2. Application of Terms

2.1 These Terms apply to and govern the supply of all Goods and/or Services by Nutricia to the Customer.  All Purchase Orders received by Nutricia from the Customer will constitute an offer by the Customer to acquire the Goods and/or Services on these Terms.  A contract is made only on acceptance (in whole or part) of the Purchase Order by Nutricia in accordance with clause 3.2.  Each Purchase Order will constitute a separate contract for the particular Goods and/or Services on these Terms.

2.2 Unless expressly agreed in writing by Nutricia, these Terms take precedence over any other terms and conditions, and any other terms and conditions proposed or issued by the Customer shall have no effect.  Unless otherwise agreed in writing, Nutricia’s quotation (if any), Nutricia’s standard Purchase Order form, the Customer Details and these Terms constitute the entire agreement between Nutricia and the Customer for each Purchase Order in accordance with clause 22.4.

3. Definitions

Amount Owing means any amount owed by the Customer to Nutricia from time to time, including any interest payable by the Customer, any liability of the Customer under these Terms and any enforcement costs incurred by Nutricia in seeking payment of any Amounts Owing by the Customer;

Business Days means any day other than Saturday, Sunday, a public holiday in New South Wales, Australia;

Connected Entity has the meaning given to that term in section 64B of the Corporations Act 2001;

Customer means the customer named as such in the Customer Details;

Customer Details means the form inserted at the beginning of these Terms, recording the Customer’s details;

Delivery Address means the Delivery Address specified in the Purchase Order or such other address that is in the general locale of the Delivery Address specified in the Purchase Order, or is notified to Nutricia in writing from time to time and is accepted by Nutricia as being an appropriate new Delivery Address;

Delivery Date means the date on which the relevant Goods are ready for dispatch from Nutricia’s, or its agent’s, premises and, for the avoidance of doubt, may not be the same date as the date on which the Goods are delivered to the Delivery Address;

Event of Default means any event where:

(a) any Amount Owing by the Customer to Nutricia is overdue or the Customer (in any capacity) fails to comply with any other obligation under these Terms or any other agreement with Nutricia; or

(b) the Customer fails to take delivery of the Goods; or

(c) the Customer exceeds its credit limit at any time and fails to pay any Amount Owing within 20 days of Nutricia’s request to do so; or

(d) the Customer fails to remedy a breach of these Terms within 10 days of Nutricia’s request to do so, or commits a breach that, in Nutricia’s opinion, is incapable of remedy; or

(e) the Customer suffers an Insolvency Event; or

(f) the ownership or effective management or control of the Customer or the Customer’s parent, or the Customer’s business, is transferred through whatever means, and Nutricia reasonably considers such change in control or transfer prejudicial to Nutricia’s interests; or

(g) the nature of the Customer’s business is materially altered;

Force Majeure Event means an event or circumstance beyond the reasonable control of either party, which makes it difficult or illegal to perform, or prevents compliance with or the performance of, a party’s obligations under these Terms, including:

(h) acts of God, fires, floods, storms and earthquakes;

(i) strikes, lockouts or industrial dispute;

(j) riots, explosions, insurrection or war, governmental action, epidemics, disease, accidents or emergency;

(k) interruptions to transportation or telecommunications, cyber security threats, delay in obtaining licenses, embargo, or damage to Nutricia’s works or business or those of its suppliers; or

(l) any other cause of the kind specifically stated above and outside the party’s reasonable control.

FSANZ means Food Standards Australia and New Zealand;

Goods mean any goods or products supplied by Nutricia pursuant to a Purchase Order, including raw materials and end products;

GST means goods and services tax payable on supplies in accordance with the GST Law;

GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

Insolvency Event means in respect of a party (other than for the purpose of solvent reconstruction or amalgamation) (a) a receiver, receiver and manager, liquidator, provisions liquidator, trustee, administrator, controller, inspector appointed under any companies or securities legislation, or similar official is appointed in respect of that party or any of its property, or any security over any substantial part of its assets is enforced, (b) the party ceases to carry on all or substantially all of its business, is unable to pay its debts when due, or is deemed unable to pay its debts under any law, or makes an assignment for the benefit of, or enters into or makes any arrangement or compromise with, that party’s creditors or threatens to do so, or stops payments to its creditors generally, (c) the party is, becomes, or is deemed to be insolvent or bankrupt, (d) a distress, attachment or other execution is levied or enforced upon or commenced against any substantial party of its assets and is not stayed within 14 days, (e) anything having a similar effect to any of the events specified above happens under the law of any applicable jurisdiction, or (f) in the event that the party is an individual, anything having a similar effect to any of the events specified above happens in respect of that individual;

Intellectual Property means any patent, copyright, design right, database right, topography right, trade mark, service mark, name, domain name, logo, application to register any of the aforementioned rights or materials in which they may subsist, know-how, rights of confidence and any other intellectual property or industrial property right of any nature whatsoever in any part of the world, whether or not registered or capable of registration or existing now or in the future, including customer lists, specifications, formulae and processes;

Nutricia means Nutricia Australia Pty Limited (ABN 99 076 246 752);

PPSA means the Personal Properties Securities Act 2009;

Price List means the list of prices for Nutricia’s Goods and/or Services valid as at the date of dispatch or supply;

Purchase Money Security Interest has the meaning given to that term in the PPSA;

Purchase Order means an order for Goods and/or Services submitted to Nutricia by the Customer in writing using Nutricia’s standard order form;

Security Agreement and Security Interest have the meaning given in those terms in the PPSA;

Service Completion Date means the date for completion of the Services pursuant to the relevant Purchase Order;

Services mean any services supplied by Nutricia pursuant to a Purchase Order;

Terms means these Terms and Conditions of Sale;

TGA means the Therapeutic Goods Administration as part of the Department of Health; and

Third Party Supplies means all goods and services supplied by persons or entities other than Nutricia.

4. Orders

4.1 All orders or requests for the supply of Goods and/or Services must be submitted by the Customer to Nutricia as a Purchase Order.

4.2 Nutricia may, at its discretion, accept a Purchase Order (in whole or part) by issuing an invoice in respect of the applicable Goods and/or Services, delivering the Goods and/or supplying the Services, or otherwise confirming its acceptance of the Purchase Order in writing.  Nutricia reserves the right to refuse to accept or proceed with any Purchase Order (regardless of whether that Purchase Order has previously been accepted) if the Customer’s trade performance is, or becomes, unsatisfactory to Nutricia at any time.

4.3 Once Nutricia has accepted a Purchase Order, it cannot be cancelled by the Customer without Nutricia’s prior written approval.  Any modifications or variations to a Purchase Order by the Customer will not be accepted unless notified to Nutricia within a reasonable time prior to delivery or performance and agreed to in writing by Nutricia.

4.4 The supply of Goods and/or Services is subject to availability and Nutricia reserves the right to suspend or cancel (in whole or in part) any Purchase Order (regardless of whether that Purchase Order has previously been accepted) upon notification to the Customer.

4.5 In the event that Nutricia accepts (in accordance with clause 3.2) an order for Goods or Services submitted other than by way of Purchase Order (e.g., an order not submitted in writing, not using Nutricia’s approved standard order form or, a quotation issued by Nutricia that is accepted in writing by the Customer), the Customer acknowledges and accepts that:

(a) these Terms shall apply to the order as though it was a valid Purchase Order; and

(b) to the extent permitted by law, Nutricia accepts no responsibility whatsoever, and will not be liable to the Customer, for any errors in dimensions, quantities, specifications or otherwise in relation to the Goods and/or Services.

4.6 The Customer acknowledges that all descriptions, specifications, statements or visual representations provided by Nutricia to the Customer or otherwise contained in any catalogues, advertising material or other documentation are approximate only and are intended to be merely a general description of the Goods and/or Services and are not incorporated in any contract with the Customer nor form part of the description of the Goods and/or Services provided under these Terms unless expressly agreed otherwise in writing by Nutricia.

5. Purchase Price

5.1 Unless expressly agreed otherwise by Nutricia, the purchase price of the Goods and/or Services is the price specified in the Price List at the date of supply of the relevant Goods or the Services Completion Date for the relevant Services.  The Customer acknowledges and agrees that prices are subject to increase due to exchange rate fluctuations or increases in supplier costs beyond Nutricia’s reasonable control.  Nutricia reserves the right to update or amend the Price List from time to time, and will supply the Customer with a copy of the then-current Price List on request.

5.2 Disbursements and expenses incurred by Nutricia in supplying the Goods and/or Services may be charged to the Customer in addition to the price, including, without limitation, freight and insurance.  Nutricia reserves the right to charge a reasonable handling fee for all orders delivered to the Customer.

5.3 GST:

(a) In this clause, a term or expression starting with a capital letter which is defined in the GST Law but not defined in these Terms has the same meaning as in the GST Law.

(b) Unless otherwise specified, Nutricia’s prices are stated exclusive of all taxes (including GST), tariffs, duties or impositions of a similar nature imposed by any government or other authority.  Where applicable, such amounts shall be added to the invoice issued to the Customer, and the Customer shall be required to pay such amounts at the same time as paying the prices for the Goods and/or Services.

(c) If GST is or becomes payable on a Supply made under or in connection with these Terms, an additional amount is payable by the party providing consideration for the Supply equal to the amount of GST payable on that Supply as calculated by the party making the Supply in accordance with the GST Law.

(d) Subject to paragraph (e), the additional amount payable under paragraph (c) is payable at the same time and in the same manner as the Consideration for the Supply.

(e) The Customer will not be required to pay any GST component of an invoice to Nutricia unless that invoice complies with all the requirements for a Tax Invoice under the GST Law.

(f) Unless otherwise stated in this Agreement, the following principles apply when determining the amount of a payment under these Terms:

(i) if a party is entitled under these Terms to be reimbursed or indemnified by the other party for an expense, claim, loss, liability or cost incurred in connection with these Terms, the reimbursement or indemnity payment must not include any GST component of the expense, claim, loss, liability or cost for which an Input Tax Credit may be claimed;  and

(ii) if a party sets off an amount under these Terms, the same principles apply to calculate the amount to be set-off, as if the amount had been paid in accordance with paragraph (i).

(g) If an Adjustment Event occurs, the parties must do all things necessary to make sure that the Adjustment Event may be appropriately recognised, including the issue of an Adjustment Note.

6. Quotations

6.1 Where a quotation is given by Nutricia for Goods and/or Services:

(a) Nutricia reserves the right to withdraw the quotation without notice at any time prior to acceptance by the Customer; and

(b) unless stated otherwise, the quotation shall:

(i) remain valid for a period of no more than 30 days from the date of quotation; and

(ii) be exclusive of all taxes, disbursements and expenses.

6.2 Where Goods and/or Services are required in addition to the quotation, the price of those Goods and/or Services (and any related taxes, tariffs, duties or impositions of a similar nature, disbursements or expenses) shall be payable by the Customer in addition to the quoted amount.

6.3 Where the quantity of Goods and/or Services actually ordered by the Customer reduces by more than 10% from the amount quoted in the quotation, Nutricia reserves the right to amend any quotation to reflect the reduced quantity.

7. Payment

7.1 Subject to clause 6.3, the Customer must pay all Amounts Owing on the due date, in accordance with the payment terms specified by Nutricia in the Customer Details.  If payment terms are not specified, the due date will be seven days from the end of the week in which an invoice for the Amount Owing is issued by Nutricia.

7.2 If the Customer disputes the whole or any part of any invoice submitted by Nutricia:

(a) the Customer shall pay the undisputed portion of the invoice in accordance with clause 6.1, and notify Nutricia in writing (within five Business Days of receipt of the invoice) of the reasons for disputing the remainder of the invoice; and

(b) if it is resolved that some or all of the amount in dispute should have been paid at the time the first invoiced, then the Customer shall pay interest on that amount in accordance with clause 6.6(a) from the original due date until the amount (including accrued interest) is paid in full.

7.3 Where any approved credit limit is exceeded or no credit limit exists, Nutricia may (at its option) require the Customer to pay for the Goods and/or Services within a shorter time frame or in advance of provision of the Goods and/or Services by giving notice to the Customer accordingly.  The Customer is not relieved from its obligation to pay as a result of the credit limit being exceeded or no credit limit existing.

7.4 Payment must be made in cash, or by cheque, bank cheque, direct credit, or by any other method agreed between the Customer and Nutricia.

7.5 The Customer must not deduct, withhold or offset any sum from any Amount Owing to Nutricia under these Terms.

7.6 In addition to any rights Nutricia may have under clause 15, if payment in full is not received by Nutricia by the due date:

(a) the Customer will pay to Nutricia on demand default interest on any Amount Owing, at a rate of 2% per annum above the current penalty interest rate fixed under the Penalty Interest Rates Act 1983, calculated on a daily basis from the date payment is due until the date payment in full (including accrued interest) is received by Nutricia; and

(b) Nutricia may (without any prior notice or demand) set-off or deduct any amounts owing (or to become owing) by Nutricia to the Customer in order to reduce any payment due (or to become due) by the Customer to Nutricia.  

8. Delivery of Goods and Performance of Services

8.1 Unless otherwise agreed in writing:

(a) subject to clause 7.2, Nutricia is responsible for arranging delivery of the Goods; and

(b) the Goods shall be delivered to the Delivery Address.

8.2 Delivery will be completed by delivery to the Delivery Address, or if no address is indicated, delivery will be deemed to be effected at the time when Nutricia notifies the Customer that the Goods are available for collection by the Customer at Nutricia’s premises.  The Customer shall be responsible for unloading the Goods at the Delivery Address, and must do so promptly on arrival of the Goods at the Delivery Address.  

8.3 The Customer will accept delivery of Purchase Orders in instalments.  Where Nutricia delivers Goods to the Customer by instalments and Nutricia fails to deliver one or more instalments, the Customer shall not have the right to cancel the Purchase Order.

8.4 If the Customer fails or refuses to take or accept delivery or to unload the Goods promptly on their arrival, then the Goods shall be deemed to be delivered when Nutricia was willing to deliver the Goods, Nutricia will be entitled to invoice the Customer for full payment and the Customer shall be liable for all reasonable costs incurred by Nutricia, including reasonable storage, freight and handling costs, until the Customer accepts delivery of the Goods (and unloads them).  

8.5 Nutricia will use reasonable commercial endeavours to meet any agreed Delivery Date or Service Completion Date, but will not be liable for, nor may the Customer cancel any Purchase Order, withhold payment, refuse delivery or reject performance, or make a claim against Nutricia for any losses caused to the Customer as a result of, any delay in delivery or performance.  

8.6 The relevant Delivery Date, where specified, is subject to Nutricia’s suppliers’ stock levels and/or order production schedules and/or shipping dates, and accordingly Nutricia reserves the right to alter Delivery Dates.

8.7 For the avoidance of doubt, the time agreed for delivery of Goods or performance of Services is not an essential term of any contract, unless expressly acknowledged and agreed to be by Nutricia in the applicable Purchase Order.

9. Risk and Insurance

9.1 Risk of any loss, damage or deterioration in the Goods shall pass from Nutricia to the Customer when the Goods are delivered (or deemed to be delivered) to the Customer in accordance with clauses 7.2 and 7.4.

9.2 The Customer must insure the Goods for their full replacement value for the benefit Nutricia at all times from the time at which risk in the Goods passes to the Customer until ownership of the Goods has passed to the Customer.

10. Property in Goods

10.1 Until Nutricia has received full payment in cleared funds of the Amount Owing:

(a) all Goods supplied by Nutricia will remain the property of Nutricia and title in them will not pass to the Customer;

(b) all Goods supplied by Nutricia and not sold by the Customer to a third party will be in the possession of the Customer as a fiduciary bailee for Nutricia.  The Customer will keep the Goods separate from other goods and identify and store them so they remain readily identifiable as Nutricia’s property.  The Goods must be kept in good condition; and

(c) unless Nutricia directs otherwise, and subject always to clause 14.1, the Customer may dispose of any Goods purchased from Nutricia to third parties by way of bona fide sale and for full market value, on arm’s length terms and in the normal course of trading.  This authority is deemed to be revoked automatically and immediately if any Event of Default occurs.

10.2 Nutricia may apply any payments received from or on behalf of the Customer in reduction of the Amount Owing in such order and manner as Nutricia thinks fit (despite any direction to the contrary and whether before or after the occurrence of an Event of Default).

10.3 If the Customer resells or uses any Goods before ownership of the Goods has passed to the Customer, the proceeds of such sale or use will be received and held by the Customer (in whatever form) in trust for both the Customer and Nutricia.  Nutricia’s interest as beneficiary under that trust will be that portion of the proceeds that does not exceed the Amount Owing.  The balance of the proceeds (if any) will be the Customer’s beneficial interest under that trust.

10.4 Nutricia may bring an action for Amounts Owing in relation to Goods sold even where ownership of the Goods may not have passed to the Customer.

11. Personal Property Securities Act 2009

11.1 To secure payment by the Customer to Nutricia of the Amount Owing, in addition to any other Security Interests arising under these terms, the Customer grants to Nutricia a Security Interest in the Goods and the proceeds of such Goods. These Terms constitute a Security Agreement creating a Purchase Money Security Interest in those Goods and the proceeds of such Goods.

11.2 The Customer undertakes:

(a) promptly to do all things, sign any further document and/or provide any information that Nutricia may reasonably require to ensure Nutricia is paid all sums due to Nutricia and otherwise to protect the interests of Nutricia under these Terms (including by registration of a financing statement and ensuring that Nutricia has a first ranking perfected Security Interest in the Goods and the proceeds of the Goods); and

(b) to give Nutricia (addressed to the financial controller or equivalent) not less than 14 days’ prior written notice of any proposed change in the Customer’s name and/or any other changes in the Customer’s details (including changes to the Customer’s address, facsimile, email, trading name or business practice, including if it becomes trustee of a trust or partner of a partnership not stated in the Customer Details, or if any ABN, ARBN or ARSN in relation to it is allocated, changes or ceases to apply).

11.3 The Customer waives its right to receive any notice required by any provision of the PPSA (including notice of any verification statement under section 157 of the PPSA in respect of any financing statement relating to a Security Interest). However, this does not prohibit Nutricia from giving a notice under the PPSA or any other law.

11.4 If Chapter 4 of the PPSA applies to any enforcement of a Security Interest by Nutricia under a transaction contemplated by these Terms then, to the extent permitted by law:

(a) the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), and 135 of the PPSA;

(b) Nutricia and the Customer agree:

(i) to contract out of and nothing in the provisions of sections 142 and 143 of the PPSA will apply to these Terms; and

(ii) that Nutricia need not comply with sections 96, 125 and 129 of the PPSA;

(c) for the purposes of section 115(7) of the PPSA, Nutricia also need not comply with sections 132, 134(2) and 137(3) of the PPSA; and

(d) Nutricia and the Customer agree not to disclose information of the kind mentioned in s 275(1) of the PPSA, except in circumstances required by sections 275(7)(b) to (e) of the PPSA or where otherwise expressly permitted under these Terms. The Customer agrees not to exercise its rights to make any request of Nutricia under section 275 of the PPSA to authorise disclosure of any information under that section, or to waive a duty of confidence that would otherwise permit non-disclosure under that section .

11.5 Each Security Interest is a continuing security, notwithstanding any intermediate payments, settlement of accounts or anything else, and each Security Interest shall continue until Nutricia gives the Customer a final release.

11.6 The Security Interests granted under these Terms attach to the relevant Goods and proceeds in accordance with the PPSA. Nothing in these terms and conditions is to be construed as an agreement by the parties that a Security Interest under these Terms attaches at any later time.

11.7 Nutricia may allocate amounts received from the Customer in any manner Nutricia determines, including in any manner required to preserve any Security Interest (including any Purchase Money Security Interest) it has in the Goods.

11.8 The Customer must provide Nutricia with information and any associated documentation reasonably requested by Nutricia from time to time relating to the Customer financial status.

11.9 If at any time Nutricia considers that the financial status of the Customer is unsatisfactory, Nutricia may require the Customer to grant additional Security Interests as security for the Amount Owing and Nutricia may suspend or cancel further deliveries of Goods to the Customer until the Customer has provided such Security Interest.

11.10 The Customer will not, without Nutricia’s prior written consent, create or allow to exist any other Security Interest or third party interest in respect of the Goods or their proceeds, or enter into any Security Agreement that permits any other person to register any Security Interest in respect of the Goods or their proceeds.

11.11 To the maximum extent permitted by the PPSA, the Customer agrees that:

(a) the provisions of Chapter 4 of the PPSA that are for the benefit of the Customer or that place obligations on Nutricia will apply only to the extent that they are mandatory or Nutricia agrees to their application in writing; and

(b) where Nutricia has rights in addition to those in Chapter 4 of the PPSA, those additional rights will continue to apply.

11.12 For the purposes of section 18(4) of the PPSA, these Terms secure future advances.

11.13 For the purposes of section 20(2)(b)(i) of the PPSA, the collateral is the Goods.

12. Force Majeure

12.1 Nutricia will not be liable for any failure or delay in the delivery of Goods, performance of Services or performance of any other obligation under these Terms where such delay or failure is caused or contributed to by a Force Majeure Event.  In such case, Nutricia shall be entitled, at its option, to amend the relevant Delivery Date or relevant Service Completion Date by a reasonable period of time, or to terminate a Purchase Order.

12.2 The Customer will not be released from the obligation to pay any Amount Owing by reason of a Force Majeure Event.

13. Claims and return requests

13.1 A signed consignment or other proof of delivery note will constitute evidence that all Goods shown on the consignment or other proof of delivery have been accepted by the Customer as delivered and bearing no visible damage.  Anything to the contrary must be noted on the consignment or delivery note.  Where the Customer did not have a representative available at the Delivery Address to sign the carrier’s consignment note or other proof of delivery, then the carrier’s confirmation of delivery shall constitute evidence of complete delivery and acceptance.  

13.2 All claims for:

(a) the delivery of:

(i) the wrong Goods; or

(ii) the incorrect quantity of Goods; or

(iii) Goods damaged in transit; or

(iiii) defective or faulty Goods; or

(b) the supply of defective Services, or Services not otherwise being supplied in accordance with these Terms,

must be in writing and received by Nutricia within five Business Days of delivery (or deemed delivery, as the case requires) of the relevant Goods or completion of the relevant Services.  If the Customer fails to make a claim within this timeframe then, to the maximum extent permitted by law, the relevant Goods or Services will be deemed to have been accepted by the Customer and Nutricia will not be liable (and the Customer waives all rights) in relation to any later claim for damage, discrepancy or other non-compliance of the Goods and/or Services.

13.3 Subject to clause 12.4, the Customer may make a return request to Nutricia with respect to any Goods to which clause 12.2 does not apply, provided the return request is made in writing and received by Nutricia within five Business Days of delivery (or deemed delivery, as the case requires) of the relevant Goods.  A return of Goods may only be made by the Customer with Nutricia’s prior written approval, and shall always be subject to confirmation by Nutricia that the relevant Goods are in merchantable condition (with both the approval to return and the assessment of merchantable condition being entirely at Nutricia’s discretion).  A reasonable re-stocking fee may be charged by Nutricia where a return request is approved by Nutricia.

13.4 The following Goods cannot be returned:

(a) any Goods made, or purchased, from a firm and irrevocable order; and

(b) any Goods altered or damaged by the Customer or that are otherwise not in new condition.

13.5 The Customer is responsible for all costs of freight involved in the return of Goods to Nutricia, except in the circumstances described in clause 12.2(a) (in relation to which freight shall be at the cost of Nutricia).  If not pre-paid by the Customer, the cost of such freight will be deducted from the amount of credit and, if no credit is available, then the cost will be invoiced to the Customer at cost plus a 10% administration and handling fee.

13.6 Subject to clauses 12.1 to 12.5, Nutricia will, at its discretion:

(a) in the case of a claim, issue a credit note, replace the Goods or resupply the Services; or

(b) in the case of a return request, issue a credit note,

provided the following procedure is followed:

(c) the claim or return request (as applicable) is received by Nutricia within five Business Days, in accordance with clause 12.2 or clause 12.3;

(d) the claim or request:

(i) quotes the original invoice number and any other relevant information such as the packing slip or consignment notice number;

(ii) specifies, in reasonably sufficient detail, (in the case of a claim) the defect, fault, damage, short delivery or other non-compliance or (in the case of a return request) the reason for the return; and

(iii) is accompanied by photographic evidence of any damage to which the claim relates; and

(e) where applicable, on approval of the claim or return request, the Customer returns the Good to Nutricia within 20 days of the date of delivery, including the original packaging where the Goods are supplied using special manufacturer’s packaging.  All Goods must be in their original and unmarked condition, complete with any instruction sheets supplied.

13.7 To the maximum extent permitted by law, no responsibility will be accepted by Nutricia for any delays in crediting the Customer or replacing the Goods where such delay is caused by Goods being incorrectly branded or returned without adequate identification of the Customer, the Goods returned and evidence of Nutricia’s prior written approval for the return.

14. Tracking and Tracing Goods

14.1 Nutricia is committed:

(a) to complying with all relevant laws, regulations and standards that govern Nutricia’s products.  This includes complying with the tracking and tracing obligations imposed by FSANZ and the TGA from time to time in relation to Goods supplied by Nutricia; and

(b) to protecting consumer safety.  

14.2 The Customer must have systems in place to identify and trace all Goods on-sold by the Customer, including the address of such persons, batch details and any other product identification details relevant to the particular goods or products.  The Customer will provide Nutricia with such information as Nutricia reasonably requests from time to time for the purposes of assessing the sufficiency of such systems.

14.3 The Customer will notify Nutricia immediately if it becomes aware that an incident or crisis has or is likely to occur in connection with any Goods and will co-operate with Nutricia in connection with such incident or crisis.

14.4 In the event of the recall or withdrawal of a Good, the Customer agrees:

(a) to provide reasonable assistance to Nutricia in developing a recall strategy in accordance with Nutricia’s procedures;

(b) to co-operate with Nutricia and any relevant regulatory authority in monitoring or conducting the Good recall operation and preparing such reports as may be required; and

(c) at the request of Nutricia, to provide Nutricia all reasonable assistance in locating and recovering any Goods affected by the recall.

15. On-sale of Goods

15.1 Unless otherwise agreed in writing by Nutricia, the Customer acknowledges and agrees that the Customer:

(a) must not sell or distribute the Goods outside of Australia;

(b) must enter appropriate contractual arrangements with all persons to whom the Customer on-sells the Goods, prohibiting those persons from selling or distributing the Goods outside of Australia; and

(c) must not, whether directly or indirectly:

(i) sell or distribute, or engage, assist or permit any other person to sell or to distribute, the Goods to a person who was, within the 12 month period preceding the Delivery Date:

(A) a customer of Nutricia; or

(B) a prospective customer of Nutricia, with whom Nutricia has had negotiations or discussions regarding the possible supply of goods; or

(ii) manufacture, or engage, assist or permit any other person to manufacture, goods similar to the Goods.

15.2 Without limiting clause 14.1, the Customer represents, warrants and undertakes that it is acquiring the Goods for the purposes of on-sale.

15.3 The Customer must not give or make any undertaking, assertion or representation in relation to the Goods without Nutricia’s prior approval in writing.  

15.4 The Customer will indemnify Nutricia against any liability or cost incurred by Nutricia as a result of the Customer’s breach of this clause 14.

16. Default

16.1 If an Event of Default occurs, Nutricia may (without limiting any other right or claim it may have against the Customer):

(a) vary or withdraw any approved credit limit;

(b) suspend or terminate all or any part of any Purchase Order with the Customer under these Terms that remains unperformed; and

(c) cancel any rebate, discount or allowance provided by Nutricia to the Customer as at the date of the Event of Default, or at anytime thereafter while such Event of Default is continuing.

16.2 In the event that Nutricia suspends or terminates any Purchase Order under these Terms:

(a) any Amount Owing will become immediately due and payable;

(b) any amounts paid by the Customer will be retained by Nutricia;

(c) the Customer must comply with any request by Nutricia for the return of Goods that have been delivered but not yet paid for by the Customer; and

(d) the Customer must, on request, return any material, documentation, promotional materials or other information provided by Nutricia to the Customer in relation to the Goods and/or Services.

16.3 The Customer agrees that, at any time after an Event of Default has occurred and is continuing or at any time if any Goods are at risk, Nutricia may:

(a) take possession of any Goods; and/or

(b) sell or otherwise dispose of any Goods,

in each case in such manner and generally on such terms and conditions as it thinks fit and, in each case, otherwise do anything the Customer could do in relation to these Goods.  

16.4 Nutricia and its employees and agents may, without prior written notice, enter any land or premises where Goods in the Customer’s possession or control are kept in order to take possession of and/or remove them, without being responsible for any damage caused in doing so.  The Customer agrees to procure all other rights, including consents, necessary to enable, and to indemnify Nutricia (and its employees and agents) against any liability or costs incurred by Nutricia in connection with, any action taken by Nutricia under this clause 15.  Nutricia may resell any of the Goods and apply the proceeds of sale in reduction of the Amount Owing.

16.5 The Customer indemnifies Nutricia, upon demand, for all costs and expenses (including legal fees on a solicitor and client basis) incurred by Nutricia:

(a) as a result (whether directly or indirectly) of the occurrence of an Event of Default, including upon actual or attempted enforcement of any Security Interest granted by the Customer and appointment of a receiver; and

(b) in registering and maintaining any financing statement.

17. Additional Rights of Termination

17.1 In addition to Nutricia’s general rights of termination under these Terms and at law, Nutricia reserves the right to terminate any Purchase Order if:

(a) the sold Goods are repaired or modified without its prior knowledge or consent, by any person other than an authorised representative of Nutricia; or

(b) Nutricia ceases to have rights to distribute the Goods or to provide the Services.

18. Disputes

18.1 If a dispute, difference or question arises between the parties out of or in connection with these Terms (including any Purchase Order under them) or the subject matter (a Dispute), the process for resolving the Dispute shall be as set out in this clause 17 and, in particular, no party may commence court proceedings relating to the Dispute (unless that party is seeking urgent interlocutory relief).

18.2 A party claiming a Dispute has arisen must give written notice to the other party specifying the matter in dispute.

18.3 After a party has given a notice under clause 17.2, the parties must use their reasonable endeavours to resolve the Dispute within 20 Business Days of the date of that notice, including by making available for a meeting (in person, or via video conference if the parties are in difference cities) representatives with authority to settle the Dispute.

18.4 If the Dispute is not resolved under clause 17.3, the parties must within a further 20 Business Days (or further period agreed in writing) seek to agree on a process for resolving expeditiously and cost-effectively the whole or part of the Dispute through means other than arbitration such as, and without limitation, further negotiations, mediation, conciliation, independent expert determination or any other alternative dispute resolution technique.

18.5 Notwithstanding the Dispute, each party will continue to perform its obligations under these Terms as far as possible as if no Dispute had arisen, pending final resolution of the Dispute.

18.6 Nothing in this clause 17 will prevent either party from seeking urgent interlocutory relief from the courts of Australia.

19. Warranties and liability

19.1 Subject to clause 18.3 and except as expressly agreed by Nutricia in writing, Nutricia expressly excludes, to the maximum extent permitted by law:

(a) all warranties, descriptions, statements and representations, whether implied by statute or made by any representative or agent of Nutricia or otherwise, and whether express or implied;

(b) all liability (whether in tort (including negligence), contract, equity or otherwise) under or in connection with these Terms or the supply of Goods or Services to the Customer; and

(c) any liability in any event for any loss or profits, loss of revenues, or consequential, indirect or special damage, loss or injury of any kind suffered by the Customer or any other party.  

19.2 Subject to clause 18.3 and except as expressly agreed in writing, Nutricia does not provide any warranties for Third Party Supplies sold, supplied or arranged by Nutricia pursuant to a Purchase Order and the Customer acknowledges and agrees that:

(a) the Customer relies solely on the third party’s warranty (if any);

(b) the third party supplier’s terms will apply; and

(c) the Customer shall be solely responsible for compliance with the third party supplier’s warranty registration and claims processes.

19.3 All express or implied guarantees, warranties, representations, or other terms and conditions relating to these Terms or its subject matter, not contained in these Terms, are excluded from these Terms to the maximum extent permitted by law.  Certain laws provide non-excludable statutory guarantees, conditions or warranties for the supply of certain goods or services.  Nothing in these Terms is to be taken to exclude, restrict or modify any guarantee, condition or warranty that Nutricia is prohibited by law from excluding restricting or modifying.  If such a guarantee, condition or warranty applies to these Terms and Nutricia breaches it, Nutricia’s liability is limited to (at Nutricia’s option, and to the extent Nutricia is permitted to do so under applicable law):

(a) in the case of Goods, the replacement of the Goods or the supply of equivalent Goods, the repair of the Goods, the payment of the cost of replacing the Goods or of acquiring equivalent Goods, or the payment of the cost of having the Goods repaired; or

(b) in the case of Services, the resupply of the relevant Services or the payment of the costs of having the relevant Services resupplied.

19.4 Insofar as Nutricia may be found liable notwithstanding clauses 18.1and 18.2, Nutricia’s maximum aggregate liability whether in tort (including negligence), contract, equity or otherwise, for any loss, damage, claim, cost, expense or injury arising under or in connection with these Terms or the supply of Goods or Services to the Customer (including directly or indirectly from any defect in, or non-compliance of any Goods or Services) is limited (at the option of Nutricia):

(a) to repair, replacement or re-performance of any defective Goods or Services, in accordance with clause 18.5; or

(b) to credit for the cost of repairing the defective Goods or Services; or

(c) to repayment of the price paid by the Customer for the defective Goods or Services.

19.5 Parts (if available) and labour for repair or replacement of any Goods or re-performance of any Services under clause 18.3 will be provided by Nutricia during normal working hours, and in the case of Goods, at a place of business of Nutricia.  To the maximum extent permitted by law, Nutricia is not liable for the cost of transportation of the Goods to such a place of business except in cases where the Goods supplied are defective, damaged or faulty.  All defective, faulty or otherwise rejected Goods will be the property of Nutricia to dispose of as it sees fit.

19.6 To the maximum extent permitted by law:

(a) any liability Nutricia may have is conditional upon the Customer making a written claim to Nutricia strictly in accordance with clause 12; and  

(b) where any claim is not made in accordance with clause 12, Nutricia shall have no liability to the Customer in relation to the relevant Goods and/or Services.

20. Confidentiality and Intellectual Property

20.1 Each party must maintain as strictly confidential  these Terms, the Intellectual Property of Nutricia and any information relating to the other party which by its nature, or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential , except:

(a) as is agreed in writing between Customer and the Nutricia and, in such case, strictly limited to the terms agreed and any conditions attached to such agreement; or

(b) to its directors, officers, employees, agents, contractors or representatives to the extent necessary to obtain the benefit of, or to properly perform their obligations, under these Terms;

(c) to a Connected Entity; or

(d) as required by an applicable law or the rules of a recognised stock exchange, after first consulting with the other party to the extent practicable about the form and content of the disclosure.

20.2 The Customer must not make any announcement relating to these Terms, or any incident or crisis in connection with these Terms, without Nutricia’s prior written consent.

20.3 All Intellectual Property in the Goods and/or Services or created incidentally shall remain the sole and exclusive property of Nutricia, and nothing in these Terms will give the Customer any interest in any Intellectual Property belonging to Nutricia.

20.4 The Customer will not copy, modify, alter, reproduce, reverse engineer, or enhance Nutricia’s Intellectual Property nor do any act that would or might invalidate or be inconsistent with Nutricia’s rights to its Intellectual Property.

20.5 In the event that the Customer becomes aware of or suspects any infringement of Nutricia’s Intellectual Property, the Customer shall immediately notify Nutricia and shall at the request of Nutricia provide Nutricia with such co-operation and assistance as may be reasonably required by Nutricia in taking any action against any such infringement or suspected infringement.

20.6 The provisions of this clause 19 will survive any termination or expiry of these Terms.

21. Health and Safety

21.1 The parties will comply at all times with all applicable statutory and regulatory obligations in respect of occupational, health and safety, including the Model Work Health and Safety Act (Cth), the Model Work Health and Safety Regulations (Cth) and any applicable state and territory-based legislation. The parties will consult, cooperate and coordinate activities relating to any health and safety matters arising in relation to these Terms.

22. Privacy and Personal Information

22.1 Nutricia respects Customer privacy and is committed to managing and protecting personal information.  Nutricia will only collect, hold, use and disclose personal information in accordance with the Nutricia privacy policy.  For more information or to view the Nutricia privacy policy please visit www.nutricia.com.au.

23. General

23.1 Nutricia may amend these Terms on notice to the Customer.  Any Purchase Order submitted after such notice will be deemed to be acceptance of the updated Terms.  No amendment or variation of these Terms proposed by the Customer is effective unless it is in writing and signed by both parties.

23.2 The Customer must not assign its rights or obligations under or in connection with these Terms without the prior written consent of Nutricia.  A change in the effective management or control of the Customer or any parent company of the Customer will be deemed to be an assignment for the purposes of these Terms, requiring Nutricia’s prior written consent.  Any permitted assignment, transfer or sub-contracting will not relieve the Customer of the Customer’s responsibility for due performance under these Terms.

23.3 The rights, powers and remedies provided for in these Terms are in addition to, and do not limit or exclude (or otherwise adversely affect), any right, power or remedy provided to Nutricia by law.

23.4 These Terms, the Customer Details, Nutricia’s quotation (if any) and the relevant Purchase Order together constitute the entire agreement of the parties concerning the subject matter of these Terms, and supersede and cancel any previous representations, agreements, understandings or arrangements (whether written or oral) between the parties.  Any catalogues, leaflets, promotional material and other documents supplied by Nutricia are supplied only for information purposes and do not alter or vary these Terms.

23.5 The relationship of Nutricia to the Customer is that of an independent supplier to its customer in trade.  Except as expressly provided in these Terms, nothing in these Terms is intended to constitute a relationship of employment, trust, agency, joint venture, partnership or any other fiduciary relationship between the parties.  No party has authority to bind or incur debts on behalf of the other party.

23.6 A waiver of any breach of these Terms or of any right, power or remedy under, or in connection with, these Terms (including a right of termination) is not effective unless that waiver is in writing and is signed by the party granting the waiver.  A failure to exercise, a delay in exercising, or a partial exercise of, any right, power or remedy under, or in connection with, these Terms does not operate as a waiver of such right, power or remedy.  A waiver of any breach is not, and is not deemed to be, a waiver of any other or subsequent breach.

23.7 If any provision of these Terms is illegal, invalid or unenforceable then:

(a) where that provision can be modified to give it a valid and enforceable operation of a partial nature, it must be modified to the minimum extent necessary to achieve that result; and

(b) in any other case, the provision must be severed from these Terms, in which event the remaining provisions of these Terms operate as if the severed provision had not been included.

23.8 Termination or expiry of these Terms will not affect any provisions of these Terms that are expressed to, or by implication are intended to, survive termination or expiry of these Terms including clauses 6 (payment), 9 (property in Goods), 12 (claims), 13 (tracking and tracing Goods), 14 (on-sale of Goods), 17 (disputes), 18 (warranties and liability) and 19 (confidentiality and intellectual property).

23.9 Notices or other communications given by one party to the other in connection with this Agreement are to be in writing and sent by personal delivery, post or electronic mail to the address of the relevant party as notified to the other party from time to time.  Any notice or other communication is deemed to be received and sufficiently served if:

(a) personally delivered, on receipt;

(b) posted by pre-paid official postal service, on the fifth Business Day after posting; and

(c) if sent by electronic mail, on the on the date and time at which it enters the recipient’s information system (as shown in a confirmation of delivery report from the sender’s information system, which indicates that the email was sent to the email address of the addressee notified for the purposes of this clause 22.9).

23.10 Neither party will circumvent or attempt to circumvent the intention or wording of these Terms.  Each party is to sign, execute and do all agreements, documents, schedules, acts and things as may reasonably be required by the other party effectively to carry out and give effect to the terms and intentions of these Terms.

23.11 Each party is to bear its own legal, accountancy and other professional costs and other expenses of, and incidental to, the execution, completion and performance of these Terms, and each contract formed under them.

23.12 These Terms may be executed in any number of counterparts (including by scanned copy) all of which, when taken together, will be treated as making up the one document.  

23.13 Nutricia shall be entitled to enforce its rights under these Terms notwithstanding that Nutricia may not have signed these Terms.

23.14 In this Agreement:

(a) headings are for convenience only and do not affect interpretation;

(b) a word importing the singular includes the plural and vice versa;

(c) the word person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust or government agency, in each case, whether or not having a separate legal personality;

(d) a reference to a party to this Agreement or another document includes that party’s successors and permitted assigns and substitutes;

(e) a reference to approval, agreement or confirmation means approval, agreement or confirmation in writing at the relevant party’s discretion;

(f) references to “including” shall be construed as “including, without limitation”;

(g) where a word or phrase is defined, its other grammatical forms have a corresponding meaning throughout these Terms;

(h) any reference to any agreement or document includes that agreement or document as amended at any time;

(i) the expression “at any time” includes reference to past, present and future time and the performance of any action from time to time;

(j) a reference to a clause is a reference to a clause of these Terms;

(k) when a thing is required to be done or money required to be paid under these Terms on a day that is not a Business Day, the thing must be done or the money paid on the next Business Day;

(l) any references to law includes any national or local law, by-law, statute, act, regulation, other enactment, standard, code, permit, consent, district plan, regional plan, approved code of practice, order, common law, ruling or other requirement or rule of law or any rule, code or other requirement promulgated by a government authority or other regulatory body;

(m) references to any legislation or to any provision of any legislation (including regulations, subordinate legislation and orders) includes that legislation or provision as amended, consolidated, re-enacted or substituted and any statutory instruments, regulations and orders issued under any such legislation or provision, in each case whether before or after the date of these Terms or the applicable Purchase Order;

(n) all currency amounts are in Australian dollars unless expressly stated otherwise;

(o) an obligation not to do something shall be deemed to include an obligation not to suffer, permit, or cause that thing to be done.  An obligation to do something shall be deemed to include an obligation to cause that thing to be done;

(p) this Agreement must not be construed adversely to Nutricia because Nutricia prepared it or caused it to be prepared;

(q) in the event of an inconsistency between these general conditions of purchase and a Purchase Order, unless expressly agreed otherwise in writing, these general conditions of purchase will prevail to the extent of the inconsistency; and

(r) any reference to any times or dates are references to the then-applicable local time in Australia (being either Australian Eastern Standard Time or Australian Eastern Daylight Savings Time).

23.15 These Terms are governed by the laws of the State of New South Wales, Australia, and the United Nations Convention on Contracts for the International Sale of Goods (otherwise known as the Vienna Sales Convention 1980) does not apply.  The parties submit to the non-exclusive jurisdiction of the New South Wales and Australian federal courts.