CONDITIONS OF SALE
This document is published on the vka.au website for general information. It is not legal advice. AFF-VK Aromatics Int Australia Pty Ltd is the contracting party for the supply of goods in Australia and New Zealand. The parent company, Advanced Flavors & Fragrances Pte. Ltd. (Singapore), retains ownership of the VKA brand and group intellectual property.
These Conditions of Sale govern the supply of goods by AFF-VK Aromatics Int Australia Pty Ltd to its customers. They apply whenever the Company sells, and they take priority over any terms the Customer may seek to impose.
1. Definitions and Interpretation
1.1In these Conditions, the following words have the following meanings:
- "Company", "we", "us" or "our" means AFF-VK Aromatics Int Australia Pty Ltd, an Australian company at Unit 1, 19 Harvest Court, Southport QLD 4215, Australia, and its successors and assigns.
- "Group" means the Company, its parent Advanced Flavors & Fragrances Pte. Ltd. (Singapore) and each of their subsidiaries and affiliates from time to time.
- "Customer", "you" or "your" means the person, firm or company that purchases or agrees to purchase the Goods from the Company.
- "Goods" means the flavours, fragrances, ingredients, compounds, samples, raw materials, products and any related items the Company agrees to supply under the Contract.
- "Specification" means the Company's technical specification, formulation parameters, certificate of analysis or data sheet applicable to the Goods at the time of dispatch.
- "Order" means the Customer's order for the Goods, in any form.
- "Confirmation" means the Company's written acceptance of an Order, including by order acknowledgement, invoice or dispatch of the Goods.
- "Contract" means the contract between the Company and the Customer for the sale and purchase of the Goods, formed in accordance with clause 2 and incorporating these Conditions.
- "Intellectual Property" means all formulae, recipes, compositions, know-how, processes, methods, samples, technical data, trade secrets, patents, trade marks, designs, copyright and all other intellectual property rights, whether registered or not.
- "ACL" means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
- "GST" has the meaning given to it in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
1.2A reference to a statute or statutory provision is a reference to it as amended or re-enacted. Headings do not affect interpretation. The singular includes the plural and vice versa.
2. Basis of Contract
2.1These Conditions apply to and are incorporated into every Contract for the sale of Goods by the Company, and prevail over and exclude any other terms, including any terms the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2A quotation issued by the Company is an invitation to treat only and does not constitute an offer. A quotation is valid for thirty (30) days from its date unless stated otherwise, and may be withdrawn or revised by the Company at any time before a Contract is formed.
2.3An Order constitutes an offer by the Customer to purchase the Goods on these Conditions. No Order is accepted, and no Contract is formed, until the Company issues a Confirmation. The Company is not obliged to accept any Order.
2.4The Customer is responsible for ensuring that the terms of its Order are complete and accurate. Any samples, drawings, descriptions or marketing material are issued for illustration only and form no part of the Contract.
2.5No variation to these Conditions or to a Contract has effect unless agreed in writing and signed by a director or other duly authorised representative of the Company. No employee or agent of the Company has authority to vary these Conditions orally.
3. Prices
3.1The price of the Goods is the price stated in the Company's Confirmation or, if none is stated, the price set out in the Company's published price list current at the date of dispatch.
3.2Prices are exclusive of GST and any other applicable taxes, duties, levies, packaging, insurance and carriage, which the Customer pays in addition at the prevailing rate.
3.3The Company may, by notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods to the Company that is due to factors beyond the Company's reasonable control. These factors include, without limitation, increases in the cost of raw materials, aroma chemicals, labour or energy, fluctuations in currency exchange rates, increases in freight, insurance or shipping costs, disruption to supply routes or supply chains, regulatory or tax changes, and any change to the quantity or specification requested by the Customer.
3.4Where the Contract provides for multiple, staged or future deliveries, the price applicable to deliveries not yet made is subject to revision by the Company on reasonable written notice. The Customer may, within seven (7) days of such notice, cancel the undelivered balance, failing which the revised price applies.
3.5The Company may require a minimum order quantity or minimum order value, and may apply surcharges for orders below those thresholds.
4. Payment
4.1Unless agreed otherwise in writing, the Customer pays each invoice in full and in cleared funds within thirty (30) days of the date of invoice. Time of payment is of the essence.
4.2The Customer pays all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding, except as required by law.
4.3If the Customer fails to pay any amount when due, the Company may charge interest on the overdue amount, accruing daily from the due date until payment both before and after judgment, at a rate equal to the lesser of 1.5% per month and the maximum rate permitted by law, together with the Company's reasonable costs of recovery.
4.4Without limiting its other rights, if the Customer fails to pay on time or the Company has reasonable concern about the Customer's solvency or creditworthiness, the Company may suspend further deliveries, withhold Goods, require payment in advance or security, or treat all sums owing by the Customer as immediately due and payable.
4.5The Company may set a credit limit for the Customer and may vary or withdraw it at any time.
4.6Payment by the Customer does not constitute acceptance of the Goods, nor any admission that the Company has performed its obligations, and does not waive any of the Company's rights. Conversely, payment by the Company under its Conditions of Purchase does not waive any of its rights as Buyer.
5. Delivery
5.1Unless agreed otherwise in writing, delivery takes place when the Company makes the Goods available for collection at the Company's premises (Ex Works, Incoterms 2020). Where the Company arranges carriage, it does so as agent for and at the cost and risk of the Customer.
5.2Any date quoted for delivery is an estimate only. Time of delivery is not of the essence, and the Company is not liable for any delay in delivery howsoever caused.
5.3The Company may deliver the Goods by instalments, and each instalment is a separate Contract. Failure or defect in one instalment does not entitle the Customer to cancel or reject any other instalment.
5.4The Customer inspects the Goods on delivery. The Customer notifies the Company in writing of any shortage, or of damage or loss apparent on reasonable inspection, within seven (7) days of delivery, failing which the Goods are deemed accepted and delivered in full and in good condition.
5.5If the Customer fails to take delivery or to give adequate delivery instructions, the Company may store the Goods at the Customer's risk and cost, or resell or otherwise dispose of them and charge the Customer for any resulting shortfall.
5.6The Company may fulfil an Order in a quantity within plus or minus ten percent (10%) of the quantity ordered, and the Customer pays for the quantity actually delivered. Delivery within that tolerance is treated as delivery in full.
6. Risk and Title
6.1Risk in the Goods passes to the Customer on delivery in accordance with clause 5.1.
6.2Notwithstanding delivery and the passing of risk, legal and beneficial title in the Goods does not pass to the Customer until the Company has received in full and in cleared funds all amounts owing by the Customer to the Company on any account, whether in respect of the Goods or otherwise.
6.3Until title passes, the Customer holds the Goods as the Company's fiduciary bailee, stores the Goods separately and identifiably as the Company's property, does not pledge or charge them, keeps them insured, and on request returns them to the Company.
6.4Until title passes, the Company may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, may enter any premises of the Customer or of a third party where the Goods are stored in order to recover them. The Customer grants the Company an irrevocable licence to do so.
6.5The Company may bring an action for the price even though title in the Goods has not passed.
7. Quality, Warranty and Claims
7.1The Company warrants that, at the time of delivery, the Goods conform in all material respects to the applicable Specification and are of satisfactory quality.
7.2The warranty in clause 7.1 applies for the shelf life of the Goods stated in the Specification, and only where the Goods have been stored, handled, transported and used strictly in accordance with the Company's storage and handling instructions and the applicable Specification.
7.3The warranty does not apply where the defect arises from fair wear and tear, the Customer's failure to follow storage, handling or usage instructions, dilution, blending, processing, contamination or alteration of the Goods after delivery, use of the Goods outside their intended application or recommended dosage, or any act or omission of the Customer or a third party.
7.4Except as expressly stated in these Conditions, and to the fullest extent permitted by law, all terms, conditions and warranties implied by statute, common law or otherwise, including any implied terms as to fitness for a particular purpose or correspondence with description, are excluded from the Contract.
7.5The Customer examines the Goods for conformity with the Specification and any agreed sample within ten (10) working days of receipt. Any claim in respect of a defect, damage or shortage that is apparent on reasonable inspection is made in writing and received by the Company within those ten (10) working days. Any claim in respect of a defect that could not have been discovered on reasonable inspection within that period is made in writing and received by the Company within ten (10) working days of discovery, and in any event no later than ninety (90) days after receipt of the Goods. Apparent transport damage is in addition notified to the carrier and the Company on delivery.
7.6A claim is null and void, and the warranty in clause 7.1 ceases to apply, once the affected Goods have been resold by the Customer or have undergone any processing, blending, dilution or treatment of any kind. Failure by the Customer to give notice of a claim within the applicable period in clause 7.5 is an absolute and unconditional waiver of that claim. The Customer is given a reasonable opportunity to inspect the Goods, and does not use, dispose of or return the affected Goods without the Company's written agreement.
7.7Where a claim under clause 7.1 is duly established within the applicable period, the Company's sole obligation, and the Customer's exclusive remedy, is, at the Company's option, to replace or repair the non-conforming Goods at its own cost, or to refund the price paid for them. The Company has no further liability in respect of such Goods.
8. Australian Consumer Law
8.1Nothing in these Conditions excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the Customer by the Australian Consumer Law, or by any other law, that cannot lawfully be excluded, restricted or modified. To the extent these Conditions are inconsistent with any such non-excludable provision, those provisions prevail and these Conditions are read down to the minimum extent necessary.
8.2Where the Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the Company's liability for any failure to comply with a non-excludable consumer guarantee under the ACL is, to the extent the ACL permits such a limitation, limited at the Company's option to:
- the replacement of the Goods, or the supply of equivalent Goods;
- the repair of the Goods;
- the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
- the payment of the cost of having the Goods repaired.
8.3The Goods are sold for use as ingredients by professional and industrial buyers and are not of a kind ordinarily acquired for personal, domestic or household use.
9. Customer Responsibilities and Regulatory Compliance
9.1The Goods are intended for use as ingredients by professional and industrial buyers. The Customer is solely responsible for satisfying itself that the Goods are suitable and safe for the Customer's intended application and end use.
9.2The Customer is solely responsible for ensuring that its finished products, and the manufacture, labelling, packaging, marketing, sale and use of those finished products, comply with all laws, regulations, standards and approvals applicable in every jurisdiction in which the finished products are manufactured, distributed or sold. This includes, without limitation, the Australia New Zealand Food Standards Code administered by Food Standards Australia New Zealand (FSANZ), food safety, food additive approval, maximum usage levels, allergen declaration, novel food, labelling and advertising requirements.
9.3Any regulatory, allergen, nutritional or technical information the Company provides is given in good faith and to the best of the Company's knowledge at the date of issue. It does not relieve the Customer of its obligation under clause 9.2 to verify compliance for its own products and markets, and the Company gives no warranty that the Goods are approved or suitable for use in any particular jurisdiction or application.
9.4The Customer determines and controls the dosage and inclusion level of the Goods in its finished products. The Company is not responsible for the Customer's formulation choices.
10. Intellectual Property and Confidentiality
10.1All Intellectual Property in or relating to the Goods, including their formulae, composition, identity and proportion of ingredients, processes and know-how, is and remains the exclusive property of the Company or other members of the Group, including Advanced Flavors & Fragrances Pte. Ltd. as parent of the Group. The sale of Goods conveys no licence or right in respect of that Intellectual Property other than the right to use the Goods, as supplied, for their intended application.
10.2VKA is a registered trademark of Advanced Flavors & Fragrances Pte. Ltd. and is used by the Company in Australia under licence within the Group. Nothing in the Contract grants the Customer any licence or right in the VKA trademark or any other trademark of the Group.
10.3The Customer shall not, and shall not permit or assist any third party to, directly or indirectly:
- analyse, deconstruct, decompile, reverse engineer or otherwise attempt to determine or replicate the formula, composition, identity, concentration or proportion of any ingredient of the Goods;
- submit any of the Goods to a third party for any such analysis;
- use the Goods, or any information derived from them, to develop, manufacture, source or have made any product that is the same as, similar to, or competitive with the Goods; or
- rebrand, relabel, repackage or pass off the Goods, or any reconstruction of them, as the Customer's own or as a third party's product.
10.4The Customer keeps confidential all formulae, Specifications, samples, pricing, technical information and other non-public information of the Company or any other member of the Group, uses it only for the purpose of the Contract, and does not disclose it to any third party without the Company's prior written consent.
10.5The obligations in this clause 10 survive the completion or termination of the Contract and continue without limit in time. The Customer acknowledges that damages alone may not be an adequate remedy for breach of this clause, and that the Company and any other affected member of the Group are entitled to seek injunctive and other equitable relief.
11. Limitation of Liability
11.1Nothing in these Conditions excludes or limits the Company's liability for death or personal injury caused by its negligence, for fraud or fraudulent misrepresentation, for any non-excludable guarantee under the Australian Consumer Law (subject to clause 8), or for any other liability that cannot lawfully be excluded or limited.
11.2Subject to clause 11.1, the Company is not liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profit, loss of revenue, loss of business, loss of anticipated savings, loss of or damage to goodwill or reputation, product recall costs, wasted expenditure, or any indirect, special or consequential loss, in each case howsoever arising.
11.3Subject to clause 11.1, the Company's total aggregate liability arising out of or in connection with the Contract, whether in contract, tort, breach of statutory duty or otherwise, is limited to the price paid by the Customer for the Goods giving rise to the claim.
11.4Any claim against the Company arising out of or in connection with the Contract must be commenced within twelve (12) months of the date of delivery of the relevant Goods, after which the claim is barred to the extent permitted by law.
12. Indemnity
12.1The Customer indemnifies the Company, and keeps the Company indemnified, against all claims, liabilities, losses, damages, costs and expenses (including reasonable legal costs) that the Company suffers or incurs arising out of or in connection with the Customer's use, application, processing, on-sale, labelling or marketing of the Goods or its finished products, the Customer's breach of clause 9 or clause 10, or any negligent or wrongful act or omission of the Customer.
13. Force Majeure
13.1The Company is not in breach of the Contract, nor liable for any delay or failure to perform, where the delay or failure results from any cause beyond its reasonable control. Such causes include, without limitation, acts of God, fire, flood, storm, cyclone, bushfire, epidemic or pandemic, war, terrorism, civil disturbance, government action, embargo or sanctions, strikes or labour disputes, failure or shortage of raw materials, aroma chemicals or utilities, and disruption to shipping, transport routes or supply chains.
13.2While such an event continues, the Company may suspend performance, allocate available Goods among its customers on a basis it considers fair, or, if the event continues for more than sixty (60) days, terminate the affected Contract by notice without liability.
14. Compliance, Sanctions and Export Control
14.1Each party complies with all applicable laws relating to anti-bribery and anti-corruption, anti-money laundering, organised crime, modern slavery, and trade sanctions and export controls.
14.2The Customer acknowledges that the Goods may be subject to export control and trade sanctions laws and regulations, including those of Australia, the United States, the European Union and its member states, the United Kingdom and Switzerland (the "Sanctions and Export Rules"). The Customer is solely responsible for its own compliance with the Sanctions and Export Rules, including obtaining any required licences or governmental approvals.
14.3The Customer does not, directly or indirectly, sell, supply, transfer, export, re-export or otherwise deal in the Goods to or for use in connection with any country, destination, entity or person where to do so would breach the Sanctions and Export Rules, and does nothing that would cause the Company to be in breach of them.
14.4The Customer indemnifies the Company against any fine, penalty, loss, liability or cost the Company incurs as a result of the Customer's breach of this clause 14. The Company may refuse to accept or perform, or may cancel, any Order at its sole discretion and without liability if it believes the Customer has breached or will breach this clause.
15. Termination and Suspension
15.1Without limiting its other rights, the Company may suspend performance or terminate any Contract with immediate effect by written notice if the Customer commits a material breach and (where capable of remedy) fails to remedy it within fourteen (14) days of notice, fails to pay any amount when due, or becomes insolvent, is unable to pay its debts, has an administrator, receiver, controller or liquidator appointed, enters into a scheme of arrangement or composition with creditors, or ceases or threatens to cease to carry on business.
15.2Termination does not affect any rights, remedies, obligations or liabilities that have accrued as at the date of termination, including the right to claim damages, nor any provision intended to survive termination.
16. Privacy
16.1Each party complies with the Privacy Act 1988 (Cth) and the Australian Privacy Principles, and any other applicable privacy or data protection law, in respect of any personal information exchanged under or in connection with the Contract, and uses that personal information only for the purposes of performing the Contract. The Company's handling of personal information is further described in its Privacy Policy published on vka.au.
17. General
17.1The Company may assign, transfer, novate or subcontract any of its rights or obligations under the Contract, including to any other member of the Group. The Customer may not do so without the Company's prior written consent.
17.2Each Contract constitutes the entire agreement between the parties in respect of its subject matter and supersedes all prior arrangements. The Customer acknowledges that it has not relied on any statement or representation not set out in the Contract. Nothing in this clause limits liability for fraud.
17.3No failure or delay by the Company in exercising any right is a waiver of that right, and no single or partial exercise prevents any further exercise.
17.4If any provision of these Conditions is found to be invalid or unenforceable, it is severed and the remaining provisions continue in force. The parties negotiate in good faith a replacement provision that achieves, as far as lawful, the intended commercial result.
17.5A person who is not a party to the Contract has no right to enforce any of its terms, except that any member of the Group may enforce clause 10 (Intellectual Property and Confidentiality) in respect of its own Intellectual Property and confidential information.
17.6Notices under the Contract are in writing and sent to the recipient's registered office or principal place of business, or to such address or email as notified.
18. Governing Law and Jurisdiction
18.1The Contract and any dispute or claim arising out of or in connection with it, including any non-contractual dispute or claim, is governed by and construed in accordance with the laws of the State of Queensland and the Commonwealth of Australia, excluding the United Nations Convention on Contracts for the International Sale of Goods.
18.2Each party submits to the non-exclusive jurisdiction of the courts of Queensland and the courts competent to hear appeals from them. This does not limit the Company's right to bring proceedings against the Customer in the courts of the place of the Customer's registered office, or in any other jurisdiction where the Customer carries on business or holds assets.
18.3Nothing in this clause prevents the Company, or any other member of the Group, from applying to any court of competent jurisdiction for interim or injunctive relief, in particular to restrain any actual or threatened breach of clause 10 (Intellectual Property and Confidentiality).