AUTOFRIGO Terms and Conditions of Purchase
In these terms and conditions:
“Conditions” means these terms and conditions of purchase including Quality Requirements, Specifications and conditions noted on the Purchase Order and any agreed written variations;
“Goods” means the goods described in the Purchase Order;
“Intellectual Property Rights” means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trademarks, trade secrets, knowhow, confidential information, patents, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.
“Loss” means any loss, liability, cost (including legal costs), expense, claims, suits, actions and damages (whether ordinary, special or consequential) incurred by the Purchaser including, but not limited to, rework, removal and reinstallation costs, field service costs and shipping relating to this Agreement;
“Purchaser” Auto Frigo specified on the Purchase Order;
“Purchase Order” means the Purchaser’s order overleaf or attached to these Conditions;
“Quality Requirements” means the quality requirements relating to the Goods or Services which have been supplied by the Purchaser to the Supplier;
“Services” means the services described in the Purchase Order;
“Specifications” means any technical or other specification relating to the Goods or Services which have been supplied by the Purchaser to the Supplier; and
“Supplier” means the person or body corporate that supplies the Goods or Services to the Purchaser.
2.1 Purchase Orders will be placed by the Purchaser with the Supplier from time to time. These Conditions shall apply to all Purchase Orders to the exclusion of any terms and conditions or any other materials which the Supplier may purport to apply or which are endorsed upon any correspondence or documents issued by the Supplier irrespective of their date of communication to the Purchaser.
2.2 The Purchase Order shall specify the quantities of the particular Goods or Services and delivery dates.
2.3 The Purchaser may, at any time, terminate a Purchase Order, in whole or in part, without cause, upon written notice to the Supplier. Following any such termination the Supplier shall, to the extent specified by the Purchaser, stop all work on the purchase order, and cause its suppliers and subcontractors to stop work. Charges for any such termination of the Purchase Order will be limited to actual non-recoverable costs incurred by the Supplier which the Supplier can demonstrate were properly incurred prior to the date of termination. In no event shall such reimbursement include anticipated profits for undelivered Goods or unperformed Services.
2.4 The Purchaser may, at any time, terminate a Purchase Order, in whole or in part and without penalty, upon written notice to the Supplier if the Supplier (i) fails to make delivery of the Goods or perform the Services within the time specified in the Purchase Order;
(ii) fails to replace defective Goods or Services in accordance with these Conditions; (iii) fails to perform any other term specified in these Conditions; or (iv) becomes insolvent, files or has filed against it a petition in bankruptcy, or makes an assignment for the benefit of creditors.
2.5 Acceptance of a Purchase Order by the Supplier constitutes acceptance of these Conditions.
3.1 The Supplier agrees to supply the Goods to the Purchaser in accordance with any Purchase Order placed by the Purchaser from time to time and must ensure that the Goods or Services comply with the Quality Requirements and Specifications.
3.2 The Supplier will notify the Purchaser at least 90 days before ceasing production of any Goods to enable the Purchaser to analyse potential needs for and to place a final purchase order for the Goods.
4.1 The price specified in the Purchase Order is firm, and is not subject to increase. The price is inclusive of all costs of packaging, delivery, duties and taxes payable in any country, and any other incidental charges. Unless otherwise expressly agreed in writing, all prices are F.O.B. destination collect in accordance with the Purchaser’s shipping instructions.
5.1 The Supplier agrees to develop a cost reduction plan and must use its best endeavours to continuously explore and realise cost saving opportunities. The Supplier will review its cost reduction plan with the Purchaser on a bi-annual basis. All cost savings must be passed to the Purchaser immediately via a price reduction to the affected Goods or Services.
6.1 The Goods must be received on the dates and at the destination specified in the Purchase Order. Time is of the essence. If the Supplier fails to meet any such delivery date, the Purchaser may, without limiting its other rights or remedies, cancel all or part of the Purchase Order. Title and risk in the Goods passes to the Purchaser on delivery.
6.2 Notwithstanding any prior inspections or payments, all Goods shall be subject to: (i) final inspection which may include measurement, testing or examination; and (ii) acceptance at the Purchaser’s facility within a reasonable time after the receipt of the Goods.
6.3 The Purchaser’s acceptance does not waive rights. If the Purchaser accepts any Goods, this does not extinguish any of the Purchaser’s rights if the Goods do not comply with these Conditions.
6.4 The Purchaser may reject any Goods which do not comply strictly with these Conditions. Once the Goods are rejected, the Purchaser may require: (i) the Supplier to refund any payment within 7 days; or (ii) replacement of the Goods within 24 hours at the Supplier’s cost. Title and risk in the rejected Goods immediately re-vests in the Supplier. The Supplier is liable for all Loss incurred by the Purchaser due to the rejection of the Goods. The Supplier must, at its cost, remove the rejected Goods any of the Purchaser’s intellectual property or any other distinguishing features such as name or logos.
7.1 Payment for Goods or Services supplied by the Supplier to the Purchaser will be tendered 7days from receipt of invoice (rendered in accordance with clause 7.2) and acceptance of the Goods unless otherwise agreed to in writing between the Parties. Payment of the invoices does not constitute acceptance of the Goods and shall be subject to adjustment for errors, shortages or defects in the Goods, or any other failure of the Supplier to meet the requirements of the Purchase Order.
7.2 Invoices must contain the following information: purchase order number, item number, and description of Goods or Services, sizes, quantities, weight, unit prices, value added taxes payable and extended totals.
8.1 The Supplier shall have its manufacturing quality system certified to one of the international specifications nominated by the Purchaser by an independent and qualified third party.
8.2 The Purchaser may perform periodic quality audits and the Supplier shall cooperate as required in the inspection and testing of Goods, components, equipment and quality systems.
8.3 Without limiting any other remedies available to the Purchaser, the Supplier will be charged the Purchaser’s reasonable actual costs incurred as the result of the provision of defective Goods.
8.4 The Supplier may outsource elements of production to third parties, provided that the Supplier retains responsibility for the quality of the final Goods, the ability to trace the source of material and product numbers is maintained, and the Supplier obtains written approval from the Purchaser prior to outsourcing or substituting third party producers.
8.5 The Supplier must inform the Purchaser of any proposed changes to processes or materials as they relate to the Goods or Services and obtain written approval from the Purchaser to implement the proposed changes.
9.1 The Supplier shall make spare parts available for 10 years after the last delivery date of any Goods.
10.1 The Supplier agrees to meet with the Purchaser’s management on a periodic basis to review delivery performance, quality issues, and continuous improvement activities and cost reduction strategies.
11.1 The Purchaser or its licensors own the Intellectual Property Rights and all other rights in all drawings, specifications, artwork, data, supplies, equipment, tooling, dies, moulds, designs, fixtures, patterns and any other materials provided by the Purchaser to the Supplier in connection with this agreement (“Purchaser Material”).
11.2 Where the Supplier develops a product that is supplied to the Purchaser under a Purchase Order:
(i) To the extent that the development of the product involves the creation of Intellectual Property Rights by the Supplier (“Developed Material”), the Supplier assigns unconditionally to the Purchaser the Developed Material upon its creation. The Supplier will do all things necessary to give effect to the assignment of Developed Material, including executing any documents which are reasonably required by the Purchaser to be executed; and
(ii) to the extent that the development of the product involves the use or modification of drawings, specifications, artwork, data, supplies, equipment, tooling, dies, moulds, designs, fixtures, patterns or any other materials owned by the Supplier or its licensors (“Supplier Material”), the Supplier grants the Purchaser a non-exclusive, royalty-free, irrevocable and perpetual licence (including the right to sub-license) to use the Supplier Material to the extent necessary for the Purchaser to operate, maintain, develop, repair or otherwise support the product.
11.3 The Purchaser grants the Supplier a limited non-exclusive, royalty-free, non-transferrable and non-sub licensable licence to use the Purchaser Material and the Developed Material only for the sole purpose of fulfilling a Purchase Order. The Supplier must not use the Purchaser Material or Developed Material for any other purpose without the Purchaser’s prior written approval. 11.4 Upon the termination or expiry of this agreement, the Supplier must:
(i) Immediately cease to use any of the Purchaser Material or Developed Material; and
(ii) at the Purchaser’s option, return to the Purchaser all records of the Purchaser Material or Developed Material in the Supplier’s possession or control, or destroy or permanently disable access to all records of the Purchaser Material or Developed Material in the Supplier’s possession or control.
If requested by the Purchaser, the Supplier agrees to provide a statutory declaration by its chief executive officer that the Supplier has complied with this clause 11.4.
11.5 The Supplier warrants that the Developed Material and Supplier Material, and the exercise of the Purchaser’s rights in respect of the Developed Material and Supplier Material under this agreement, do not infringe the Intellectual Property Rights of any person.
11.6 The Supplier indemnifies the Purchaser against all loss, damage, expense or liability arising out of or in connection with:
(i) Any breach of the warranty in clause 11.5; or
(ii) Any third party claims that the Developed Material or Supplier Material, or the exercise of the Purchaser’s rights in respect of the Developed Material or Supplier Material under this agreement, infringes their Intellectual Property Rights.
11.7 The Supplier further agrees not to use the Purchaser’s trademarks and trade names on any products except on the Products, including packaging, sold to Purchaser.
12.1 The Supplier shall comply in all aspects, and take reasonable steps to ensure compliance by its employees and subcontractors, with the Code of Ethics.
13.1 As part of the business relationship between Purchaser and Supplier, Supplier may learn or come into possession of information or data that constitutes trade secrets, know-how, confidential information or other data which are confidential information of Purchaser (“Confidential Information”). Confidential Information does not include information which is already in the public domain, except to the extent that the information is in the public domain by reason of a breach of this clause 13.2 Supplier must not disclose the Confidential Information to any person except:
(i) representatives of the Supplier requiring it for the purposes of this agreement, subject to the recipient agreeing to be bound by confidentiality obligations no less onerous than those in this clause 14.
Any act or omission by the recipient in respect of the Confidential Information will be deemed to be an act or omission by the Supplier;
(ii) With the consent of the Purchaser;
(iii) If the Supplier is required to do so by law or the lawful request of a stock exchange; or
(iv) If the Supplier is required to do so in connection with legal proceedings relating to this agreement or any other agreement between the parties.
- 1 Certain legislation may imply warranties, terms, conditions and/or guarantees that cannot be excluded, restricted or modified.
If such legislation applies, to the extent to which Autofrigo is entitled to do so, its liability is limited at its option to:
- (a) In the case of goods:
- (i) replacement of the goods or the supply of equivalent goods;
- (ii) payment of the cost of replacing the goods or of acquiring equivalent goods, by credit to the Customer’s account, in
cash or by cheque at Autofrigo’s discretion; or
- (iii) repayment of any part of the purchase price of the goods which has been paid by the Customer, by credit to the
Customer’s account, in cash or by cheque at Autofrigo’s discretion.
- (b) In the case of services, by supplying the services again.
- 2 All goods supplied by Autofrigo are subject to the Express Warranty. To the extent permitted by law and subject to clause 10.1, the Express Warranty is in substitution for all other terms, conditions, warranties, guarantees and representations express or implied by legislation or otherwise.
- 3 The Customer expressly acknowledges and agrees that it has not relied upon, and Autofrigo is not liable for, any advice given
by Auto Frigo, its employees or agents in relation to the suitability for any purpose of goods, materials and/or services supplied by Auto Frigo. 14.2 Liability and Indemnity
Subject to clause 10 and except to the extent the law provides that liability cannot be excluded, Autofrigo shall not under any
circumstances be liable for (and the Customer releases Auto Frigo from) any injury, loss (including without limitation indirect loss, special loss, consequential loss, loss of profit, loss of revenue, loss of income, loss of business opportunity, loss of anticipated savings or pure economic loss), damage, cost, expense or liability (whether in contract, tort or otherwise) of any nature whatsoever which may be suffered or incurred by the Customer arising directly or indirectly out of or in connection with the supply of goods and/or services by Auto Frigo or the failure by Auto Frigo to comply with these terms and conditions, even if due to the negligence of Auto Frigo or any of its officers, employees, contractors or agents.
To the fullest extent permitted by law, the Customer indemnifies Auto Frigo and its officers, employees, contractors and agents from and against any loss, damage, cost, expense (including reasonable legal fees and expenses), liability, claim, demand, action, suit or proceeding of any nature suffered or incurred by Auto Frigo or its officers, employees, contractors and agents arising directly or indirectly out of the Customer’s performance or non-performance of these terms and conditions, or any act, omission, negligence or default of the Customer or the Customer’s officers, employees, contractors and agents.
15.1 The Supplier may not assign or otherwise transfer its rights and obligations under these Conditions without the prior written consent of the Purchaser.
15.2 The laws of the territory in which the Goods are supplied or the Services performed will govern the Purchase Order.
15.3 The Supplier must obtain and maintain public liability insurance with a reputable insurer for at least US$10 million, and insure the Goods with a reputable insurer for their full replacement cost.
15.4 The Supplier is an independent contractor of the Purchaser.
15.5 These Conditions constitute the entire agreement between the parties as to its subject matter and supersedes any prior understanding or agreement between the parties.
15.6 If either party gives or is required to give a notice to the other party, it must be in writing and directed to the General Manager. The notice may be sent by registered post or facsimile.
15.7 The failure of a party to require performance of any obligation under these Conditions is not a waiver of that party’s right to insist on performance or, or claim damages for breach of, that obligation unless that party acknowledges in writing that the failure is a waiver.
15.8 Each provision of these Conditions is severable. Severance does not affect any other provision.
15.9 No variation to these Conditions will be of any force or effect unless in writing signed by an authorised representative of each party.
Subject to the provisions set out below in these warranty conditions (“Warranty Conditions”), AUTO FRIGO guarantees the Refrigeration Unit / Air Conditioner will be free from material defects under normal operating conditions (“material defects”) for the period of 12 Months (after purchase of the vehicle containing the Refrigeration Unit / Air Condition) / 100,000km (whichever occurs first) (“Warranty Period”). Conditions apply.
AUTO FRIGO may offer you, and you may purchase from AUTO FRIGO, an extended warranty option for 2 or 3 years (after purchase of the vehicle containing the Refrigeration Unit / Air Conditioner), at an addition cost, and as advised by AUTO FRIGO, from time to time. If you agree to purchase the extended warranty, then reference to “Warranty Period” throughout this User Guide will be to that relevant extended warranty period.
Subject to these Warranty Conditions, during the Warranty Period, AUTO FRIGO will replace or repair (at AUTO FRIGO’s absolute discretion) free of charge each part of the Refrigeration Unit / Air Conditioner found to be materially defective, provided that:
1. An authorised AUTO FRIGO Service Agent:
(a) Has correctly installed the unit.
(b) Has correctly carried out any subsequent repairs.
2. There has been no unauthorised alterations or modifications to the Refrigeration Unit / Air Conditioner,
or any part of it.
3. A FREE 2,000 KM Inspection has been carried out by an AUTO FRIGO Service Agent (this is required to maintain the warranty, and is provided free of charge).
(a) The Refrigeration Unit / Air Conditioner has been serviced every 6 months / 15,000kms, whichever comes first (this is required to maintain warranty).
(b) The Refrigeration Unit / Air Conditioner has been serviced and maintained in accordance with the Service Schedule Log and by an authorised AUTO FRIGO Service Agent.
(c) The Service Schedule has been stamped by an authorised Service Agent & notified to AUTO FRIGO within 14 days from date of service.
(d) The Refrigeration Unit / Air Conditioner has not been subjected to accidental damage.
(e) You have at all times complied with this User Guide and the Term and Conditions.
You acknowledge and agree the following:
1. This User Guide must be produced whenever a warranty claim is made.
2. All warranty claims or repairs must be carried out at an AUTO FRIGO Workshop or at an authorised repairer.
3. No warranty claims will be entered into if repairs are carried out without the authorisation of AUTO FRIGO.
4. This warranty is automatically void if repairs are carried out by non-authorised repairers.
5. Without limiting any other provision, the following items are not covered by this warranty: Loss of time, product, incidental charges such as telephone calls, alternative transport charges, hotel bills, towing etc, defects in or replacement of products, accessories and parts which are not supplied by AUTO FRIGO or lack of required maintenance services.
6. The refrigerated van is only intended for the transport of goods.
7. All the doors and flaps must be closed while the vehicle is in motion.
8. The load transported must be adequately secured, using lashing straps or locking roads, in such a way that it cannot slip while the vehicle is in motion or in the event of an accident.
9. The specified maximum payloads and axle loads must not be exceeded.
10. Passengers may only travel in the cab. No one may travel in the load compartment.
11. Retrofitting seats in the load compartment is not permitted, even if these seats are equipped with suitable restraint systems.
12. Do not carry out any modifications to the insulated body if they are not described in these instructions. You could thereby jeopardise safety.
13. Comply with the operating and maintenance conditions in these Operating Instructions and all other operating instructions supplied.
Observe the following information when using the vehicle:
• The safety notes in these Operating Instructions
• The “Technical Data” section in these Operating Instructions.
• National road traffic regulations
• National road traffic licensing regulations
• The vehicle’s Operating Instructions
Claims and returns
Despite any provision to the contrary (but subject to these Warranty Conditions), and to the maximum extent permitted by
1. All complaints, requests for return of goods, claims, or notification of lost, incomplete, damaged, defective or non-compliant goods or services must be submitted to AUTO FRIGO in writing within 7 days of the date of delivery or supply of the relevant goods or services. Where no such notice is given to AUTO FRIGO, you are deemed to have accepted the relevant goods or services, will have no claim against AUTO FRIGO in relation to the relevant goods or services, and shall not refuse to pay for the goods or services on the basis that they were lost, incomplete, damaged, defective or do not comply with your order.
2. AUTO FRIGO will not accept the return of goods unless the following conditions are satisfied:
(a) AUTO FRIGO’s written approval has first been obtained (which will include the issue of an authorisation number);
(b) the goods are returned to AUTO FRIGO in accordance with this clause within 7 days of the issue of the authorisation number;
(c) a copy of the relevant invoice is enclosed with the returned goods;
(d) the goods returned are of merchantable quality (as determined solely by AUTO FRIGO in its absolute discretion) with the original packaging, parts, accessories, documentation and proof of purchase, and without damage or marks;
(e) you pay shipping costs for the return of the goods to a warehouse or other premises nominated by AUTO FRIGO; and
(f) you pay to AUTO FRIGO a handling charge equal to 15% of the price paid for the goods.
3. You will be responsible for all loss, cost, expense and damage incurred in relation to the goods during return shipment.
4. You shall not deduct the amount of any anticipated credit from any payment due to AUTO FRIGO.
The Australian Consumer Law may imply warranties, terms, conditions and/or guarantees that cannot be excluded, restricted or modified. Any and all other warranties or conditions which are not guaranteed by the Australian Consumer Law are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in this document.
If the Australian Consumer Law applies then, despite any provision to the contrary, to the maximum extent permitted by law, AUTO FRIGO’s liability is limited (at its option) to:
1. In the case of goods:
(a) replacement of the goods or the supply of equivalent goods;
(b) payment of the cost of replacing the goods or of acquiring equivalent goods, by credit to your account, in cash or by cheque at AUTO FRIGO’s discretion; or
(c) repayment of any part of the purchase price of the goods which has been paid by you, by credit to your account, in cash or by cheque at AUTO FRIGO’s discretion.
2. In the case of services, by supplying the services again.
Additional Warranty conditions
Despite any provision to the contrary, to the maximum extent permitted by law, you acknowledge and agrees that:
1. this User Guide sets out a number of factors that may impact on the performance of the goods and/or services, and AUTO FRIGO will have no responsibility or liability to you, and you will have no claim against AUTO FRIGO, to the extent the performance of the goods and/or services is impacted by any of those factors;
2. this User Guide is in substitution for all other terms, conditions, warranties, guarantees and representations in relation to the goods and/or services, whether express or implied by legislation or otherwise; and
3. you will have no entitlement to make any claim against AUTO FRIGO, whether under this User Guide, the Terms and Conditions or otherwise, to the extent you have failed to comply with any provision of this User Guide or the Terms and Conditions.
You expressly acknowledges and agrees that you have not relied upon, and AUTO FRIGO is not liable for, any advice given by AUTO FRIGO, its employees, agents or any third party in relation to the goods, including the suitability for any purpose of the goods, materials and/or services supplied by AUTO FRIGO.