such breach cannot be remedied.
    2.  Termination under this clause 7 does not prejudice any claim which either party may have against the other at the time of termination.
  8.  FORCE MAJEURE
    1.  The Supplier shall not be liable for any default or delay in supplying the Products to the Buyer due to any act of God, war, power or equipment failure, terrorism, strike, lock-out, industrial action, fire, flood, storm, tempest or other events beyond the control of the Supplier. If the Supplier is unable to perform in whole or in part any obligation under the Quotation/Purchase Order, the Supplier shall be relieved of such obligation(s) to the extent and for the period that it is unable to perform and shall not be liable to the Buyer for such inability.
  9.  COLLECTION, RISK AND TITLE
    1.  The Products will be made available to the Buyer EXW Wetherill Park, Sydney, at the Supplier's nominated warehouse (Collection Point).
    2.  The Supplier will use its reasonable endeavours to make the Products available for collection by the Buyer (or its agent) at the Collection Point within 35 days of the Supplier receiving an executed Quotation/Purchase Order from the Buyer.
    3.  Risk of loss and damage to the Products passes from the Supplier to the Buyer when the Buyer, the Buyer's agent or a freight company (for the purposes of clause 9.4) collects the Products from the Collection Point. Title in the Products passes to the Buyer when the Supplier receives full payment for the Products.
    4.  If the Buyer requests delivery of the Products directly to its nominated delivery address, the Supplier may (at its sole discretion) elect to arrange such delivery on the Buyer's behalf, at the Buyer's cost. Notwithstanding any other provision in these Terms, the Buyer must pay for all freight costs associated with such delivery prior to the Products being collected from the Collection Point.
  10.  INTELLECTUAL PROPERTY
    1.  Notwithstanding any other provisions in these Terms, but subject to clause 12, the Buyer acknowledges and agrees that:
      1. the Supplier expressly excludes all liability to the Buyer and any other person in relation to any third party claims that the Products, the sale of the Products (including, without limitation, packaging claims that the Products are compatible with Nespresso® machines), infringe a third party's registered patents, design or other intellectual property rights (Intellectual Property Claims);
      2. the Supplier makes no express or implied representations to the Buyer regarding any legal rights to the design of, and the patents used in, the Products;
      3. the Supplier makes no express or implied representations to the Buyer that it has any legal right to use the Nespresso® brand, with both parties expressly acknowledge is the registered trade mark of Societe des Produits Nestle S.A. and is not affiliated with the Supplier; and
      4. it releases and discharges and indemnifies and undertakes to keep indemnified, defend and hold harmless, the Supplier and its representatives from, against and in respect of all claims (whatsoever and howsoever arising) which a third party may have, arising from or in connection with any Intellectual Property Claims.
    2.  Ownership of all intellectual property owned by and/or developed by the Supplier and/or any of its affiliates including (without limitation), all trade marks, brands, copyright, drawings, designs, formulae, patents, coffee roast profiles and blends, and other property and/or information remain with the Supplier and/or any of its affiliates. The Buyer shall immediately advise the Supplier of any breach or infringement of any of the Supplier's intellectual property rights by any third party.
  11.  CONSUMER GUARANTEES
    1.  If these Terms constitute a supply of goods or services to a consumer as defined in the Competition and Consumer Act 2010 (Cth) or the Australian Consumer Law (as amended), the Buyer may be entitled to statutory consumer guarantees.
    2.  Except to the extent permitted by law, nothing in these Terms is intended to exclude, restrict or modify those consumer guarantees in circumstances where applicable.
  12.  CONFORMITY
    1.  The Supplier warrants that the Products are compatible or use in the following Nespresso® machines which are released for sale in Australia on or before 6 May 2014:
      1. Citiz;
      2. Pixie;
      3. Essenza;
      4. Lattissima;
      5. U Milk;
      6. Inissia.
  13.  CLAIMS
    1.  The Buyer must lodge a written claim for damaged for defective Products with the Supplier within 7 days of the Products being available for collection at the Collection Point.
    2.  The parties agree that notwithstanding clause 13.1, Product supply is subject to an agreed 5% failure rate where defective Products constitute 5% or more of the total volume of Products in any Purchase Order (Agreed Failure Rate). The Buyer shall only make defective Product claims pursuant to clause 13.1 for defective Products in excess of the Agreed Failure Rate.
    3.  If the Buyer has not made any claim under clause 13.1 within the required period, the Buyer will be deemed to have accepted the Products and the Products will be deemed to be free of any defects which would have been apparent upon reasonable examination.
  14.  INDEMNITIES AND LIMITATION OF LIABILITY
    1.  If the Buyer makes a claim for damaged or defective Products pursuant to clause 13.1, and the Supplier reasonably determines that the Buyer's claim is valid, then the liability of the Supplier is limited, to the extent permitted by law and at the option of the Supplier, to:
      1. replacement of the damaged or defective Products; or
      2. a refund of the price paid by the Buyer for the damaged or defective Products.
    2.  The only conditions and warranties which are binding on the Supplier in respect of the state, quality or condition of the Products supplied to it by the Buyer, are those imposed and required to be binding by all applicable laws.
    3.  Subject to clause 14.1 and to the extent permitted by law, the Supplier will not be liable to the Buyer (whether in contract, tort or otherwise) for any consequential, special, incidental or indirect loss or damage, or any loss of revenue, profits, goodwill, data, opportunities or anticipated savings, whether caused by negligence, breach of contract or otherwise and whether or not the Supplier was, or should have been, aware of the possibility of such damage.
    4.  Subject to clause 14.1 and to the extent permitted by law, the Supplier's total liability for any claim related to, connected with or arising out of these Terms, shall not exceed the total value of all payments made by the Buyer to the Supplier pursuant to these Terms.
    5.  The Buyer shall indemnify and keep the Supplier indemnified against all reasonable damages, losses, costs and expenses suffered by the Supplier arising out of any breach by the Buyer of this Quotation/Purchase Order or arising out of the Buyer's use, possession or sale of the Products, or the use, possession or sale of the Products by someone with the Buyer's authority or permission to the extent not caused or contributed by the Supplier.
    6.  The Buyer shall indemnify the Supplier in relation to:
      1. any third party claims that the Supplier's use of the Buyer's intellectual property on the Products infringes a third party's intellectual property rights; and
      2. any third party claims arising in connection with the sale and/or distribution of the Products by the Buyer.
  15.  GST
    1.  For the purpose of this clause 15,
      1. GST means GST within the meaning of the GST Act;
      2. GST Act means A New System (Goods and Services Tax) Act 1999 (as amended); and
      3. expressions in italics in this clause 15 bear the same meaning as those expressions in the GST Act.
    2.  Unless GST is expressly included, the consideration expressed to be payable under these Terms does not include GST.
    3.  Regardless of any other provision of these Terms, if GST is imposed on any taxable supply made to the Buyer under or in accordance with these Terms, the amount which the Buyer must pay for the taxable supply increases by the amount of the GST.
    4.  A party's right to payment under these Terms for any taxable supply is subject to a valid and requisite tax invoice being delivered to the party liable to pay for the taxable supply.
    5.  If any laws are changed or new laws are introduced or courts or any relevant authority interpret laws differently which result in the Supplier having to pay a tax, duty, excise, withholding tax or levy (impost) on amounts received by the Buyer under these Terms, the Buyer must pay to the Supplier an additional amount so that after the Supplier has paid the impost its yield under these Terms is unchanged.
  16.  CONFIDENTIALITY
    1.  Each party acknowledges that the Confidential Information disclosed to it by the other party or its representatives (Disclosing Party) in connection with the Quotation/Purchase Order is proprietary, confidential or a trade secret of the Disclosing Party
    2.  Each party will:
      1. keep confidential the Confidential Information;
      2. use the Confidential Information for the sole purpose of performing its obligations under the Quotation/Purchase Order; and
      3. not disclose the Confidential Information to any person without the prior written consent of the Disclosing Party, unless such disclosure is required by law.
    3.  If required by the Disclosing Party, the other party must, and must ensure that their employees, officers, directors, agents and any other person nominated by the Disclosing Party enter into a confidentiality agreement in a form that is acceptable to the Disclosing Party.
    4.  Each party acknowledges that monetary damages alone would not be adequate compensation to the Disclosing Party if the other party breaches its confidentiality obligations.
    5.  In addition to any other remedy which may be available in law or equity, the Disclosing Party is entitled to seek injunctive relieve to prevent a breach of these Terms and to compel specific performance of these Terms.
  17.  INSURANCE
    1.  Both parties shall effect and maintain the following insurance policies with a reputable Australian insurer, and provide evidence of such policies upon request from the other party: (a) comprehensive general liability insurance (including products liability coverage) in the amount of $20 million per event for damage, injury and/or death to persons and $20 million per event for damage or injury to property; and (b) workers' compensation insurance as required by law