Sales Terms & Conditions

INTERAUST FOODS PTY LTD (ABN 93 996 700 605)

STANDARD TERMS AND CONDITIONS - issue date 30/11/2013

1. Preamble

1.1 The Customer has invited Interaust to quote for the provision of certain goods.

1.2 Interaust, having considered the Customer\'s requirements, has offered to supply goods of a kind and amount identified in the Quote (‘the Goods\', or \"Goods\") to the Customer, subject to Interaust\'s standard terms and conditions, and the Customer has agreed to take the Goods on those terms and conditions, along with any special clauses/conditions as listed in the Quote.

1.3 This document sets out Interaust\'s standard terms and conditions, which govern the transaction between Interaust and the Customer in respect of the Goods. By requesting Interaust to supply it with the Goods, the Customer agrees to be bound by the terms and conditions set out in this document, and by any variation of them to which the Customer and Interaust may agree in the manner stipulated in this document.

2. Definitions and interpretation

2.1 In this document:

(a) ‘Agreement\' means the agreement between Interaust and the Customer for the supply of the Goods incorporating these terms and conditions and (subject to clause 3.3) such specifications and terms as may be recorded in the Quote or the Request;

(b) ‘Business Day\' means, in relation to something which may or must be done under the Agreement, any day upon which banks are open for business in the place where that thing must or may be done;

(d) ‘Insolvency Event\' means, in respect of any entity:

(1) being a incorporated entity, entry into provisional liquidation or liquidation, voluntary administration, a deed of company arrangement, receivership, or suffering the appointment of a receiver and manager, or entering into any other form of external administration by reason of its inability to pay its debts as and when they fall due and owing;

(2) being a natural person, entry into bankruptcy by any means, or entry into a compromise or arrangement with its creditors for the payment of its debts under any statute or law dealing with bankruptcy or insolvency; or

(3) calling or authorising any person to call on its behalf a meeting of its creditors to consider a proposed compromise of its indebtedness or a proposed arrangement for the payment of its debts.

(e) ‘Interaust\' means Interaust Foods Pty Ltd (ABN 93 996 700 605);

(f) ‘Price\' means the amount identified as such in the Quote, or as varied from time to time during the Term by agreement between the parties;

(g) ‘Quote\' means the document entitled ‘FSP 059 - Quote for Supply of Goods\'.

(h) ‘Validity\' means the effective period in Business Day(s) to when the quote expires.

(i) ‘Request\' means any written request for a quote on the supply of the Goods given by or on behalf of the Customer to Interaust;

(j) ‘Supplier\' means any person, company, or organization with whom Interaust contracts for the purpose of obtaining Goods to supply to the Customer under the Agreement; and

(k) ‘Term\' means the period identified as such in the Quote.

(l) ‘FIS\" means Free Into Store, with the Goods delivered in full to the Customer\'s delivery address, as noted in the Quote, with delivery costs covered by Interaust.

(m) \"Ex Store\" means the transport is not included to the Customer from the Interaust nominated warehouse.

(n) \"Pro-forma Invoice\" means the invoice issued to the Customer for prepayment in full of the price contained in the Quote prior to delivery of Goods.

2.2 Unless repugnant to sense or context, all words used in the Agreement:

(a) importing the singular import the plural, and vice-versa;

(b) importing gender import all genders; and

3. Sale of the Goods

3.1 Interaust agrees to obtain the Goods for the Customer and to sell the Goods to the Customer, in consideration for payment of the Price. All prices and volumes contained within the Quote are subject to final confirmation by Interaust.

3.2 The Goods must meet the specifications set out in the Quote to which this document is attached, and/or the specifications set out in the Request (if any).

3.3 The Customer acknowledges that specifications set out in the Quote may differ from those set out in the Request, and that in providing the Quote Interaust is making an offer to the Customer. If there is any conflict or inconsistency between the specifications as set out in the Quote and the specifications as set out in the Request, the specifications set out in the Quote will apply to the exclusion of those set out in the Request, to the extent of that inconsistency only.

3.4 The Customer acknowledges that the Agreement is not an agreement for the supply of ascertained goods, and that appropriation of specific goods to the Agreement is a matter entirely within Interaust's discretion provided that nothing in this document or the Agreement obliges the Customer to accept goods that do not substantially comply with specifications set out in the Quote and/or the Request, as the case may be.

3.5 The Customer acknowledges that terms used in the specifications for any Goods the subject of the Agreement indicating varietal name and/or region of origin is not an essential part of the specification of such Goods. Interaust will make every reasonable effort to supply goods conforming to such descriptions. However, the Customer agrees that Interaust may appropriate Goods to the Agreement not conforming to such descriptions stipulated in the specifications if it so chooses.

3.6 If Interaust is unable to obtain Goods conforming with the Customer\'s specification as to country of origin, Interaust may offer the Customer alternative Goods but may not appropriate them to the Agreement without first obtaining the Customer's consent.

4. Term of agreement

4.1 The Agreement will remain on foot between Interaust and the Customer until the expiry of the Term, or until Interaust has supplied all of the Goods to the Customer, or the Agreement is terminated pursuant to clause 13.1 or 13.2, or ceases to have effect pursuant to clause 13.3, whichever event occurs first.

5. Ordering Goods

5.1 The Customer must provide Interaust with a written notice specifying the particular quantity of the Goods it wishes Interaust to supply, and specifying the place to which and the time at or by which it wishes that quantity of Goods to be delivered, and the contract number recorded on the Quote (if any).

5.2 The Customer acknowledges that Interaust requires, and agrees to give Interaust, the following minimum delivery lead times when ordering stock held by or on behalf of Interaust:

(a) for stock held within the same state as the Customer\'s specified delivery address and being delivered to the same metropolitan area, 3 clear Business Days;

(b) for stock held within the same state as the Customer\'s specified delivery address but being delivered to country region, 5 clear Business Days;

(c) for stock held within Australia but in a different state to that of the Customer\'s specified delivery address, 5 clear Business Days;

(d) in any other case, such lead time as may be agreed between Interaust and the Customer prior to order.

5.3 Interaust must use all reasonable endeavours to deliver the Goods the subject of a written notice under clause 5.1 within such reasonable time as may be specified in that notice, but the Customer acknowledges that Interaust is not obliged to deliver within that time.

5.4 Before placing any orders with Interaust, the Customer must provide Interaust with a list of its officers, employees, and representatives who are authorised by the Customer to place orders on its behalf, which list the Customer must update as necessary from time to time. The Customer agrees that:

(a) Interaust will not be required to fill any order placed by any person not listed as authorised by the Customer; and

(b) the Customer will be liable for any order placed by, or using the name, of a person on the Customer\'s authorisation list.

6. Packaging and transport

6.1 Interaust must deliver all Goods to the Customer packaged in the manner specified in the Quote and/or Request.

6.2 Notwithstanding clause 6.1, Interaust may deliver Goods to the Customer packaged other than in the manner specified in the Quote and/or Request, provided always that the manner of packaging adopted is at least as efficient at containing, preserving, and maintaining the quality and purity of the Goods as is the specified manner of packaging, and is made of material of a quality equal to or better than that specified (if any), and complies with any laws, regulations, or mandatory standards in force in the place of delivery.

6.3 The manner in which any Goods ordered by the Customer are to be transported to the Customer\'s delivery point is a matter entirely at Interaust\'s discretion, unless Interaust and the Customer specifically agree on a particular mode of transport.

6.4 In the instance of FIS Quote, Interaust is liable for all ordinary freight charges incurred in obtaining the Goods and delivering them to the Customer, but may pass on to the Customer any extraordinary freight charges (which, for the purposes of this clause, include, but are not limited to, increases in such charges not notified to Interaust at the date of the Quote specified in the Quote.

6.5 In the instance of Ex Store Quote, if the Customer elects to arrange its own pick up of the Goods, this may be done at a time as agreed in writing by Interaust. If the Customer requires Interaust to provide transport of the Goods, then this cost shall be additional to the Ex Store Quote. For any Pro Forma Quote, the transport costs associated with the supply of Goods must also be pre-paid at the time of the payment for the Goods.

7. Payment

7.1 Interaust must render an invoice for payment to the Customer in respect of any consignment of Goods sent to the Customer. Such invoice must comply with any requirements noted in the Request and/or Quote, and may be delivered with the particular consignment of Goods to which it relates, or may be delivered separately to the Customer\'s address as noted in the Schedule.

7.2 The Customer must pay Interaust any invoiced amount within 30 days of the end of the calendar month in which Interaust renders the relevant invoice, unless Interaust and the Customer have agreed on different payment terms. The Customer may not withhold payment of the invoiced amount or any part of it for any reason other than failure to deliver more than 70% of the Goods the subject of the invoice.

7.3 Interaust is not obliged to refund or reduce, and is not liable to allow any abatement of or set-off against, the Price or any part of it for any reason unless the Customer claims such refund, reduction, abatement, or set-off in writing within 14 days of delivery of the Goods to which such claim relates.

8. Orders placed after expiry of Term

8.1 If the Customer orders Goods pursuant to the Agreement at any time after the end of the Term, Interaust and the Customer must negotiate a new price for those Goods not lower than the part of the Price that would have been payable for them had they been ordered before the end of the Term, but the terms and conditions of the Agreement will otherwise apply to that order.

9. Pro-forma orders

9.1 Notwithstanding clause 7 of this Agreement, the Customer may from time to time agree with Interaust to place a pre-paid order for particular Goods. In any such case, clauses 9.2 to 9.5 will apply.

9.2 In regard to any order placed under clause 9.1:

(a) the Customer must give Interaust written confirmation of the Goods it requires;

(b) Interaust will issue an invoice stating a Price for those Goods, which shall constitute an offer to supply Goods as described in the invoice at the Price stated in the invoice;

(c) if the Customer wishes to accept an offer to supply Goods made under clause 9.2(b), the Customer must pay the amount stated in the invoice to Interaust within 7 days of the date of the invoice (or within such other time, if any, as may be noted in the invoice); and

(d) if the Customer does not accept Interaust\'s offer in the time allowed as provided in clause 9.2(c), the offer will expire and if the Customer still requires the Goods in question it will place a new notice of its requirements with Interaust under clause 9.2(a).

9.3 Interaust shall not be obliged to order Goods to supply the Customer, or to ship Goods to the Customer, until it receives the Price stated in its invoice in full and in cleared funds.

9.4 Interaust does not hold funds received under clause 9.2(c) as trustee for the Customer, and may deal with them as it sees fit.

9.5 The provisions of clauses 3.1 to 3.3, 7, and 8 do not apply to orders made under this clause 9. Clause 6 applies as if references to the Customer\'s Quote or Request are reference to the notice of the Customer\'s requirements given under clause 9.2(a). All other provisions of this Agreement will apply with full effect.

10. Risk and passing of property

10.1 The Customer takes all risk in any Goods appropriated to the Agreement from the moment of appropriation.

10.2 Provided always that the Customer may use any Goods delivered to it under the Agreement in the ordinary course of its business:

(a) Property in Goods appropriated to the Agreement remains with Interaust until the Customer has paid the entire Price due and payable pursuant to the Agreement in full.

(b) The Customer must ensure that any Goods that are the property of Interaust under this Agreement are marked or are identifiable as such, and are stored according to their product specifications, or in the absence of such specifications in such a manner as to maintain their condition and quality.

(c) In the event that the Customer commits a Default, the Customer hereby irrevocably licenses Interaust and its agents, contractors, and servants to enter onto the Customer\'s premises and retrieve Interaust\'s property kept on those premises.

(d) The Customer holds such portion of the proceeds of sale of any Goods that are Interaust\'s property as relates to Interaust\'s property on trust for Interaust, until such time as the Customer pays Interaust for the Goods in question in full, at which time the trusts off this clause shall terminate and all funds held by the Customer on the trusts of this clause shall become the Customer\'s solely and absolutely.

11. Warranties, indemnities, and exclusions

11.1 The Customer agrees that nothing in the Agreement, including but not limited to these terms and conditions or any specification of Goods, constitutes an explicit or implied warranty of merchantable quality or fitness for purpose, or of Interaust\'s ability to deliver Goods to any specific location at or by any specific time.

11.2 All warranties implied into the Agreement by statute are excluded to the greatest extent permitted by statute. Interaust\'s liability for any breach of warranty is limited to the greatest extent permitted by statute.

11.3 The Customer agrees that Interaust is not a common carrier.

11.4 The Customer agrees to indemnify Interaust and hold Interaust harmless for any loss, damage or injury suffered by or to any person or property as a result of the any wilful, reckless, or negligent misconduct or omission in the course of the Customer\'s storage, handling, or use of the Goods, or as a result of any breach of the Agreement, including such breach, misconduct or omission committed or omitted by its contractors.

11.5 Complaints or disputes of any kind do not entitle the Customer to interrupt or delay the payments agreed upon. On no account may the Customer raise objections or complaints towards Interaust whilst it has not met every outstanding payment, including payment of the goods to which the complaint refers.

11.6 The Customer commits to inspect the goods at the time of offloading from the carrier and to report defects not later than and within 7 business days from delivery of the goods. Complaints must be in writing by means of fax, email or registered mail with reply, in which case the transport documents and a copy of the related Sales Order and a detailed description of the type of defect/defects must be enclosed; in the event of hidden defects the complaint must be lodged within 7 business days from detection of same. Interaust is not liable for any defect complaints which are not lodged within the stated deadlines.

11.7 Warranties in accordance with the article at hand are ruled out in the following instances:

(a) defects resulting from incorrect transportation and/or incorrect storage of the products by the Customer;

(b) defects or deviations which can be attributed to incorrect order information by the Customer;

11.8 On the basis of the report submitted Interaust may, within its sole discretion and notwithstanding the necessity of acceptance of the defect, either implement the exchange or price reduction, within its sole discretion. In addition, Interaust has the option of inspecting the defective goods on site or of requesting that the goods be returned at the expense of the client. The rejected goods may only be returned to Interaust upon specific and written authorisation by Interaust.

11.9 The warranty in question is, within the discretion of Interaust, restricted to exchange of the product, price reduction or refund of payment; any additional liability for direct or indirect damages, including lost profits, is excluded.

12. Supplier default

12.1 In the event that any Supplier:

(a) suffers or undergoes an Insolvency Event; or

(b) reneges upon, terminates, repudiates, or defaults under any contract with Interaust for the supply of any goods whatsoever, then Interaust may serve notice of that event upon the Customer and upon service of such notice Interaust and the Customer will be excused from any further performance of their obligations under the Agreement, except that nothing in this clause relieves the Customer from its obligation to pay Interaust for any Goods already delivered to the Customer or in transit for such delivery, or relieves either Interaust or the Customer of or from any other right or obligation in respect of such Goods.

12.2 In any circumstances where clause 12.1 relieves Interaust of its obligation to deliver any Goods to the Customer, Interaust may offer the Customer other goods of equivalent kind, quality and/or quantity, and if the Customer accepts such alternative goods the terms and conditions of the Agreement (as modified by the mutual consent of all parties) shall apply.

13. Termination and its consequences

13.1 If the Customer breaches any term of the Agreement, Interaust may serve written notice on the Customer specifying that breach and requiring the Customer to make good its breach within 14 days of service of that notice. If the Customer fails to make good its breach within that time, Interaust may immediately terminate the Agreement by service of a further written notice.

13.2 The Agreement will terminate without need for any action on Interaust\'s part if the Customer commits or undergoes an Insolvency Event.

13.3 If events beyond Interaust\'s reasonable control prevent Interaust from performing its obligations under the Agreement in a timely manner or at all, and Interaust serves a notice to that effect on the Customer, then the Agreement shall cease to have any prospective force or effect, subject only to clause 13.4.

13.4 If the Agreement is terminated pursuant to clauses 13.1 or 13.2, or ceases to have effect pursuant to clause 13.3, the unpaid balance of the Price that the Customer has contracted to pay Interaust for any Goods ordered under the Agreement becomes immediately due and owing, and must be paid to Interaust on demand, whether or not Interaust has delivered all such Goods ordered to the Customer.

14. Miscellaneous

Notices

14.1 Any notice required or permitted to be served or delivered pursuant to the Agreement may be served or delivered by hand delivering, posting, email, or facsimile transmission to the address, electronic address or facsimile number (as the case may be) specified in the Quote, or any person named in the Customer\'s authorisation list provided under clause 5.4. Any notice so served delivered on a day that is not a Business Day will be deemed served or delivered on the next Business Day.

GST

14.2 If Interaust is liable to pay Goods and Services Tax on any supply made under the Agreement, it will be entitled to add that amount to the invoice rendered in respect of that supply, and the Customer will be obliged to pay that amount as part of the Price.

Governing law

14.3 The Agreement is governed by the laws of the State of Victoria, Australia. The parties to the Agreement hereby submit to the non-exclusive jurisdiction of the courts of the State of Victoria.

Severance

14.4 If any provision of the Agreement is illegal or unenforceable, it shall be read down until it is no longer illegal or unenforceable, or if that is not possible severed from the Agreement, and such severance will not affect the remainder of the Agreement.

Waiver

14.5 No party shall be deemed to have waived its rights under the Agreement only by reason of failing to enforce those rights.

Variation

14.6 The Agreement may only be varied by the express written consent of all parties to it.