STANDARD TERMS AND CONDITIONS OF PURCHASE

FOUR SEASONS AGRIBUSINESS

STANDARD TERMS AND CONDITIONS OF PURCHASE

 

1. DEFINITIONS AND INTERPRETATION

1.1        In these Terms and Conditions the following words shall have the following meaning unless the context requires otherwise:

 

Agreement means in relation to the supply of Products by a Supplier to FSA, these conditions, the Supply Agreement between the Parties, the Purchase Order and any separate written terms agreed between the Parties.

 

Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in the state of Victoria, Australia.

 

FSA means Four Seasons Agribusiness ACN 115 133 189.

 

Corporations Act 2001 (Cth) means the Australian Corporations Act 2001 (Cth).

 

GST means goods and services tax imposed under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

 

Intellectual Property Rights mean all rights in relation to inventions (including patent rights), registered and unregistered trademarks, (including service marks), registered designs, confidential information (including trade secrets), know-how, copyright, circuit layouts, Product Specifications and all other rights globally resulting from intellectual activity in the industrial, scientific or artistic fields, including (i) all rights in all applications to register those rights; and (ii) all renewals and extensions of those rights.

 

PPSA means the Personal Property Securities Act 2009 (Cth) and includes any reference to the PPS Register.

 

Price means the price of Products.

 

Products means the products described in the Purchase Order.

 

Purchase Order means FSA’s request to the Supplier to provide Products.

 

Security Interest means a mortgage, pledge, lien, charge or assignment by way of security, security interest, title retention arrangement, preferential right, trust arrangement, an item registered on the PPSA Register or defined in the PPSA, or any other arrangement having the same or equivalent commercial effect as a grant of security.

 

Supplier means the person so described in the Supply Agreement.

 

2. PURCHASE ORDER AND ACCEPTANCE OF OFFER

 

2.1   Each Purchase Order issued by FSA to the Supplier is an offer to acquire Products from the Supplier subject to these terms and conditions (Standard Terms) and any written special conditions that are included in the Purchase Order.  Where the Supplier accepts our Purchase Order, there is a contract on this basis.  If these Standard Terms are inconsistent with any provision in the Purchase Order, the Purchase Order will prevail to the extent of such inconsistency.

 

2.2   Conflicting conditions of sale and delivery of the Supplier will not be deemed accepted by FSA unless explicitly accepted in writing for a specific Purchase Order or a specific supply of Products.

 

2.3   FSA shall provide each Purchase Order to the Supplier in writing by electronic mail. Each Purchase Order shall contain details of the following: (i) the Product Specifications and quantity; (ii) the required date of arrival at the relevant Australian Port (Delivery Date); (iii) the price and Incoterm used; and (iv) the delivery address (Delivery Destination). The Supplier shall accept the Purchase Order by written confirmation to FSA within 3 Business Days.  If the Supplier does not confirm the Purchase Order within 3 Business Days, the Purchase Order shall be deemed to be accepted.

 

2.4   If the Supplier deviates from a Purchase Order in any confirmation letter, the Supplier is obliged to point out this deviation to FSA.  Purchase Orders are only binding if they are placed in writing by FSA and deviations from a Purchase Order are only binding if they are confirmed in writing by FSA.

 

2.5   A contract based on a Purchase Order is deemed to be completed at the time the Supplier, after receiving a Purchase Order from FSA, has confirmed the Purchase Order or executes the Purchase Order in relation to that Purchase Order.

 

2.6   The Supplier shall in any correspondence state the number and date of the relevant Purchase Order and FSA’s reference.

 

3. PRODUCT QUANTITY, QUALITY AND DESCRIPTION

 

3.1    The quantity, quality and performance of the Products shall, subject to these Standard Terms, be (i) as specified in the Purchase Order; (ii) as specified in any applicable Specification supplied by FSA to the Supplier or prepared by the Supplier and agreed to by FSA in writing; (iii) as otherwise agreed in writing between the parties subsequent to the placement of the Purchase Order, whichever is applicable.

 

3.2    The Supplier must not, without prior written consent of FSA, make any change to the Product specification, the agreed manufacturing method or process if any, testing methods, the raw materials, the registration and marketing approval documents, packaging, or any other change which have a potential impact on the quality of the Products.  FSA may request a sample from lab trials from the Supplier and the Supplier must await FSA’s acceptance regarding the quality and suitability of the modified Product prior to implementation of the modification for industrial production as the case may be.  The Supplier is responsible for and will ensure that the Products manufactured under a changed manufacturing process meet all agreed Specifications.

 

3.3    Any breach by the Supplier of clause 3.2 shall constitute a material breach of the Agreement, and the Supplier shall indemnify, defend and hold FSA harmless from and against any claims, whether direct, indirect or consequential, arising out of or related to such breach.

 

4. DELIVERY AND TIME OF DELIVERY

 

4.1    The Products must be delivered to the Delivery Destination and on the date specified in the Purchase Order (Delivery Date). FSA may specify the Delivery Date after submitting the Purchase Order, in which case FSA shall give the Supplier reasonable notice of the Delivery Date.

 

4.2    The Supplier must deliver all Products in accordance with the Agreement and shall comply with all federal, State and local laws, regulations and legal requirements concerning the manufacture, packaging, packing and delivery of the Products.

 

4.3    In the event that the Supplier expects that it might not be able to fulfil or fulfil on time, any or all of its obligations under the Agreement, the Supplier must inform FSA immediately upon becoming aware of the risk of likely non-performance, stating the reasons and the effect on the fulfilment of its obligations and the likely length of any delay.

 

4.4    The time of delivery of the Products is of the essence, and if the Supplier fails to meet the delivery time specified, it will be in delay from that date onwards and this failure shall constitute a material breach of the Agreement under clause 14.3 of these Standard Terms and without limiting the rights set out in clause 4.9, and any other provision of this Agreement, shall be grounds for immediate termination of the Agreement by FSA.

 

4.5    At the time of dispatch of the Products, the Supplier must send to FSA in electronic form a detailed dispatch note including a copy of the dispatch documentation for each consignment that is separate from the Products dispatched and separate from the invoice.

 

4.6    The Supplier must provide FSA at the time of delivery (but no later than 7 days following delivery) with any instructions or other information required to enable FSA to accept delivery of the Goods.

 

4.7    If less than the quantity of the Products specified in the Purchase Order or otherwise agreed is delivered, in addition to the other remedies available to FSA under clause 4.4, FSA will be entitled to demand immediate delivery of the outstanding quantity of the Products and/or reject the entire delivery or future delivery of the outstanding Products and reduce the Price accordingly for any outstanding quantity rejected.

 

4.8    If more than the quantity of the Products specified in the Purchase Order or otherwise agreed is delivered, FSA will be entitled to (i) reject such oversupply and charge the Supplier, including by set-off against payment of the Price, its cost of storage, handling and re-delivery of such oversupply, and/or (ii) accept such oversupply or any portion thereof and pay that portion of the Price equal to the oversupply in proportion to the quantity of Products ordered or otherwise agreed.  FSA is entitled to return any Goods delivered greater than the quantity specified in the Purchase Order at the Supplier’s sole risk and expense.  FSA is not obliged to return any oversupply rejected and if the Supplier does not remove such oversupply within 10 days of notification by FSA of rejection, FSA shall be entitled to treat such oversupply as forfeited by the Supplier and to dispose of or store at the Supplier’s expense, with the right to treat them as forfeited at any time thereafter with notice to the Supplier.

 

4.9    If due to special circumstances, FSA is not able to receive the Products at the time agreed, the Supplier shall postpone the delivery at FSA’s request, for reasonable time as stated by FSA.

 

5. PACKAGING AND TRANSPORT

 

5.1    Each delivery or consignment of Product must include a packing note quoting the Purchase Order number and must be marked in accordance with FSA’s instructions, and any applicable regulations or requirements of the carrier.

 

5.2    The Supplier must provide sufficient documents to enable FSA to identify the nature and quantity of the Products delivered including a material safety data sheet in accordance with relevant Safe Work Australia requirements.  All delivery documents must include a delivery docket which must state (i) the Purchase Order number; (ii) a description of the Products delivered; and (iii) the quantity of Products delivered.

 

5.3    Products must be properly packaged to ensure they reach their destination in an undamaged condition, and if the Supplier provides transport, be transported in a manner which ensures arrival in good condition and safe unloading.  The Supplier is responsible for compliance with all national, international and other regulations concerning packaging and transport, by the Supplier as well as by carriers contracted by or on behalf of the Supplier.

 

5.4    FSA may advise, to the best of its knowledge but without assuming any responsibility, the Supplier in the matter of packaging, transport as well as all applicable regulations and provisions.

 

5.5    If the Products or some part of the Products are lost or damaged in transit, the Supplier will replace the lost or damaged Products at no cost to FSA.

 

5.6    FSA is not obliged to return to the Supplier any packaging, or packing materials for the Products, whether or not any Products are accepted by FSA.  IF FSA requests, the Supplier must take back the packaging material used by the Supplier, at the expense and risk of the Supplier.

 

5.7    FSA is entitled to refuse delivery of the Products in the case of non-compliance with any of the provisions of clause 5 including maximum shelf life and expiry dates on the label.  Acceptance by FSA is not to be regarded as a waiver by FSA of any of its rights in relation to the Supplier’s non-compliance with any of the provisions of this clause 5.

 

6. PRICE OF PRODUCTS

 

6.1    The Price of the Products is as stated in the Purchase Order, and unless expressly stated otherwise includes all charges for packaging, packing, shipping, carriage, inspection, testing, equipment, insurance and delivery of the Products to the Delivery Destination and any duties, taxes (except GST), imposts or levies, royalties, and all amounts payable for the use of intellectual property (including licences) and moral rights consents.

 

6.2    No increase in the Price may be made (whether on account of increased material, labour or transport costs, fluctuation in rates of exchange or otherwise) without the prior written consent of FSA.

 

6.3    If after FSA has issued a Purchase Order, the Supplier reduces its prices or grants better conditions, the prices and conditions effective at the date of delivery shall apply.

 

7. DELIVERY COSTS, RISK AND TITLE

 

7.1    If the Agreement incorporates the Incoterms 2010 (or more recent version) (Incoterms) the Agreement will be governed by those Incoterms.  If the Agreement does not incorporate Incoterms, then clauses 7.2 and 7.3 shall apply unless stated otherwise in writing.

 

7.2    The Supplier is responsible for the transport and delivery of the Products to the Delivery Destination and shall bear all related transport costs and other costs necessary to fulfil its obligations under this Agreement except as stated otherwise or confirmed by FSA in writing.

 

7.3    Risk of damage to or loss of the Products (excluding any damage or loss caused by any defect in the Products existing prior to completion of delivery) shall pass to FSA upon acceptance of the Products by FSA in accordance with this Agreement.  In the case of the return of the Products in accordance with clause 12, risk reverts to the Supplier immediately upon the Products leaving the Delivery Destination or the custody and control of FSA and title reverts to the Supplier upon reimbursement of the Price by the Supplier.

 

7.4    Title to the Products will pass to FSA upon delivery and acceptance of the Product by FSA in accordance with this Agreement.

 

8. INVOICES AND PAYMENT

 

8.1    The Supplier must submit a valid tax invoice for each delivery of Product setting out (i) the Purchase Order number; (ii) the Products supplied as at the date of the invoice; (iii) the Price of the Products; and (iii) the Delivery Destination and Delivery Date.

 

8.2    Unless otherwise stated in this Agreement, FSA will pay the invoice within 90 days from the end of the month of date of invoice, or at a time otherwise agreed by the parties and stated on the Purchase Order.  FSA will not be obliged to settle an invoice in the following circumstances:

 

• FSA retains part of the Price as provided in this Agreement; or

 

• FSA disputes the invoice, in which case FSA is entitled to withhold payment of the full invoice amount until the dispute is resolved.

 

8.3    FSA is entitled to deduct and set off any sums owed by FSA to the Supplier from any moneys due to the Supplier by FSA.  This does not limit of affect FSA’s right to recover those amounts in other ways.

 

8.4    Payment will be made by electronic funds transfer or cheque. The Supplier is responsible for providing FSA with the correct information regarding its bank account and with all other information necessary to enable FSA to execute the payment.  If the Supplier has not provided FSA with an ABN, FSA is entitled to withhold from any payment made to the Supplier such amounts as are required for FSA to comply with the provisions of any tax legislation.

 

8.5    FSA must pay to the Supplier an amount equal to any GST payable for any supply of Products.  This GST compensation is payable on the date the GST-exclusive price for the supply or performance is due under clause 8.2.

 

9. INSPECTION AND TESTING

 

9.1    FSA may, at its option may, reject and return at Supplier’s risk and expense, or retain and correct, any Supplies that fail to meet the Product requirements as set out in the Purchase Order or these Standard Terms even if the non-conformity does not become apparent until the processing and /or usage stage.  If FSA elects to correct the Supplies, it will consult with Supplier on the method of correction.  Supplier will reimburse FSA for all expenses resulting from rejection or correction.

 

9.2    At any time, after written notice by FSA to the Supplier, the Supplier will provide FSA and its agents during normal office hours with access to all premises of the Supplier and of any sub-contractor (Premises), in order to enable FSA to inspect and test the Products during engineering, manufacturing, processing or storage at the Premises prior to dispatch or delivery, and the Supplier shall provide FSA with all facilities and equipment reasonably required for inspection and testing.

 

9.3    If tests are specified for the Products to be supplied, the Supplier shall inform FSA not less than one week in advance of the date on which the Products will be ready for testing and shall agree with FSA a date for the tests.  The Supplier shall bear the costs of those tests.

 

9.4    If in the course of testing or auditing, FSA is not satisfied that the Products will comply with the Agreement, FSA is entitled to reject any non-conforming Products, and the Products shall be re-provided at no additional cost to FSA.  If at FSA’s discretion it is necessary to repeat the tests or conduct further test, the Supplier will bear the costs of any additional testing.  The Supplier’s failure to comply with the terms of this clause shall constitute a material breach of this Agreement.

 

9.5    Any such inspection or testing according to clauses 9.2, 9.3 or 9.4 will not relieve the Supplier of any obligations contained in the Agreement or required by law.

 

10. INSURANCE

 

10.1         The Supplier must take out and maintain during the term of this Agreement and any additional period, the following insurance policies:

(a)           public, environmental and product liability insurance with sum insured of not less than $20 million for each occurrence;

(b)           transit insurance of not less than the replacement value of the Products plus 10 per cent; and

(c)           any other insurance reasonably required by FSA from time to time.

 

10.2         The Supplier must ensure that FSA’s interests are duly noted in the insurance policies set out in clause 10.1.

 

10.3         The Supplier must upon request by FSA provide evidence to FSA that the insurances referred to in clause 11.1 are in place and current.

 

10.4         Subclauses 10.1 to 10.3 shall survive the termination or expiration of this Agreement.

 

11. WARRANTIES

 

11.1         The Supplier represents and warrants to FSA that:

(a)           the Supplier has the right to sell and full title to all Products, and that the Products are and will remain free and clear of any encumbrances and Security Interests;

(b)           the Products or their importation, supply, use or resale by FSA will not infringe any Intellectual Property Right, including those of any third party;

(c)           the Supplier holds all relevant import licences, marketing approvals, registrations, consents or authorities necessary for the performance of the Agreement;

(d)           FSA will have full benefit of any manufacturer’s warranties and any other usual trade warranties that may apply to the Products;

(e)           the Products comply with all relevant standards, good industry codes or practices, applicable laws, regulations;

(f)            all substances in the Products are registered and authorised to the extent required by any applicable law or regulation providing for registration or authorisation requirements;

(g)           all Products are of satisfactory and merchantable quality and fit for any purpose held out by the Supplier at the time the Purchase Order is placed, or for the purpose for which the Products are commonly used;

(h)           the Products are free from defects in design, manufacture, assembly and workmanship and contamination from compounds not included in registered formulation;

(i)            the Products comply with any specification/ description contained in the Purchase Order and possess any agreed or guaranteed properties;

(j)            the Products correspond with any relevant sample;

(k)           the Products are new unless otherwise specified in the Agreement and of recent manufacture;

(l)            the expiry date of the Products is a minimum of 36 months from the date of manufacture; and (m)       the Supplier is aware of and has complied with all relevant anti-bribery and corruption laws in connection with the performance of this Agreement.

 

11.2         FSA will not be deemed to have accepted any Products until FSA have had reasonable time to inspect the Products and/or test them for obvious defects following delivery but in any case not less than 14 days after delivery.  Signed delivery documents will not mean acceptance by FSA.

11.3         The Supplier acknowledges that FSA has entered into this Agreement in reliance upon the warranties set out in clause 11.1.

 

12. REMEDIES, LIABILITY AND INDEMNIFICATION

 

12.1         If in the reasonable opinion of FSA any Products are not supplied in accordance with this Agreement or do not conform with the warranties in clause 11.1, FSA shall be entitled to one or more of the following remedies:

(a)           to reject all or some of the Products;

(b)           require the Supplier to promptly repair the Products or supply replacement Products at the Supplier’s cost and in accordance with the Agreement;

(c)           to reduce the Price in consideration of the reduced value of the Products due to their defectiveness;

(d)           to treat the Agreement as terminated due to the Supplier’s breach;

(e)           to require the Supplier to promptly reimburse FSA for the portion of the Price paid for the rejected Products, plus any costs incurred by FSA in connection with the rejection of such Products.

(f)            to replace, repair and/or remedy the defective Products, and to recover all associated costs from the Supplier.

 

12.2         Without prejudice to any other right or remedy of FSA, the Supplier shall indemnify and hold harmless FSA and its affiliates, officers, employees and directors against any direct, indirect or consequential liabilities, loss, damages, injury, costs and expenses, including but not limited to legal and other professional fees and expenses, arising as a result of:

(a)     any breach by the Supplier of its warranties, these Terms and Conditions or the agreement in respect of the Supplies (whether constituted by one or more documents); or

(b)     any negligent or wilful act or omission on the part of the Supplier.

.

12.3         Each indemnity in the Agreement is a continuing obligation separate and independent from the Supplier’s other obligations and survives expiry or termination of the Agreement.

 

12.4         Notwithstanding any other provision of these Terms and Conditions, the Purchase Order or any other documents comprising the Agreement, FSA shall not be liable to the Supplier, in any circumstance or for any cause (whether in contract, tort or otherwise) including negligence for loss of anticipated profit, consequential loss, general, specific or other damages.

 

13. INTELLECTUAL PROPERTY

 

13.1         All Intellectual Property Rights produced by the Supplier in connection with the performance of its obligations under the Agreement shall vest in FSA upon creation or acquisition, and if necessary, the Supplier must, and must ensure its relevant personnel does, assign or transfer all such Intellectual Property Rights to FSA.

13.2         FSA grants the Supplier an irrevocable and royalty-free licence to use those Intellectual Property Rights required for the purpose of performing its obligations under the Agreement.

13.3         Each Party will retain sole ownership of all Intellectual Property Rights owned by that Party prior to the date of the Agreement, or acquired or developed by that Party independently of the performance of the Agreement and not acquired by the Agreement but used in the performance of the Agreement.  The Supplier grants to FSA an irrevocable, perpetual, worldwide and royalty free licence to use any Intellectual Property Rights not vested in FSA that is necessary for FSA to have the benefit of the Products.

13.4         FSA’s Intellectual Property shall be held by the Supplier in safe custody at its own risk and maintained in good condition by the Supplier until returned to FSA on demand.

13.5         FSA’s Intellectual Property Rights shall not be disposed of or used otherwise than as necessary for the Supplier to perform under the Agreement.

13.6         The Supplier shall be liable for any loss or damage to FSA’s Intellectual Property Rights whilst in the Supplier’s trust, care or control.

 

14. TERMINATION

 

14.1         FSA is entitled to cancel any Purchase Order in respect of all or part of the Products by giving notice to the Supplier prior to delivery, in which event FSA’s sole liability will be to pay the Supplier’s costs incurred to date in relation to the placement of the Purchase Order.

14.2         FSA may by written notice to the Supplier terminate the Agreement at any time without cause, in whole or in part.  Upon receipt of a notice of termination the Supplier must cease performance of the Agreement and take all steps to minimise loss arising from termination.  FSA will pay the Supplier’s fair and reasonable compensation for work in progress, but such compensation shall not include loss of anticipated profits or any consequential loss. FSA will not be liable for any other damages or compensation for the termination.

14.3         FSA shall be entitled to terminate the Agreement without liability to the Supplier, by giving notice to the Supplier at any time if:

(a)           the Supplier is unable to meet its obligations under, or commits a breach of this Agreement;

(b)           the Supplier ceases, or threatens to cease carrying on business;

(c)           the Supplier is unable to pay its debts as and when they fall due

(c)           there is a change in control (as defined in the Corporations Act 2001) in relation to the Supplier; or

(d)           the Supplier or its representatives engage in conduct that, in FSA’s reasonable opinion endangers health and safety, or FSA’s reputation.

14.4         Upon termination of this Agreement, all rights and duties accrued prior to termination shall survive termination, including but not limited to clauses 1 to 13 and 15 to 23.

 

15. MODIFICATION

 

The Supplier must not make any change to the Products, processing, packaging, transport, time or place of delivery, unless specifically requested or approved by FSA in writing.

 

16. CONFIDENTIALITY

 

16.1         The Supplier must:

(a)           keep confidential any information provided by or on behalf of FSA in connection with this Agreement, including but not limited to any technical or commercial know-how, inventions, processes or initiatives which are of a confidential nature provided by or on behalf of FSA, any Specifications, and any other confidential information concerning FSA’s business or its Products (Confidential Information);

(b)           disclose such Confidential Information to those employees, agents or subcontractors who need such information in order to perform the Supplier’s obligations under this Agreement;

(c)           use due care and take appropriate measures to ensure that those employees, agents or subcontractors adhere to the terms of this Agreement.

16.2         This clause 16 shall survive termination of this Agreement and any breach of this clause shall constitute a material breach under clause 14.3 of this Agreement.

 

17. MISCELLANEOUS

 

17.1         Relationship between Parties The relationship between FSA and the Supplier is one of independent seller and buyer, and nothing in this Agreement will create a relationship of joint venture, trust, employment, agency or partnership.

17.2         Waiver: No delay or failure by FSA to exercise any right or remedy operates as a waiver unless it is in writing and relates only to the specific instances identified.

17.3         Severability: if any provision of this Agreement is held to be invalid or unenforceable in whole or in part by a competent court, the validity of the other provisions of the Agreement shall not be affected.

17.4         Force Majeure Event:

• Neither FSA nor the Supplier will be liable for a failure to perform that arises from causes or events beyond its reasonable control. In this clause Force Majeure Event shall be defined as any occurrence which creates a failure or delay in the performance of a Party’s obligation under the Agreement after reasonable care and proper precautions have been carried out, including but not limited to acts of God, storm, fire, flood, war, riot, strike or any other unforeseeable circumstances beyond the control of the affected Party.
• The Party claiming the Force Majeure Event shall give notice in writing to the other party as soon as possible after occurrence of the event, but in any case no later than 14 days after the event.
• In the event of a Force Majeure Event, FSA may at its option:

1. acquire possession of all finished goods, work in process, and parts and materials produced or acquired for the Supplies under a Purchase Order, and Supplier will deliver such articles to FSA;
2. obtain the Products from an alternative Supplier for the duration of the Force Majeure Event and a reasonable period thereafter;

• defer the date of delivery or payment or change the volume of Products ordered.

17.5         Written Form: Any amendments to this Agreement shall be made in writing and agreed to by the authorised representatives of FSA and the Supplier.   

17.6         Notices:  Any notices required under this Agreement shall be in writing addressed to the Parties at the address specified in the Purchase Order or Agreement, and once given shall be deemed to be made within 4 business days of being posted (in the case of a letter) or when received (in the case of a facsimile or electronic mail transmission).

17.7         Jurisdiction and Venue: This Agreement is governed by the laws of New South Wales and the parties shall submit to the exclusive jurisdiction of the courts of New South Wales.

17.8         Assignment:

The Supplier may not assign, transfer, subcontract or novate any right under this Agreement without the prior written consent of FSA, which if granted shall not relieve the Supplier of its responsibilities under this Agreement.  The Supplier consents to FSA assigning, transferring or novating any or all of its rights under this Agreement to any person at any time.

17.9         Entire Agreement: This Agreement represents the complete and final agreement between the Parties, and any prior Agreement, whether written or oral, shall be superseded by this Agreement.