In terms of this Sales Invoice (“Invoice”), the Kraft Foods legal entity or its branch, as specified on this Invoice (“we,” or “us”) agrees to sell and you agree to purchase the goods and services listed on this Invoice. You may accept this Invoice by informing us or accepting delivery of the goods or performance of the services under it, whichever you do first. You cannot change the terms of this Invoice and the terms of this Invoice supersede any terms you propose on your documentation or otherwise.
1. Prices and Payment
We will sell the goods and services to you at the price stated on this Invoice. If no price is stated in the Invoice, the price will be the lower of (a) the last price we charged or quoted you or (b) the lowest market price applicable while we performed under this Invoice. The price includes all costs associated with the delivery of the goods or services, unless we agree in advance in writing to any alternative delivery procedures of your choosing and whether at your cost or otherwise. In the event that we are to reimburse you for any such associated costs, you will list all such associated costs on the Invoice without markup, after any discount or rebate and provide copies of original supporting documentation in respect of the associated costs. The payment terms time-period on this Invoice will begin on the later of proper performance or delivery of the relevant goods or services, or a correct Invoice has been delivered. Unless we are obliged to apply different payment terms due to mandatory law, you will make payment to us by no later than the first 8 (eight) days following the expiry of the 30 (thirty) days payment terms time-period. Our Invoice will show your purchase order reference. You may not withhold disputed amounts under this Invoice until the dispute is resolved, we will credit your account on the next Invoice alternatively reimburse you in cash, should there be no further Invoices. We may apply a set-off or deduction of any amounts we or our affiliates owe you.
We will ensure that all goods (including their packaging) and services will: (a) comply with your specifications and conform to all samples approved; (b) be free of defects, correctly labeled, made with new materials, and be of good quality and workmanship; (c) be suitable for their intended use in or with food products; (d) not infringe, nor will our use of them infringe, anyone’s intellectual property rights or any other rights; (e) not impart any unintended flavor, odor, texture or color to any of your products; and (f) be performed diligently and in a professional and workmanlike manner. We will ensure that the provision of all goods and services comply with: (i) all applicable laws, regulations, and industry standards of the countries in which the goods are delivered or services are performed and/or will be used (provided we have advised you of those countries in writing). You must tell us immediately if you learn of any potential quality, safety or labeling defect with the goods and services or any potential violation of our obligations in this Invoice. We hereby assign to you any warranties related to the goods and services, or if we cannot assign them, we agree to make claims under them on your behalf at your request. We will ensure that our employees, agents, and subcontractors comply with this Invoice and, when on your premises, your quality, safety and security requirements.
3. Rejection and Returns
You will inspect goods and services upon delivery and notify us of any non-compliance that exists by noting same on the Invoice and returning the goods and services to us. You may reject and return to us, at our expense, all or any part of the goods delivered in excess of the quantity ordered and/or which do not conform to the Invoice, the specifications or our obligations as set out in this Invoice. In event we will, at our discretion, deliver replacement goods or services that conform to the Invoice and our obligations within a reasonable time, or credit you in full, or give you an appropriate discount. We will bear any costs incurred in connection with the delivery of replacement goods and services including transportation, removal, examination, installation, etc. Notwithstanding anything to the contrary contained herein, you are responsible for testing, inspection, quality control, and of providing certificates of analysis from accredited laboratories to us in respect of the goods and services and we reserve the right to conduct our own testing, inspection and quality control in order to verify and/or confirm the results of your testing activities. Kindly note that Kraft Foods will not accept any returns that do not have a valid Kraft Foods returns reference number. The reference number is an eight digit SAP number commencing with the number 6 and is obtained from a Kraft Foods sales representative. The same reference number must be quoted by the Kraft Foods representative who is uplifting any returns – no upliftment must be permitted by the Customer without confirmation of the relevant Kraft Foods returns reference number.
4. Expired Stock.
Unless otherwise agreed, all expired and/or tainted stock will be returned to us, at your expense, for destruction. In the event that we have agreed in writing that you may dispose of the expired and/or tainted stock, you shall do so at your expense and, on written request from us, provide us with a copy of the proof of destruction which shall set out the details and quantities of such expired or tainted stock that has been destroyed and the manner of its destruction.
5. Changes and Cancellation
You may only amend or cancel this Invoice before the stock has been picked and loaded onto the trucks for delivery or within 48 hours of the date on which the services were scheduled to be performed. If we demonstrate that a change will reduce your costs or if we demonstrate that a change will increase our costs or affect our ability to complete this Invoice on time, we will negotiate a fair adjustment to the price or time schedule.
After you notify us, we will take all reasonable steps to minimize costs due to your cancellation. As our exclusive remedy, you will pay us for our unavoidable costs incurred before receiving your notice (less any savings realized from your cancellation) that we can evidence to your reasonable satisfaction.
6. Delivery and Identification of Goods
Unless specified otherwise we will deliver the goods to you as stated in this Invoice under Incoterms 2010. If the delivery terms are not specified, they will be DDP to your “deliver to” location stated in this Invoice. We shall use our reasonable commercial endeavours to ensure that the goods and services are timeously delivered. We will deliver on weekdays during your normal business hours. We will properly label all units with our name, description of goods, Invoice number, batch number and if applicable "best before date" and any other identifying information that may be legally required. We will provide accurate and complete information on all shipping and customs documents, including a description of the goods, country of origin and manufacture, currency, delivery terms and the actual manufacturing site. We will only be liable for any goods that are delivered which bear the Kraft Foods South Africa (Proprietary) Limited name, address and customer care information. Any products that bear the Kraft Foods label, but do not contain the Kraft Foods South Africa (Proprietary) Limited details listed above ("Grey Product"), will be deemed not to have been purchased from us and we will accordingly not be liable for any defects or other liability that may arise from such Grey Product and you indemnify us from any loss, damage, expense or the like which we may incur as a result of such Grey Product being returned to us or any claim of any nature being made against us in connection with such Grey Product.
We hereby indemnify, defend and hold you (and your affiliates, employees, and agents) harmless from any and all direct losses, damages, fines, penalties, and expenses (including reasonable legal fees) arising from third party claims resulting from the actual or alleged breaches of this Invoice, negligent acts or omissions, or willful misconduct by us or our employees, agents, or subcontractors in connection with the delivery of the goods or services. It is expressly recorded that we shall not be liable for any indirect or consequential losses that you may suffer as a result of the delivery of the goods or the performance of the services.
We confirm that we will maintain, at our cost, commercial general liability insurance covering our obligations under this Invoice with combined single limits of at least ZAR 4,000,000 per occurrence and in the aggregate. If our employees will be present on your premises, we will also maintain, at our cost, worker’s compensation or local equivalent coverage as and in amounts required by applicable law, and automobile third party liability coverage with a combined single limit of ZAR 1,000,000 per occurrence or of the amount required by applicable law of the country where the vehicle is in use, whichever is greater.
9. Dispute Resolution and Governing Law
If the parties cannot resolve a dispute regarding this Invoice through good faith negotiation, it will be resolved by decision of the commercial courts of the country in which we (or our selling branch) have our registered office and the law of that country will apply. The Vienna Convention on the International Sale of Goods will not apply.
10. Uncontrollable Events
If either party is unable to comply with this Invoice because of events beyond its reasonable control, that party will promptly notify the other in writing and will make reasonable efforts to restore its ability to perform within 10 days. If the inability to perform continues for more than 10 days, the other party may cancel this Invoice immediately, without costs or penalty, by giving written notice to the party unable to perform. Unexpected cost increases caused by events or changing market conditions, and labour strikes, work slowdowns, or other job actions at our facility are not uncontrollable events.
We may audit any of your facilities and records involved with this Invoice to evaluate your quality and food protection procedures and compliance with specifications (“Quality Audits”), your compliance with our Corporate Social Responsibility (“CSR”) Policies (“CSR Audits”). We may conduct Quality Audits ourselves or through third-party representatives that we select or that you select from our pre-approved list, and you will not request any auditor to sign an additional agreement in order to conduct the audit. We may also require that you complete a questionnaire either in lieu of or in advance of an audit, or that you register with and submit information to a third-party that we have selected to manage audit information. For Quality and CSR Audits, you will cooperate with our reasonable efforts to assess your compliance. We may request that you have a third party audit performed according to the Global Food Safety Initiative (GFSI) accredited certification systems. We may require re-audits periodically according to our risk assessment of your operations. If you are in breach of this Invoice, you will immediately take corrective actions that we reasonably require, and we or our representative may audit your facility or records as often as reasonably necessary to verify correction. For Quality and CSR Audits, we will bear our own internal costs and you will bear all other audit costs (including those of the third-party auditors). If you refuse any audit, we may withhold supply of the goods or services and/or we may cancel the Invoice.
12. Confidential Information
Any non-public information that you learn about us in connection with this Invoice, including the Invoice itself, is our confidential information and you may not disclose it to any third party without our prior written consent. You may only use our confidential information to perform under this Invoice, and may share it only on a need-to-know basis with your employees (and others we have previously approved who have signed confidentiality agreements reasonably acceptable to us). We own the confidential information and you must return it and all copies to us or dispose of it in a manner approved by us if we request you to do so in writing.
13. Assignment of Intellectual Property Rights
All intellectual property rights, howsoever arising, including trademarks, copyright, patent and design rights and the like shall belong to, and automatically vest in us (as legally possible) and you will, at our request and expense, execute or procure the execution of such confirmatory assignments as we may require.
Unless both parties agree otherwise in writing, each party will be responsible for its own respective taxes as required by law. If we are required to charge tax (e.g., state sales tax) or you are required to withhold tax, then the required party will give the other the opportunity to demonstrate (and document) how such charge or withholding may be mitigated (for example, by providing a sales tax exemption certificate).
15. Corporate Social Responsibility
We will comply with the following in performing under this Invoice:
(a) Forced Labour - You will not make use of any forced labor, which means any work or service performed involuntarily under threat of physical harm or other penalty. You shall respect the freedom of movement of your workers and not restrict their movement by controlling identity papers, holding money deposits, or taking any other action to prevent workers from terminating their employment. If workers enter into employment agreements with you, workers should do so voluntarily.
(b) Child Forced Labor - Kraft Foods will not tolerate the use of unlawful child labor or forced labor in the manufacture of products it sells and will not accept products or services from suppliers, subcontractors or business partners (collectively referred to as “suppliers”)that employ or utilize child labor or forced labor in any manner.
The following Principles express the specific expectations Kraft Foods has for its suppliers.
Licensees and External Manufacturers or Kraft Foods licensees and external manufacturers who produce Kraft Foods branded products shall not employ or utilize in any manner, any individual under the age of 15, or the local minimum employment age, or the mandatory schooling age of the country in which the individual is employed, whichever is the higher.
Kraft foods other direct suppliers shall not employ or utilize in any manner any individual below the minimum employment age set by national law or by International Labor Organization (“ILO”) Convention 138, whichever is higher. The ILO Convention 138 provides that the minimum employment age should be not less than the mandatory schooling age of the country in which the individual is employed and, in any case, not less than 15 years (except for certain developing countries , where a minimum age of 14 years is applicable), subject to permitted exceptions allowed by the ILO and national law.
(c) Diversity and Inclusion - We will hire, compensate, promote, discipline, and provide other conditions of employment based solely on an individual’s performance and ability to do the job (except as required under collective bargaining agreements). We will not discriminate based on a person’s race, sex, age, nationality, marital status, ethnic origin, or any legally protected status.
(d) Harassment and Abuse - We will provide a workplace free from harassment, which can take many forms, including sexual, verbal, physical or visual behavior that creates an offensive, hostile, or intimidating environment.
(e) Safety and Health - We will (i) endeavor to provide safe working conditions, (ii) provide our employees with appropriate protection from exposure to hazardous materials, and (iii) provide our employees with access to potable water and clean sanitation facilities.
(f) Third-Party Representation - We will respect the decision of our employees to join and support a union as well as their decision to refrain from doing so where legally permitted.
(g) Working Hours and Compensation - Within the bounds of normal seasonal and other fluctuations in business requirements, we will maintain a reasonable overall pattern of required working hours and days off for our employees so that total work hours per week do not regularly exceed industry norms; (ii) pay fair and timely compensation, including any required premium payments for overtime work; and (iii) advise new employees at the time of hiring if mandatory overtime is a condition of employment.
(h) Disciplinary Practices - We will not use corporal punishment or other forms of mental or physical coercion as a form of discipline.
(i) Business Integrity - We will promote honesty and integrity in our business conduct by raising ethical awareness among our employees and providing direction and education on ethical issues.
(j) Environment and Sustainability - We will work to continuously improve our environmental performance by setting and then working toward quantifiable goals that reduce the environmental impact of your activities.
16. Anti-Corruption and Bribery
You must not:
(a) offer or pay, directly or indirectly, money or anything of value for or on behalf of Kraft Foods to any official or employees of a government or state-owned business, international organization, political party, political candidate, or any person otherwise acting in an official capacity (a” Government Official”) for or on behalf of such entity; for the purposes of carrying out its obligations under this Agreement, obtaining a business advantage for any member of Kraft Foods, assisting any member of Kraft Foods in directing business to any person, or facilitating a routine government action; or
(b) offer or pay, directly or indirectly, money or anything of value for or on behalf of any member of Kraft Foods to any other person or legal entity for any illegal purpose.
If any member of Kraft Foods has reason to believe that a breach of any of the matters set out herein has occurred or may occur, it may withhold further payments under the relevant agreement or arrangement until such time as it has received confirmation to its satisfaction that no breach has occurred or will occur. Any member of Kraft Foods may terminate the relevant agreement or arrangement immediately upon written notice to you if it concludes, in its sole opinion, that you have breached any of the matters as set out herein or that a breach is substantially likely to occur.
17. Sub-contracting and Assignment
We may sub-contract or assign any of your rights or obligations under this Invoice without your consent.
18. Conflicts and Entire Agreement
If this Invoice references an existing agreement and there are discrepancies between such an agreement and the terms of this Invoice, the terms of that agreement shall prevail over this Invoice. In all other instances, this Invoice (along with any existing agreement referenced in this Invoice) is the entire agreement between you and us with respect to the goods and services, and no prior discussion, agreement, conduct, or industry practice will affect it. Subsequent changes to the Invoice must be in a written document signed by both parties. We may modify these terms & conditions by stating so in this Invoice.
19. Independent Contractor
This Invoice does not create a partnership or joint venture between the parties nor confer on any person who is not a party to this Invoice any right to enforce any term of this Invoice. Each party is an independent contractor, has no authority to bind the other party, and is solely responsible for its respective employees and subcontractors.
If any part of this Invoice cannot be legally enforced, then the parties agree that the provision will be deemed modified as necessary to make it enforceable while remaining as consistent as possible with the parties’ intent as expressed in the Invoice.
This Invoice is not exclusive, and either party is free to enter into similar agreements with anyone else, unless otherwise stated on this Invoice.
The completion or cancellation of this Invoice, will not affect any rights and obligations that by their nature should continue.
This Invoice may be executed in another language in addition to English. In case of conflicts between the versions the English version shall prevail.