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Supplier Terms & Conditions

FLAVOUR CREATIONS PTY LTD ABN 73 078 198 320

GENERAL PURCHASING TERMS AND CONDITIONS

1  DEFINITIONS
a)  Flavour Creations means Flavour Creations Pty Ltd (ABN 73 078 198 320). 
b) Hazardous Substances and Dangerous Goods means substances are those that, following worker exposure, can have an adverse effect on health. Examples of hazardous substances include poisons, substances that cause burns or skin and eye irritation, and substances that may cause cancer. Many hazardous substances are also classified as dangerous goods.
c) Intellectual Property means all and any patents, patent applications, trademarks, service marks, trade names, registered designs, unregistered design rights, copyrights, know how, trade secrets, domain names, internet addresses, rights to have information kept confidential, goodwill in relation to any of the foregoing and all and any other intellectual property rights, whether registered or unregistered and whether created before on or after the date of this agreement.
d) Background Intellectual Property means any intellectual property that Flavour Creations owns or controls prior to, or outside of, this contractual agreement and that may be necessary to its relatedThis includes any patents or pending applications, copyrightable materials, as well as other proprietary materials possessed by Flavour Creations.  This includes any materials for which a party has a valid license from a third party to use for their activities.
e) Proprietary Information means trade secret information of any kind, including but not limited to trade secret information of a business, planning, marketing, or technical nature, disclosed to the Receiving Party in connection with this Agreement, whether disclosed in written or documentary form or orally or visually, or by models, tools, or other hardware. The Receiving Party shall hold in confidence and not disclose to any third party, nor to any employee (except on a “need to know” basis) all Proprietary Information disclosed to it by the Disclosing Party which is identified by the Disclosing Party at the time of disclosure as being Proprietary Information.
f) Supplier means a vendor or enterprise that contributes goods or services. 
g) Supplies means the specific raw materials, goods or services ordered. 
h) Certificate of Currency means documentary evidence that an insurance cover is in place.
i) Latent Defects means a fault, a hidden defect, hidden flaw, weakness or imperfection in the Supplies that has not or could not have been discovered by a reasonably thorough inspection before the sale. This entitles the purchaser to receive a full refund or a replacement without a defect. 
j) Order means an order for Supplies or Products (including the quantity and requested delivery date) by Flavour Creations. 
k) Certificate of Analysis means an authenticated document issued by the Supplier that ascertains the Supplies has met its product specification and quality and provides the details of the laboratory analysis. 
l) PMSI means a purchase money security interest as defined in the PPSA. 
m) PPSA means the Personal Property Securities Act 2009 (Cth). 
n) PPSR means the Personal Property Securities Register under the PPSA. 
o) Product Specifications means the definition of the identity, the features and the characteristics of the Product provided by the Customer to the Manufacturer.
p) Purchase Order means the written or electronic purchase order received by the Manufacturer from time to time for the purchase of Products in the form approved or accepted by the Manufacturer from time to time. 
q) Purchase Price means the price ex works for the Products notified by the Manufacturer from time to time.

2  APPLICATION
2.1. These general purchasing conditions apply to all Orders placed by Flavour Creations whether relating to a purchase or purchases, the rental of goods or the provision of services.
2.2. Subject to clause 2.3, the Order contains the entire agreement of the parties in relation to its subject matter and can only be varied in writing signed by all parties.
2.3. In the event that the parties have negotiated, agreed and signed alternative terms and conditions for the Supplies, such alternative terms and conditions prevail over the terms and conditions of this order.

3  ORDERS
3.1.  Any provision of Supplies must be the subject of an Order issued by Flavour Creations and signed by its properly authorised representative.
3.2. The Supplier accepts the Order by signing and returning a copy of the Order, or otherwise acknowledging the Order, or signifying its acceptance in some other way within seven (7) days from the date of the order. If no acknowledgement is received within that period, the Supplier will be deemed to have accepted the Order.
3.3. By accepting the Order, the Supplier acknowledges that it has received all information required to fulfil its obligations. Any additional information must be requested before acceptance of the Order.
3.4. Flavour Creations reserves the right to cancel the Order in accordance with clause 12.

4  PACKAGING & DELIVERY
4.1. All food products supplied must conform to the requirements of the FSANZ Food Standards code and other statutory and regulatory requirements as prescribed in addition to the criteria defined within the specification. 
4.2 Packaging must:
    a) conform to the specifications in the Order, 
    b) conform to instructions given by Flavour Creations from time to time; and
    c) comply with usual industry practice, applicable customs, export, import, quarantine and other applicable laws and requirements, including where appropriate, those regulating the dispatch of hazardous goods or cargo.   
4.3. In addition to the applicable rules and regulations, all packaging must prevent damage or deterioration of the Supplies in the course of loading, transit and unloading.
4.4. Packing and delivery slips or advice notes shall accompany all deliveries of the Supplies and are to include the Order’s reference number. 
4.5. Certificate of Analysis (CofA) or Certificate of Conformance (CofC) documentation is required to be provided to Flavour Creations either prior to or with the delivery of goods. Where these documents are provided electronically they are to be sent via email directly to QA@flavourcreations.com.au. 
4.6.  Subject to Clause 2.3, based on the Supplies Specification Sheet, a minimum of 75% shelf life must remain of the Supplies delivered. 
4.7.  Flavour Creations retains the right to accept products with less than 75% remaining shelf life where the remaining shelf life is sufficient for Flavour Creation’s purposes and agreement is made in writing prior to delivery.
4.8.  Flavour Creations reserves the right to sample, test or inspect food products and packaging on receipt. In the event Flavour Creations provides a written request for inspection of the Supplies prior to delivery, the Supplies are not to be dispatched from the Supplier’s premises before an approved inspection is carried out and an inspection certificate evidencing such inspection is to be attached to the Supplies on delivery.

5  DELIVERY, RISK AND TITLE
5.1. The delivery time is of the essence of the performance of the Supplier’s obligations. The Supplier must inform Flavour Creations as soon as it becomes aware of any delay or potential delay regarding the delivery of the Supplies.
5.2. The Supplier agrees to take all necessary steps to avoid or reduce any delivery delay.
5.3. Subject to clause 5.4, ownership and risk in the Supplies passes to Flavour Creations upon completion of delivery to Flavour Creations. Delivery of the Supplies is completed when the Supplies are in the place nominated by Flavour Creations on the Order or in writing as the place of delivery and a person authorised by Flavour Creations has signed a delivery docket acknowledging receipt of the Supplies in satisfactory condition.
5.4. Where the Order provides for progress payments prior to delivery, ownership in the Supplies, including unfinished Supplies, passes to Flavour Creations upon the first progress payment being made. Risk remains with the Supplier until delivery.
5.5.  Delivery of the Supplies is to be in accordance with the Order and at the time nominated by Flavour Creations. Flavour Creations may at any time amend the times and/or manner of delivery of the Supplies.
5.6.  No later than 7 days prior to the delivery of the Supplies the Supplier is to advise Flavour Creations of any maintenance requirements and special storage conditions for the Supplies. 

6 PRICES, GST, INVOICING AND PAYMENT TERMS  
6.1. Unless otherwise stated in the Order, the Price is fixed, not subject to rise and fall and includes the cost of packaging and delivery.
6.2.  The price is exclusive of any GST, excise, consumption or other tax or duty applicable. The Supplier must pay all stamp duties assessed or applicable on or in relation to the Order.
6.3.  Invoices are payable Net 30 EOM after receipt of a correctly rendered invoice. Incomplete invoices will not be processed
6.4. Invoices are to be issued to the Flavour Creations address appearing in the Order and are to include the corresponding Order reference number and identification details of the Supplies. Where applicable, a tax invoice, valid under the Goods & Services Act 1985, must be provided.
6.5. Flavour Creations reserves the right to query any invoice presented by the Supplier and to require correction of any error, even if the invoice relates to a payment already made or specifies a time limit for raising queries.
6.6. Despite any other provision in the Order, Flavour Creations reserves the right to deduct or set off amounts owed by the Supplier to Flavour Creations from moneys due by Flavour Creations to the Supplier.

7 WARRANTIES
7.1.  For a period of 12 months from the date of delivery of the Supplies and for a further period of 12 months in the case of Latent Defects, the Supplier warrants that:
a. Despite any inspection by Flavour Creations or Flavour Creations' agent and despite delivery of the Supplies, the Supplies are:
     i. Of merchantable quality; and
     ii. Conform to the requirements of the Order, including any technical or operational requirements advised by Flavour Creations; and
     iii. Are fit for the purposes for which Flavour Creations proposes to use the Supplies; and
     iv. Are free from all defects and deficiencies whether in design, performance, materials or workmanship; and
     v. Correspond to any samples supplied by the Supplier to Flavour Creations. 
7.2 For the purposes of this clause, the Supplier is deemed to know the purposes for which Flavour Creations proposes to use the Supplies and acknowledges that Flavour Creations is relying on the Supplier's judgement that the Supplies are reasonably fit for purposes.
    a) The Supplies, their design, construction, ingredients, quality and packaging comply with all relevant requirements, regulations and laws in force at the places of manufacture, shipment and delivery; and
    b. The Supplies do not infringe the Intellectual Property rights of any person; and
    c. That none of the Supplier, its subcontractors or any other person has a lien, mortgage, charge or other security interest of any type in or over any of the Supplies. 

8  INTELLECTUAL PROPERTY RIGHTS
8.1. Ownership in all Intellectual Property specifically created for the purpose of the provision of the Supplies to Flavour Creations under this Order vests in Flavour Creations. In the event that such rights cannot automatically vest in Flavour Creations, the Supplier undertakes to do all things required by Flavour Creations in connection with the transfer of such rights to Flavour Creations.
8.2. Ownership of all Background Intellectual Property incorporated in the Supplies remains unchanged. The Supplier hereby irrevocably and unconditionally grants to Flavour Creations, a royalty-free, non-exclusive, worldwide, perpetual license to use any Background Intellectual Property (including the right to sub-contract) to the extent that it forms part of or is integral to the Supplies or other items created by the Supplier in relation with the provision of the Supplies in connection with the Order.

9  LIMITATION OF LIABILITY
9.1. The Supplier indemnifies and holds harmless Flavour Creations in respect of all actions, suits, proceedings, claims, demands, losses, costs, charges and expenses (including any indirect, incidental, special or consequential loss, any loss of revenue, loss of profits, loss of business opportunities, loss of anticipated savings, damage to goodwill and damage to reputation and also including the cost of settling any pending or threatened proceedings, including legal expenses on a solicitor and own client basis) arising from or incurred by reason of:
    a) Any breach of the Order or negligence by the Supplier;
    b) Any loss or damage to the property or injury or death to the persons caused or contributed to directly or indirectly by the Supplier in connection with the Order or the Supplies;
    c) Any actual or alleged infringement or breach of any Intellectual Property arising out of or from the sale or use of the Supplies or their incorporation in other things; 
    d) Any claim made against Flavour Creations by any third party arising directly or indirectly from or as a result of the Supplier's failure to deliver the Supplies in accordance with the requirements of the Order. 

10  CONFIDENTIALITY / PUBLICITY
10.1. For the period of 10 years from the date of this Order, the Supplier hereby covenants that the Proprietary Information: 
    a) Subject to clause 10.1 (d), must not, without prior written consent of Flavour Creations, be disclosed, revealed, copied, published, reproduced, or in any way used for any purpose other than for performing the Supplier's obligations under this Order; and
    b) Will be kept protected, in a secure place and in strict confidence; and 
    c) Will, on request by Flavour Creations at any time, be returned to Flavour Creations, or destroyed in the manner requested by Flavour Creations. Return or destruction will extend to any copies of the material in questions and any records containing references to Proprietary Information; and
    d) Will not be disclosed nore caused to be disclosed directly in indirectly to any third party, except to the Supplier's employees and subcontractors who have a need to know for the purpose of fulfilling its obligations under this Order, provided that the Supplier informs such employees and/or subcontractors of the confidential nature of the Proprietary Information for other purposes.
10.2. The Supplier is not to, in any manner, reveal, advertise or publish the fact that it has contracted with Flavour Creations or any details in relation to the Order.
10.3.The expiry or termination of this Order or the delivery of the Supplies does not relieve the Supplier or its employees, representatives and subcontractors from complying with the obligations imposed with respect to the use and protection of the Proprietary Information.

11  INSURANCE 
11.1.The Supplier will effect and maintain at its cost any policies of insurance specified in the Order but in any event, sufficient insurance to cover its various liabilities in connection with the Order.
11.2. The Supplier undertakes to insure and keep insured at all times the Supplies for their full replacement value with a reputable insurer and provide Flavour Creations with a copy of the relevant Certificate of Currency upon request.
11.3. Should the Supplier be required to enter Flavour Creation’s premises or worksites to carry out any work related to this Order, prior to entry the Supplier must have effected at its cost adequate workers’ compensation insurance with a principals indemnity extension (where applicable in the relevant jurisdiction) and public liability insurance in sufficient amounts to cover its liabilities in connection with the Order.

12  CANCELLATION AND TERMINATION
12.1. Without prejudice to any of its rights, powers or remedies, Flavour Creations may terminate the Order immediately without incurring any liability to the Supplier if:
    a) The Supplies, or any portion of the Supplies, are not delivered within the time or times nominated or agreed by Flavour Creations;
    b) There is any breach of the Order or these Terms & Conditions; or
    c)  The Supplier becomes insolvent, bankrupt, goes into administration, receivership or liquidation, is made subject to any petition or proceedings taken for the Supplier’s compulsory winding up, is made subject to the supervision of a court, enters into a scheme or arrangement with its creditors or becomes the subject of any order or proceeding relating to its solvency.
12.2. On termination Flavour Creations may;
    a) Refuse to accept any undelivered Supplies;
    b) At the Supplier’s risk and expense, return to the Supplier any of the delivered Supplies which cannot be used without the undelivered Supplies. In such an event, the Supplier indemnifies Flavour Creations for any moneys paid in respect of the returned Supplies;
    c) Enter into any premises and take away all finished and unfinished Supplies, materials and things in which Flavour Creations has property and recover all moneys paid by Flavour Creations in respect of those Supplies; or
    d) Institute proceedings, including but not limited to, claiming compensation by way of damages in respect of any loss or damage suffered or  sustained directly or indirectly by Flavour Creations including consequential loss and loss of profits.

13  HEALTH, SAFETY, SECURITY AND ENVIRONMENT
13.1. The Supplier, in the performance of its obligations in relation to this Order must:
    a) Comply with all applicable health, safety and environmental obligations in force in the State, Territory or other jurisdictions in which the Order, or a part of the Order, is, or is to be, carried out; and
    b) Comply and ensure that its employees, representatives and subcontractors comply with all Flavour Creations health, safety, environmental and site security policies.

14  HAZARDOUS SUBSTANCES
14.1. All Hazardous Substances and any items containing them forming part of the Supplies or related to the Order must bear appropriate labels and clearly identify the presence and nature of the substances, the associated hazards and appropriate safeguards in compliance with the ASCC National Standards and Codes of Practice for Hazardous Substances and Dangerous Goods. In particular, but not limited to, the National Code of Practice for the Control of Workplace Hazardous Substances [NOHSC: 2007(1994)], and National Model Regulations for the Control of Workplace Hazardous Substances [NOHSC: 1005(1994)] as amended from time to time.
14.2. Hazardous Substances are to be transported in accordance with applicable laws and regulations.

15  COMPLIANCE WITH LAWS, REQUIREMENTS AND GUIDELINES
15.1. This contract is governed by and should be construed according to the laws of the State of Queensland.  The  parties will submit to the non exclusive jurisdiction of the Courts of the State of Queensland in the event of a dispute.

16  GENERAL
16.1. No conduct of Flavour Creations (including a failure to exercise, or delay in exercising, a right) operates as a waiver of a right of Flavour Creations or otherwise prejudices or prevents the exercise of a right of Flavour Creations.
16.2. Notices must be given to a party at the address set out on the Order or as otherwise notified by the parties in writing.
16.3. The Supplier may not sub-contract, transfer, assign, hold in trust for another, or otherwise dispose of all or any of its rights, obligations or interests under this Order without the prior written consent of Flavour Creations. Such consent is not to be unreasonably withheld.
16.4In the event that Flavour Creations provides equipment and/or tools to the Supplier, these remain the property of Flavour Creations and are not to be modified, altered, destroyed, damaged or used for any purposes other than for the fulfilment of the Order. The Supplier is responsible for their safe custody and proper maintenance while in its custody.

17  PERSONAL PROPERTY SECURITIES ACT
17.1.  Notwithstanding anything to the contrary contained in these Terms & Conditions, the PPSA applies to these Terms and Conditions.
17.2.  For the purposes of the PPSA:
    a)  terms used in clause 17 that are defined in the PPSA have the same meaning as in the PPSA;
    b)  these Terms are a security agreement and Flavour Creations has a Purchase Money Security Interest in all present and future goods (being the Supplies) supplied by the Supplier to Flavour Creations and the proceeds of the goods;
    c)  The security interest is a continuing interest irrespective of whether there are monies or obligations owing by Flavour Creations at any particular time; and
    d) The Supplier must do whatever is necessary in order to give a valid security interest over the Supplies which is able to be registered by the    Flavour Creations on the Personal Property Securities Register.
17.3. The security interest arising under this clause 17 attaches to the goods (being the Supplies) once an Order has been accepted by the Supplier pursuant to clause 3 of these Terms & Conditions.
17.4.  Where permitted by the PPSA, the Supplier waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121, 130, 132, 135 and 157 of the PPSA.
17.5.  Flavour Creations and the Supplier agree to contract out of and nothing in the provisions of sections 96, 115 and 125 of the PPSA will apply to these Terms.
17.6. To the extent permitted by the PPSA, Flavour Creations agrees that:
    a) the provisions of Chapter 4 of the PPSA which are for the benefit of Flavour Creations or which place obligations on the Supplier will apply only to the extent that they are mandatory or the Supplier agrees to their application in writing; and
    b) where the Supplier has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
17.7. The Supplier must immediately upon Flavour Creations request:
    a) do all things and execute all documents necessary to give effect to the security interest created under an Agreement; and
    b) procure from any person considered by Flavour Creations to be relevant to its security position such agreements and waivers (including as   equivalent to those above) as Flavour Creations may at any time require.  
17.8. The Supplier may allocate amounts received from Flavour Creations in any manner the Supplier determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods (being the Supplies).
17.9. For the purposes of section 275(6) of the PPSA, the parties agree and undertake that these Terms & Conditions and any information pertaining to the Supplies shall be kept confidential at all times.  
17.10 The Supplier agrees and authorises Flavour Creations or its lawyers to register its purchase money security interest on behalf of Flavour Creations pursuant to this clause of the Terms & Conditions including registering Flavour Creations as a secured party group.
17.11 Flavour Creations or its lawyers are not liable to the Supplier in any way arising under or in connection with any registration (including a failure to register at all or in a timely way, or any error in the registration) it effects in relation to the Supplier under this clause.

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