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Terms and Conditions of Sale

(Updated September 2012)

1. In these conditions and in any contract to which these conditions apply:

a) "the Seller" means Ingredient Techniques Australia Limited (ABN 68 691 866 895 ) or such other company being a related body corporate of Ingredient Techniques Australia Limited which can accept any order from the Buyer;

b) "the Buyer" means the person who buys or has agreed to buy the Goods;

c) "the Goods" means any item of whatsoever nature which is sold by the Seller and unless the context otherwise requires, includes services of whatsoever nature which are provided by the Seller, and;

d) the "Purchase Price" means the price for the Goods specified on the Seller's invoice or any delivery docket given to the Buyer in connection with the Goods and any other charges payable in connection with the sale of the Goods. If the purchase price is not paid within agreed terms this expression shall also include interest for liquidated damages, arising as a result of payment default, which is calculated at the rate specified in clause 4(b).

2. General

These conditions shall apply to every sale made or agreed to be made by the Seller and no variation or abrogation of the same shall be effective unless it is evidenced in writing signed on behalf of the Seller. To the extent to which the terms of any order differ from these conditions of sale the acceptance thereof shall be deemed to be an offer to supply only on the terms and conditions contained herein and acceptance of the Goods thereafter shall constitute acceptance of the Goods on these conditions of sale

3. Price

a) Unless otherwise stated on the face hereof the Purchase Price is for delivery ex-works and includes the cost of basic packaging.

b) The Seller shall be entitled without notice to the Buyer to adjust the Purchase Price, whether before or after acceptance of the Goods, in the event of and to account for any increase in the cost to the Seller of supplying the Goods as the result of increases in costs of transport or insurance, or in rates of any applicable taxes in respect of the supply of the Goods including any duty, charge or levy in respect of the export or import of goods, or changes in the classification or value of goods for customs purposes, or any changes in applicable exchange rates or in the event of delays by the Buyer in providing any information or licences required by the Seller for the production, supply, dispatch or delivery of the Goods, or any other impost arising after the sale.

c) An administration and/or delivery charge may be payable by the Buyer in respect of all contracts deemed by the Seller to be of small value.

4. Payment Terms, Default and Limit

a) Unless otherwise agreed by the parties in writing, the Purchase Price shall be paid within thirty (30) days of the date of the Seller's Invoice.

b) Time for payment of the Purchase Price shall be of the essence of the contract and if the Buyer fails to pay the Purchase Price when due, the Seller may treat the contract as repudiated by the Buyer or may, until payment in full is made, suspend delivery of the Goods the subject of the contract and any Goods the subject of any other contract with the Buyer without incurring any liability whatsoever to the Buyer in respect thereof. In addition, but without prejudice to such rights of the Seller, the Buyer shall pay compounding interest on a daily balance basis to the Seller on the overdue outstanding Purchase Price at the rate of 3 per cent per annum above the Indicator Lending Rate of the Seller's banking institution ruling from time to time until the Purchase Price is paid in full. Further, all moneys owing and outstanding to the Seller on any account whatsoever by the Buyer shall become immediately due and payable at the option of the Seller if any of the following events occur.

c) the Buyer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;

(ii) the Buyer makes a scheme or compromise with its creditors;

(iii) the Buyer ceases or threatens to cease conducting its business in the normal manner and, whereby changes arise in management control, structure or legal entity of the Buyer;

(iv) the Buyer or a related company of the Buyer (within the meaning of the Corporations Law) or any Guarantor of the Buyer defaults or breaches any condition or understanding under this contract or any other contract between the Seller and the Buyer or the Seller and the related company.

d) The Seller can at any time without notice to the Buyer alter or terminate the Buyer's credit limit or terms. The Seller accepts no liability howsoever in the operation of this condition.

e) Any moneys paid by the Buyer shall be firstly applied to payment of all interest owing, secondly to any other costs which are applicable under these conditions of sale (if any) and thereafter any residual of the amount paid shall be applied against the Purchase Price of the Goods.

5. Recovery

The Seller can charge the Buyer with all reasonable expenses (including, but not limited to transportation, storage costs, collection and recovery costs and legal costs) incurred by the Seller to enforce payment of any debt owed by the Buyer to the Seller or otherwise in enforcing these terms and conditions of sale.

6. Delivery

a) Any time or date named or accepted by the Seller for completion, delivery, dispatch, shipment or arrival of the Goods or for tender of any documents is an estimate only and does not constitute a condition of the contract or part of the description of the Goods. The Seller shall not be under any liability whatsoever for the consequences of any delay as a result of any cause outside its reasonable control and, in particular, but without prejudice to the generality of the foregoing, the Seller shall be under no liability whatsoever for any delay in completion, delivery, dispatch, shipment or arrival of the Goods or in the tender of any documents caused (directly or indirectly) by acts of God, war, riots, strikes, lockouts, trade disputes, fires, breakdowns, mechanical failures, interruption of transport, government action or by any other cause whatsoever, whether or not of a like nature to those specified above, outside the reasonable control of the Seller and in any such event the time for completion, delivery, dispatch, shipment or arrival at the Goods or tender of documents may be extended by the Seller (or the Seller may cancel the contract without any liability whatsoever on its part). Time for completion, delivery, dispatch, shipment or arrival of the Goods or for the tender of any documents is not of the essence of the contract.

b) In the event of production of the Goods or any part thereof being hindered or impaired or ceasing for any cause whatsoever outside the reasonable control of the Seller, the Seller may notify the Buyer that it is unable to fulfil the contract and may cancel the contract without being under any liability whatsoever save for an obligation to return to the Buyer any money received by the Seller in respect of the Goods at that time.

c) Unless otherwise stated in writing the Seller may make partial deliveries or deliveries by instalments in any amounts it may determine and each such partial delivery or delivery by instalment shall be deemed to be separate contracts and these conditions of sale shall apply to each partial delivery or delivery by instalment.

d) The Seller may deliver up to ten per cent more or less than the amount specified for delivery, subject only to an appropriate adjustment to the price payable, in full satisfaction of the Seller's obligations pursuant to the particular contract.

7. Claims

The Buyer shall notify the Seller in writing within fourteen (14) days of the date the Goods are delivered. If the Seller is responsible for any shortfall in or loss or damage to the Goods delivered (these expressions include Goods which are defective or non-conforming) and shall ensure the Goods are kept intact for inspection by the Seller. Failure to comply with this provision shall, to the full extent permitted by law, disentitle the Buyer to any remedy in respect of the shortfall, loss or damage. (The Seller may at its discretion refuse Goods for return for any reason other than the conditions contained herein.) Without limiting the provisions of any other condition within these conditions of sale, the Seller's liability with respect to claims shall not exceed the Purchase Price of the Goods. The Seller may at its discretion replace Goods which are the subject of a claim, at no extra cost to the Buyer, and the replacement Goods shall be subject to these conditions of sale.

8. Property

a) Property and ownership in the Goods will not pass to the Buyer but will remain in the Seller until payment in full of the Purchase Price of the Goods and all other amounts owing is made to the Seller by the Buyer.

b) Risk in the Goods will pass at the time of delivery and the Buyer must insure the Goods.

c) Until property in the Goods passes to the Buyer:

(i) the Buyer will hold the Goods as fiduciary bailee and agent for the Seller:

(ii) after giving 48 hours notice to the Buyer the Seller is entitled to enter upon the Buyer's premises between 9 a.m. and 5 p.m. to inspect the Goods;

(iii) the Goods are to be stored separately and in a manner to enable them to be readily identifiable as the Seller's property;

(iv) the proceeds of any Goods sold are to be kept in a separate account and must not be mixed with any other monies, including funds of the Buyer;

(v) the Buyer must return the Goods to the Seller on demand;

d) In the event that the Buyer fails to return the Goods following the making of a demand, the Seller is irrevocably authorised to enter any premises where the goods are kept, and to use the name of the Buyer and to act on its behalf, if necessary, to recover possession of the Goods without liability for trespass or any resulting damage.

e) In the event that the Buyer incorporates or transforms the Goods (or any portion of them) into any other goods or products produced by the Buyer (or a third party), then the Buyer must hold a proportion of any payment ("relevant proportion") received by the Buyer for such goods or products on trust for the Seller. The Buyer expressly acknowledges that the relevant proportion shall be equal to the dollar value of the Goods incorporated or transformed and the Buyer further acknowledges that any part payment (not exceeding the relevant proportion) received by the Buyer for such goods or products is received as payment first of the relevant proportion.

f) The authority of the Buyer to sell the Goods does not extend to the making of any warranties or conditions which exposes the Seller to liability to another person (except as to the price, the terms of payment and like provisions) and the Buyer must ensure that to the full extent permitted by law all conditions, warranties implied or imposed by law are excluded and where such a condition cannot be excluded that the Seller's liability is limited to the full extent permitted by law.

g) The Buyer shall not attempt to give or allow any security interest over the Goods in favour of another person.

h) The conditions of this clause 8 apply notwithstanding any arrangement between the parties under which the Seller grants the Buyer credit.

9 Personal Property Security Interest

a)  Within this section, capitalised words are defined terms and, where applicable, have the same meaning as within the Personal Property Securities Act (2009) (“PPSA”).

b) The Buyer grants the Seller a Security Interest in the Goods (supplied as Commercial Property, more particularly described as Other Goods) and their Proceeds to secure the obligation of the Buyer to pay the purchase price of the Goods and any other obligations of the Buyer to the Seller under this contract (together the “Indebtedness”) and, where the Goods and/or Proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the Indebtedness, the security interest shall also extend to all the Goods present and after acquired by the Buyer, of which the Goods form part, to the extent required to secured the Indebtedness.

c) As and when required by the Seller, the Buyer shall, at its own expense, provide all reasonable assistance and relevant information to enable the Seller to register a Financing Statement or a Financing Change Statement and generally to obtain, maintain, register and enforce the Seller’s Security Interest in respect of the Goods and their Proceeds in accordance with the PPSA.

d) The Seller may at any time register a financing statement or financing change statement in respect of a Security Interest (including any Purchase Money Security Interest). The Buyer waives any right to receive notice in relation to any registration on the register of a Security Interest in respect of the Goods.

d) The Buyer warrants that the Goods are not purchased for personal, domestic or household purposes.

e) Notwithstanding any reference to a particular invoice/order, where any sum remains outstanding by the Buyer on more than one invoice/order, any payments received from the Buyer shall be deemed to be made by the Buyer and applied by the Seller in the following order (unless the Seller otherwise determines):

(i) To any obligation owed by the Buyer to the Seller which is unsecured, in the order in which the obligations were incurred;

(ii) To any obligations that are secured, but not by a Purchase Money Security Interest, in the order in which those obligations were incurred;

(iii) To obligations that are secured by a Purchase Money Security Interest, in the order in which those obligations were incurred.

f) Until the Buyer has paid all money owing to The Seller, the Buyer shall at all times ensure that:

(i) All Goods, while in the Buyer’s possession, can be readily identified and distinguished, and/or

(ii) All Proceeds (in whatever form) that the Buyer received from the sale of any of the goods are readily identifiable and traceable.

g) Where the Goods are purchased by the Buyer and held as Inventory, nothing in this clause shall prevent the Buyer from selling or leasing and delivering the Goods in the ordinary course of the Buyer’s business. Otherwise until the Buyer has paid all money owing to the Seller the Buyer shall not sell or grant a Security Interest in the Goods without the Seller’s written consent.

h) The parties agree to contract out of the PPSA in accordance with Section 115 of the PPSA to the extent that Section 115 applies for the benefit of, and does not impose a burden on, the Seller. Specifically, the following provisions of the PPSA will not apply and the Buyer will have no rights under them:

(i) Section 95 (to the extent that it requires the Secured Party to give notices to the Grantor); section 96; section 118 (to the extent that it allows a Secured Party to give notice to the Grantor); section 121(4); section 125; section 130; section 132(3)(d); section 132(4); section 135; section 142; section 143.

(ii) Section 115(7) of the PPSA allows for the contracting out of provision of the PPSA, the following provisions of the PPSA will not apply and the Buyer will not have any rights under them: section 127; section 129(2),(3); section 130(1); section 132; section 134(2); section 135; section 136(3), (4) and (5) and section 137.

i) Unless otherwise agreed and to the extent permitted by the PPSA, the Buyer and the Seller agree not to disclose any information of a kind referred to in section 275(1) of the PPSA to an interested person or any other person. The Buyer waives any rights which it may have, or but for this clause it may have had had, under section 275(7)(c) of the PPSA to authorise the disclosure of the above information.

10 Privacy Act 1988 (“Privacy Act”)

To enable the Seller to assess the Buyer ’s application for credit, the Buyer authorises the Seller:

a) To obtain from a credit reporting agency a consumer or commercial credit report containing personal information about the Buyer and its guarantors pursuant to Section 18K(1) of the Privacy Act; and

b) To obtain a report from a credit reporting agency and other information in relation to the Buyer ’s commercial credit activities, and

c) To give to a credit reporting agency information including identity particulars and application details

AND in accordance with Section 18N(1) of the Privacy Act the Buyer authorises the Seller to give to and obtain from any credit provider named in the accompanying credit application and credit providers that may be named in a credit report issued by a credit reporting agency information about the Buyer ’s credit arrangements. The Buyer understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act. The Buyer understands that information can be used for the purposes of assessing its application for credit (Section 18L(4) Privacy Act), assisting it to avoid defaulting on its credit obligations, assessing its credit worthiness and notifying other credit providers and credit reporting agencies of a default by it under these Terms.

11 Notification

The Buyer must notify the Seller in writing within seven (7) days of:-

a) Any alteration of the name or ownership of the Buyer.

b) The issue of any legal proceedings against the Buyer.

c) The appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the Buyer.

d) Any change in the ownership of the business name of the Buyer. The Buyer agrees that it shall be liable to the Seller  for all Goods supplied to the new owner by the Seller until notice of any such change is received.

12. Exclusion of Liability

a) No warranties except those implied and that by law cannot be excluded are given by the Seller in respect of Goods supplied. Where it is lawful to do so, the liability of the Seller for a breach of a condition or warranty is limited to the repair or replacement of the Goods, the supply of equivalent Goods, the payment of the cost of repairing or replacing the Goods or acquiring equivalent Goods, as determined by The Seller.

b) Any warranty given by the manufacturer of the Goods will be passed on to the Buyer.

c) To the full extent permitted by law:

(i) the Seller gives no condition or warranty whatsoever as to the condition or quality of the Goods or as to their suitability or fitness for their ordinary or any special use or purpose and the description of the Goods in any contract or other document shall not import any such condition or warranty on the part of the Seller:

(ii) it is the responsibility of the Buyer to inspect the Goods and satisfy himself as to the condition, quality, suitability and fitness of the Goods for his purposes prior to the use or re-sale of the said Goods. If the Buyer fails to inspect the Goods in connection with the requirements specified in this clause 9(b)(iii), he shall have forfeited any right for compensation of any kind and must pay the full Purchase Price of the Goods to the Seller,

(iii) the Seller assumes no liability (whether for negligence or otherwise) for any technical advice or assistance given or the results obtained there-from and any such advice is given and accepted at the Buyer's risk:

(iv) the Seller shall be under no liability whatsoever for any defects (including any defect caused by the loading of the Goods) in, or deterioration or failure of, the Goods or any part thereof (or any goods supplied with the Goods or any part thereof) whether due to design, workmanship or materials or to any cause whatsoever unless the same is due to the negligence or wilful default of the Seller or its employees or agents. The Seller shall be under no liability whatsoever for any failure of the Goods (other than in relation to a substantial ingredient of the identity of the Goods) to correspond with any description (including without limitation, any description relating to quantity, dimensions, weight, place of shipment or other statements relating to transport of the Goods);

(v) the Seller shall be under no liability to the Buyer for any loss (including but not limited to loss of profits and consequential loss) of any kind whatsoever arising out of the supply or failure to supply the Goods.

13. Indemnity

The Buyer shall comply with all instructions of the Seller in relation to the handling, fitting, installation and use of the Goods and, notwithstanding such compliance, the Buyer shall keep the Seller indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature, including, without prejudice to the generality of the foregoing, claims for death, personal injury, damage to property and consequential loss, (including loss of profit) which may be made against the Seller or which the Seller may sustain, pay or incur as a result of or in connection with the manufacture, sale, export, import or use of the Goods unless such cost, claim, demand, expense or liability shall be directly and solely attributable to any breach of contract by, or negligence of, the Seller or a duly authorised employee or agent of the Seller.

14. Health and Safety

It Is the Buyer's responsibility to ensure that all applicable health and safety regulations are observed and other appropriate steps taken in relation to the storage, handling and use of the Goods and, where information is supplied to the Buyer on potential hazards relating to the Goods, to bring such information to the attention of its employees, agents, subcontractors, visitors and customers. Without prejudice to the foregoing, it is also the Buyer's responsibility to provide safe facilities for the reception of the Goods into storage.

15. Packages, Pallets and Containers

A deposit charge may be made by the Seller at its discretion for any returnable packages, pallets or containers as supplied by the Seller for delivery of the Goods. Such packages pallets or containers must be returned in good condition within a period of thirty (30) days of delivery otherwise, the Buyer will be liable for payment of the deposit amount within the agreed thirty (30) days payment terms unless an alternative agreement has been made in writing.

16. Taxes, Duties

The Buyer shall pay to the Seller in addition to the price of the Goods all taxes, duties, imposts or other levies thereon or in respect thereof charged to the Seller or for which the Seller may be liable when demand is made thereafter (whether in the invoice for the Goods or otherwise). It is the Buyer's responsibility to supply the prescribed certificates exempting payment of taxes within the acceptable period, otherwise taxes are for the account of the Buyer.

17. Proper Law and Jurisdiction

All contracts made between the Seller and the Buyer in Australia shall be governed by and construed in accordance with the laws of the State of Victoria. The Buyer agrees to submit to the non-exclusive jurisdiction of the Victorian courts for all purposes of or in connection with such contracts.

18. Intellectual Property Rights

The Buyer shall not alter, remove or in any way tamper with any of the trade or other marks or numbers of the Seller attached to or placed upon the Goods.

19. Resupply

In connection with the supply of Goods:

a) the Buyer shall not make any false representations as to the suitability of those Goods for a particular purpose, the description of those Goods, their merchantable quality or any other representation which will constitute a breach of any condition or warranty implied by law; and

b) the Buyer shall distribute to every customer all such warnings, instructions and like information relating to those Goods which the Seller has provided to the Buyer.

20. Modifications

Where the Buyer re-supplies the Goods, the Buyer shall not in any way without the consent of the Seller interfere with the Goods or change the composition or appearance of the Goods. Without limiting the generality of the foregoing, the Buyer shall not conceal, remove or otherwise interfere with any warnings, labels or other markings on or affixed to the Goods.

21. Licences and Consents

The obtaining and maintenance in full force and effect of any necessary export or import licences, authorisations or consents in respect of the Goods is the sole responsibility of the Buyer and the Seller shall be under no liability whatsoever in respect of Goods exported or imported without any necessary licences, authorisations or consents.

22. Equitable Charge

The Buyer as beneficial owner and/or registered proprietor now charges in favour of the Seller all of the Buyer's estate and interest in any real property (including but not limited to any applicable land  owned by the Buyer named or described as the Buyer's Street Address in the Credit Application if applicable) ("Land") to secure payment of accounts rendered by the Seller to the Buyer for the delivery and/or supply of the Goods including interest payable on these accounts and costs (including legal costs on a full indemnity basis) incurred by the Seller and including the costs to prepare and lodge a Caveat against the Land and to remove the Caveat.

23. Miscellaneous

a) The headings of these conditions of sale are provided for convenience only and shall have no effect on the Interpretation thereof.

b) If at any time the Seller does not enforce any of these conditions of sale or grant the Buyer time or other indulgence, the Seller shall not be construed as having waived that term or condition or its rights to later enforce that or any other term or condition.

c) If a provision or part of a provision is illegal, void or unenforceable the remainder of the provision and all other provisions will continue in full force and effect.