Cadbury Conditions of Purchase
All Goods and/or Services are purchased by Cadbury subject to the following conditions which shall prevail over all other terms and conditions, unless a separate agreement in writing has been specifically agreed between the parties and any conditions to the contrary contained herein are expressly excluded.
1. Supply of goods and services
The Supplier must supply the Goods and/or Services to Cadbury in accordance with the Agreement.
2. Price for goods and services
2.1 Cadbury agrees to pay the Price for the Goods and /or Services.
2.2 The Price excludes GST, but includes all packaging, transport, customs duty (and any other duties, taxes or levies), insurance, loading, unloading and storage costs, up to the point of delivery.
3. Risk and title in Goods and Services
Risk in the Goods passes to Cadbury upon delivery of the Goods. Title in the Goods passes to Cadbury upon delivery or upon payment by Cadbury for the Goods, whichever occurs first. Delivery occurs when Cadbury signs a delivery receipt.
4. Conditions as to quality of Goods and Services4.1 The Supplier warrants that the Goods and Services:
(a) comply with all Specifications;
(b) do not infringe any right of any third party (including, without limitation, any intellectual property right), or applicable law, statute, regulation, code or rule;
(c) are fit for the purpose which the Supplier has been notified Cadbury intends to use them or for which they are commonly used;
(d) correspond with any description or sample the Supplier has previously provided to Cadbury; and
(e) comply with all relevant legislation.
4.2 The Supplier warrants that the Goods:
(a) are not defective and are of merchantable quality;
(b) where the Goods are intended for human consumption (or are an ingredient to be used in the manufacture of goods intended for human consumption):
(i) are fit for human consumption;
(ii) comply in all respects with all relevant provisions of all applicable food, health, trade practices, weights and measures and other legislation in Australia;
(iii) are not adulterated or contaminated in any way; and
(iv) the Goods do not comprise and are not derived from any genetically modified organisms or products, except to the extent agreed by Cadbury.
4.3 The Supplier warrants that the Services will:
(a) be performed by appropriately qualified and trained personnel;
(b) be performed with due care and skill; and
(c) comply with all directives and orders given by Cadbury representatives or procedures communicated by Cadbury to the Supplier.
5. Goods and Services which fail to meet standardsWithout limiting any other remedy Cadbury may have, if the Goods delivered or Services performed do not meet or exceed the standards required in the Agreement, do not meet or exceed the Specifications or are otherwise unacceptable to Cadbury upon delivery and in relation to Goods, at any time during their intended useful life (the
Non-conforming Goods and Services), Cadbury will not be required to pay for those Non-conforming Goods and/or Services. The Supplier must, at the Supplier’s cost, if Cadbury requires the Supplier to do so, promptly remove any Non-conforming Goods from Cadbury’s premises. The Supplier must at Cadbury’s election either:
(a) promptly replace the Non‑conforming Goods and/or Services with Goods and/or Services which do meet the relevant standards or Specifications and which are acceptable to Cadbury; or
(b) refund to Cadbury all money paid in respect of the Non-conforming Goods and/or Services.
6. Intellectual property
6.1 Nothing in the Agreement affects ownership of any intellectual property rights of the Supplier existing as at the date of the Agreement or subsequently arising in relation to the Goods and Services other than as specified in
clauses 6.2 and 6.3.
6.2 If any of the Goods have been specifically designed for or requested by Cadbury (the “
Custom Works”) all intellectual property in, and relating to, the Custom Works will be Cadbury’s property.
6.3 All intellectual property created by or on behalf of the Supplier in the course of providing the Services to Cadbury (“
Contract Intellectual Property”) will be Cadbury’s property.
6.4 The Supplier must assign all right to the intellectual property rights under
clauses 6.2 and 6.3 to Cadbury and reserve all Cadbury’s intellectual property rights in any agreement which the Supplier enters into with any third party in relation to any Custom Works and/or Contract Intellectual Property.
7. Confidentiality7.1 The parties must keep all Confidential Information secret and must not use that Confidential Information except as necessary for the purposes of the Agreement. Each party must store all Confidential Information in a way that minimises the risk of unauthorised access. In this
clause 7, “Confidential Information” with respect to a party (a “
Receiving Party”) means:
(a) the existence and terms of the Agreement; and
(b) any technical, scientific, commercial, financial or other information of or about the other party (the “Discloser”) or any of its products, of which the Receiving Party becomes aware in connection with the Agreement and all information about the Discloser’s business and business processes.
7.2 The parties’ obligations under this clause 7 do not apply to any information which:
(a) is in the public domain as at the date of the Agreement or which subsequently comes into the public domain (other than because of a breach of any obligation of confidence owned to the Discloser); or
(b) the Receiving Party can demonstrate by evidence in writing either:
(i) was in the possession of the Receiving Party’s as at the date of the Agreement; or
(ii) subsequently comes into the possession of the Receiving Party through a third party who does not owe any obligation of confidence to the Discloser in respect of that information; or
(iii) the Receiving Party is required by law to disclose.
7.3 Where the Supplier is the Receiving Party, the Supplier must promptly return all Confidential Information to Cadbury or destroy it if Cadbury asks the Supplier to do so.
8. TerminationThe Agreement may be terminated immediately by Cadbury if the Supplier breaches the Agreement, or at any other time by Cadbury by providing 2 weeks notice in writing to the Supplier. A fair and reasonable price will be paid for all agreed work in progress at the time of cancellation and subsequently received by Cadbury. Cadbury will not be liable for any loss to the Supplier, including consequential loss.
9. Terms of payment9.1 The Supplier must submit an invoice for all Goods and Services provided to Cadbury in a form acceptable to Cadbury. The invoice must specify the Purchase Order number to which the invoice relates. Cadbury will not be required to pay any invoice that does not specify a Purchase Order number or specifies an invalid Purchase Order number.
The Supplier must provide Cadbury with a valid tax invoice for any taxable supply it makes to Cadbury under the Agreement. Cadbury will not be required to pay the Supplier until the Supplier has provided a valid tax invoice to Cadbury.
9.2 Cadbury will pay the invoiced amount by the end of the final day of the calendar month immediately following the month of invoice, provided that the invoice is received no later than the 10th day of the calendar month.
9.3 All invoices must be sent to Accounts Department, Cadbury Pty Ltd, 636 St Kilda Road, Melbourne, Victoria, 3004.
10. Insurance
The Supplier must obtain product liability insurance of not less than $20 million per event, public liability insurance of not less than $20 million per event and, if Services are being provided, professional indemnity insurance of not less than $20 million per event.
11. Indemnity11.1 Without limiting any of Cadbury’s other legal rights, the Supplier hereby indemnifies Cadbury and its related bodies corporate (as defined in the Corporations Act 2001) against any loss, damage, claim, action or expense (including, without limitation, legal expense) which Cadbury or any of its related bodies corporate suffer in connection with any of the following:
(a) a breach of the Agreement by the Supplier;
(b) any warranty given by the Supplier under the Agreement being incorrect or misleading in any way;
(c) any product liability claim or product recall relating to the Goods;
(d) any negligent act or failure to act by the Supplier or any of the Supplier’s employees, agents, officers or contractors; and
(e) any act which is not authorised by the Agreement.
12. GST12.1 Where the Agreement requires either party to pay for, reimburse or contribute to any expense, loss or outgoing (“reimbursable expense”) suffered or incurred by the other party, the amount required to be paid, reimbursed or contributed by the first party will be the sum of:
(a) the amount of the reimbursable expense net of input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense (“net amount”); and
(b) if the other party's recovery from the first party is a taxable supply, any GST payable in respect of that supply.
13. Miscellaneous13.1 Cadbury may transfer, assign, novate or otherwise encumber or deal with (“dispose of”) the Agreement, or any right or obligation under it to any wholly owned subsidiary of Cadbury plc without the consent of the Supplier. A party must not otherwise dispose of the Agreement or any right or obligation under it or subcontract any of its obligations under the Agreement, without the prior written consent of the other party. Supplier will not as a result of any sub-contracting arrangement be relieved from the performance of any obligation under the Agreement and will be responsible and liable for all acts and omissions of a sub-contractor
13.2 The Agreement is governed by the laws of Victoria. The Supplier irrevocably and unconditionally submits to the jurisdiction of the courts of Victoria for determining any dispute.
13.3 Cadbury has published and adopted both a Human Rights and Ethical Trading Policy and an Environmental Policy. These are available on website www.cadbury.com. Cadbury integrates these standards and commitments into the way it runs its business globally to address such concerns. The Supplier is expected to review and must adhere to these policies. The Supplier is required to achieve high ethical and environmental standards and social responsibility in its business practices and production supplies.
Agreement means these terms and conditions and the Purchase Order.
Consideration, GST, Input tax credit, Supply, Tax Invoice, and
Taxable Supply have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999.
Cadbury means Cadbury Pty Ltd (ABN 78 004 551 473).
Goods and Services means the goods and services specified in the Purchase Order to be supplied by the Supplier to Cadbury.
Price means the price specified in the Purchase Order.
Purchase Order means the purchase order provided by Cadbury to the Supplier which is subject to these terms and conditions.
Specifications means all specifications provided by Cadbury to the Supplier in relation to the Goods or Services including those provided prior to the date of the Agreement.
Supplier means the supplier of the Goods and Services named in the Purchase Order.