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Terms & Conditions of Supply – Birch & Waite Foods Pty Ltd ABN 93 003 232 844

These Terms and Conditions apply to all supplies by Birch & Waite Foods Pty Ltd (Birch & Waite) subject to: any changes made by Birch & Waite and notified to the Customer before any subsequent order is placed; and any specific terms agreed in writing or in an electronic form between Birch & Waite and the Customer for any particular order or generally. The Customer acknowledges having read and understood and agreed to these Terms and Conditions before placing any order with Birch & Waite.

1. Definititions

1.1 In these terms and conditions of supply, unless the contrary intention appears:

Birch & Waite means Birch & Waite Foods Pty Limited (ABN 93 003 232 844);

Customer means the person or entity who places an order for products from Birch & Waite either by telephone, facsimile, email, in person, through a distributor or otherwise;

Exclusive Products means a product manufactured solely or specifically for a Customer;

2. Price

2.1 All supplies by Birch & Waite are, in the absence of any express agreement to the contrary with the Customer, made in accordance with Birch & Waite’s price list at the time of order.

2.2 Where Birch & Waite manufacture Exclusive Products for the Customer and the price is based on a standard order quantity, the Customer will be liable for ordering the full standard order quantity. Unless otherwise stated, the prices do not include the costs of delivery, transportation and insurance, or any applicable taxes, such as goods and services tax which shall be payable by the customer.

3. Orders

3.1 Birch & Waite will use all reasonable efforts to fulfil orders but will not be liable for any loss or damage arising from non-availability of stock.

3.2 Order cancellations will not be accepted, however Birch & Waite may at its discretion reschedule delivery to suit the customer’s requirements, dependent upon, but not limited to, the product expiry date.

3.3 Where Birch & Waite manufacture Exclusive Products for the Customer:

3.3.1 the Customer will provide a volume forecast and expected product lifecycle with the first order for a product.

3.3.2 the Customer will incur initial set up costs including but not limited to artwork, knife and plate costs, the Customer may either pay for the initial costs on commencement of the first order, or Birch & Waite will amortise the initial costs over the Customer’s forecast volume for the lifecycle of the product or 12 months, whichever is shorter.

3.3.3 the Customer is required to provide a minimum four weeks written notice of product deletion. The Customer is also liable for residual Exclusive Products, unamortised setup costs, unique residual ingredients and unique materials whether in stock or ordered. The Customer liability will be to a maximum of three months stock except where a longer lead time or minimum economic batch sizes have been advised to the Customer in writing.

4. Payment

The Customer will send payment with order to Birch & Waite for the first 3 months or the first 3 transactions or until credit is formally approved by Birch & Waite. Payment terms for credit Customers are 30 days from date of invoice. All invoices issued by Birch & Waite must be paid in full and the Customer may not offset any amounts claimed by the Customer.

The risk of loss or damage to any products supplied by Birch & Waite will pass to the Customer for all purposes at the earlier of the time when the products are collected by a carrier engaged by the Customer and, if delivered by Birch & Waite, delivery to the Customer. The Customer must inspect all products promptly on receipt and is deemed to have accepted the products in full satisfaction of Birch & Waite’s obligations unless any claim is notified within 2 business days of delivery. If products are shipped with a managed shipping aid (eg Pallet, Pallecon etc), the movement transfer date is deemed to be the same date as the invoice date unless the parties otherwise expressly agree and claims relating to managed shipping aids must be made in writing or electronic form within seven working days of the transfer date. Birch & Waite will use all reasonable endeavours to meet any delivery date specified by the Customer and accepted by Birch & Waite, but will not be liable to the Customer for any loss or harm suffered by the Customer, including without limitation consequential loss, indirect loss or economic loss as a result of any delay in delivery or non-delivery by Birch & Waite, except and to the extent that any claim for such losses cannot by law be excluded or limited.

6. Retention of Title

Title in any products supplied by Birch & Waite will not pass to the Customer until payment in full for the products has been made.

The Customer:

6.1 acknowledges that the retention of title by Birch & Waite is a security interest in the products for the purposes of the Personal Property Security Act (the PPS Act). The rights of Birch & Waite pursuant to this clause will be in addition to any other rights which it may have against the Customer;

6.2 agrees that Birch & Waite may register its security interest in the products under the PPS Act whether generally or in respect of any particular order;

6.3 will not grant any security interest over the Products having priority over Birch & Waite’s security interest;

6.4 agrees that if payment of any invoice is not made on or before the due date or the Customer becomes subject to any form of external administration (other than the appointment of an Administrator), Birch & Waite is entitled with such force if any as is necessary to enter any premises in which the Products the subject of a security interest are located, to repossess them as the property of Birch & Waite.

6.5 acknowledges and agrees that if the customer resells the whole or any part of an order before payment in full has been made for that order, the Customer will do so as agent for Birch & Waite and will hold the proceeds of any sale and any debt owing to the Customer for any resale on trust for Birch & Waite up to the amount owing.

7. Warranties

All warranties, representations, terms and conditions which would otherwise be implied by law and which are capable of exclusion or limitation are excluded or limited to the full extent permitted by law. To the extent allowed by law the liability of Birch & Waite in respect of any products supplied to a Customer is limited to:

7.1 replacement of the products; or

7.2 payment of the cost of replacing the products or acquiring equivalent products; or

7.3 reimbursing the price paid for the products.

8. Intellectual Property

8.1 Each party will be entitled to use the Intellectual Property of the other to the extent required for the performance of that Party’s obligations to the other.

8.2 Neither Party will by virtue of the dealings between them acquire any rights in the Intellectual Property of the other except as expressly provided in these Terms and Conditions.

8.3 Intellectual Property created by a Party for the purposes of the dealings between them will be and remain the property of that Party except and to the extent only that it includes the Intellectual Property of the other Party including any third Party Intellectual Property licensed to that Party.

8.4 Intellectual Property includes without limitation menus, recipes, methods of manufacture and methods of preparation.

9. Indemnity

The Customer indemnifies and agrees to hold and keep indemnified Birch & Waite from and against any claims which might be made by third parties arising out of or in connection with the supply, use or consumption of any products supplied by Birch & Waite to the full extent allowed by law, including without limitation claims for general or specific damages, direct or indirect loss, punitive or exemplary damages, economic loss or loss in value of any asset.

10. Force Majeure

Without prejudice to any other provisions hereof, Birch & Waite shall not be liable for any delay in performance or failure to perform any of its obligations, if such performance is prevented, restricted or affected by a force majeure event or by any other cause beyond Birch & Waite’s control.

11. Miscellaneous

The parties agree that the law of New South Wales will apply to all matters relating to dealings between Birch & Waite and the Customer and the parties agree to submit to the exclusive jurisdiction of the Courts of New South Wales and, at the election of Birch & Waite only, any other jurisdiction selected by Birch & Waite.