Australian Vendor Trading Terms

　

In these Vendor Trading Terms (“Terms”) “we” “us” or “our” means Australian Winner International Exhibition Pty Ltd (so called AWIE in this document), and “you” means the Vendor. All Capitalised terms have the meaning given to them in the “Definitions” section to these Terms.

 

       1. PURCHASE AND DELIVERY

From time to time we may give you a Purchase Order for you to supply us with the Goods. You must supply and deliver the Goods in accordance with the time, location, volume and other requirements set out in the Purchase Order and these Terms. We are under no obligation to issue a Purchase Order or any number of Purchase Orders over a particular period.

Subject to Section 3, delivery will be deemed to have taken place:-

In Australia: - once a Goods Receiving Note has been signed by our authorised officer at the point of receipt into our premises and provided to you or as otherwise agreed in writing between the parties;

In PR China: - at the point of acknowledgement of receipt into our premises or as otherwise agreed in writing between the parties.

In no circumstances will we pay a separate charge, fee or levy of any kind for freight or delivery of the Goods to us. You must keep records in relation to any Purchase Orders and the delivery of the Goods.

 

2 PURCHASE PRICE AND FEES

2.1 Price

Subject to section 2.3, the price of the Goods is set out in the Purchase Order. As agreed between the parties, you acknowledge that some agreed cost of Goods reductions or other price reductions such as business volume rebates will be:

a) deducted off the invoice price of the Goods by you; or

b) deducted from the payment for the Goods by remittance.

2.2 Invoicing

An invoice setting out all details regarding pricing must:-

In Australia: - accompany the relevant Goods when they are delivered in accordance with section 1.

In PR China: - be sent direct to the Purchaser’s PR China Support Office to coincide with the delivery of the Goods and must not accompany the relevant Goods when they are delivered in accordance with section 1.

2.3 Payment

Subject to section 2.4 we will pay all rendered invoices on the settlement terms set out in the Purchase Order or specified in the Vendor Trading Terms.

2.4 Disputed invoices

If at any time we dispute the amount of an invoice or the Goods to which the invoice relates do not meet the standards prescribed by these Terms, we do not have to pay the disputed invoice until the dispute is resolved or, if the disputed invoice has been paid by us, we can deduct such amount from any moneys due to you. You may not wholly or partially suspend, cancel or withdraw the provision of the Goods or terminate these Terms, if an invoice is disputed.

3 REJECTED GOODS

If at any time, whether after delivery of or payment for the Goods and notwithstanding our acceptance of the Goods, we find that the Goods do not meet the standards and the requirements set out in these Terms, we may notify you that we have rejected the Goods (“Rejected Goods”), return the Rejected Goods to you at your own cost, and require you to replace or repair the Rejected Goods immediately at your own cost; not pay for the Rejected Goods or require you to refund any payments we have made to you for the Rejected Goods; or require you to pay to us our reasonable costs incurred in obtaining the Goods from someone else. After we notify you of the Rejected Goods, the Rejected Goods will be at your risk.

4 YOUR WARRANTIES

On each occasion that you fulfil or purport to fulfil a Purchase Order, you warrant to us that:

    a) the Goods are manufactured, grown, extracted, produced, packaged, labelled, presented, supplied and described in compliance with all Legislation and/or Regulations which apply to or affect the Goods and with the Procedures and the relevant Purchase Order;

    b) the Goods are of a particular standard, quality, value, grade, composition, style or model which you have previously represented by sample or conduct and are of merchantable quality, fit for any usual or customary purpose and fit for sale by us to the public;

    c) the price at which you supply the Goods to us is always your best “parcel rate” or list price;

    d) the artwork, get up and design of the Goods do not infringe any intellectual property, patent, copyright, trade mark or design or any Legislation and/or Regulations;

    e) you have the title and the right to sell the Goods to us, free of all encumbrances, and we will enjoy quiet possession to the Goods;

    f) if you enter into these Terms acting as an agent for another party, you are authorised to act for your principal in the manner contemplated by these Terms and your authority has not been withdrawn or revoked;

    g) you have all power and authority to enter into these Terms and the person executing these Terms on your behalf is authorised to do so; and

    h) In PR China – you will ensure at all times that facilities for the repair of the Goods and the supply of parts for the Goods are available for a reasonable period after delivery.

 

5 INDEMNITY

a) You indemnify us upon demand against all loss, damage, costs (including legal costs on a solicitor and own client basis) or liability whatsoever suffered or incurred by us, arising whether directly or indirectly, as a result of;

(i) any breach of these Terms;

(ii) In Australia – a classification of the Goods as either taxable or GST free by the ATO which is different to your classification of the Goods under section 7.1 (d); and

(iii) In PR China - a failure of any Goods, when sold by the Purchaser, to comply with any warranty or guarantee applicable to the Goods under any Legislation and/or Regulations.

b) The amount of any loss claimed by us pursuant to section 5(a) will be reduced proportionately to reflect any loss which it can be established was caused by our own negligence.

6 INSURANCE

You must have and maintain a Public Liability/Products Liability Policy for personal injury or property damage caused by the Goods in either Australia or PR China (as the case may require) in an amount of no less than $10,000,000 (in the currency of Australia or PR China as the case may require) for any one claim (unless we advise you of another amount). The policy must be held with a reputable Australian or PR China insurer (as the case may require) and you must show evidence of the policy (e.g. a certificate of currency) upon our request.

7 GST (In Australia)

7.1 Unless otherwise stated in this section, terms used in this section have the same meaning given to them in the GST Law:

  a) Each price stated in the Purchase Order and/or a Tax Invoice will be inclusive of any GST.

  b) You will provide us with a Tax Invoice by the end of the calendar month in which the Goods are supplied or, in the case of an adjustment note, in a timely manner.

  c) In addition to the Rebates, you will pay to us any GST, for which we become liable, in respect of these Rebates.

  d) You will inform us whether or not the Goods are to be treated as GST free. You are aware that we will rely on your information regarding classification of the Goods as taxable or GST free.

 

7.2 GST (in PR China)

Unless otherwise stated in this section, terms used in this section have the same meaning given to them in the GST Law:

    a) Each price stated in the Purchase Order and/or a Tax Invoice will be exclusive of any GST.

    b) You will provide us with a Tax Invoice by the end of the calendar month in which the Goods are supplied or, in the case of a debit note or credit note, in a timely manner.

    c) In addition to the Rebates, you will pay to us any GST, for which we become liable, in respect of these Rebates.

    d) You will inform us whether or not the supply of Goods is zero rated for GST purposes. You are aware that we will rely on your information regarding classification of the Goods as zero rated for GST purposes.

 

8 TERMINATION

8.1 Our rights to terminate

We may terminate these Terms or any Purchase Order for the Goods after giving you notice in writing if:

    a) you have breached or are in breach of any of the warranties that you gave us under section 4;

    b) we have received, in our absolute discretion, an unacceptable number of complaints about the Goods;

    c) the Goods are not supplied in accordance with the delivery schedule as set out in the Purchase Order;

    d) we reasonably believe that the production, manufacture, packaging, quality, or fitness of the Goods is not satisfactory;

    e) you have breached or we reasonably believe that you will breach any of the provisions in these Terms; or

    f) an Insolvency Event occurs in relation to you.

 

8.2 Consequences of termination

After these Terms are terminated we may:

    a) refuse to accept any delivery and not pay for (or require a refund of any payment made for) any of the Goods under a Purchase Order that is not fulfilled or is in the process of being fulfilled at the time of termination;

    b) return (at your cost) any of the Goods delivered by you and not pay for (or require a refund of any payment made for) those Goods;

    c) recover from you any money spent by us in purchasing goods to replace those not delivered due to the termination of these Terms or the non-fulfilment of any Purchase Order; or

    d) without affecting any additional rights we have under section 3 in relation to Rejected Goods, arrange for goods that are the same as or similar to the Goods supplied by you pursuant to these Terms to be supplied by another person.

 

9 COMPLAINT PROCESS

We will refer any complaint received regarding the Goods directly to you. You must action the complaint with a response to the customer or complainant within 24 hours and, on request, provide copies of relevant correspondence. You must immediately forward to us any report made pursuant to an investigation into the complaint by any Government body or any researcher or research organisation with respect to the Goods.

10 ASSIGNMENT

10.1 Prohibition

You must not:

a) partially or wholly assign, novate, encumber or otherwise deal with your rights under these Terms; or

b) make any representations or warranties to any prospective assignee, successor or buyer of your business to the effect that these Terms will continue or we will continue to purchase Goods from you if you sell or agree to sell your business.

10.2 Sale of business

You acknowledge that these Terms automatically terminate if:

      a) if you sell or agree to sell your business; or

      b) if you are a body corporate, a Change of Control occurs, or occurs in respect of a party who Controls you.

 

11 SUB-CONTRACTING

11.1 Consent

You must not sub-contract or otherwise arrange, wholly or partially, for the Goods to be supplied, managed or represented by any other person (“Subcontractor”) without our prior written consent.

11.2 Supplier’s obligations

Before engaging or entering into an agreement with a Subcontractor, in addition to obtaining our consent under section 11.1, you must ensure that:

   a) the Subcontractor is suitable to assist in supplying the Goods;

   b) the assistance that the Subcontractor will give in supplying the Goods will consistently meet the standards and obligations required under these Terms; and

   c) to the extent applicable, the material provisions of these Terms are incorporated into a binding agreement between you and the Subcontractor (“Subcontract”), so that the terms and conditions of the Subcontract are substantially the same as the terms and conditions of these Terms.

 

11.3 No discharge

Irrespective of entering into the Subcontract or the provisions in it you are not discharged from any obligation or liability that you have to us under or arising from these Terms.

12 SERVICE LEVEL CREDIT REGIME

By giving you written notice, we may confirm our agreement that a Service Level Credit Regime will apply to the Goods.

13 DEVELOPED GOODS

By giving you written notice, we may at any time nominate any of the Goods as Developed Goods. If we make such a nomination you must supply any Developed Goods exclusively to us for the period set out in the written notice.

14 PRODUCT RECALL

         a) Subject to section 14(b), if a product withdrawal or recall occurs (where the Goods are withdrawn from show, recalled voluntarily or as a result of governmental direction), you indemnify us on demand for all loss, damage, costs or liability incurred by us as a result of the product withdrawal or recall, including:

 

(i) the cost to us of acquiring and holding (including storage and freight) the Goods;

(ii) the costs and losses of any withdrawal from sale (including loss of profits) and the return of the Goods to you or destruction of the Goods; and

(iii) legal costs on a solicitor and own client basis.

         b) Any amount claimed by us pursuant to the indemnity under section 14(a) will be proportionately reduced to the extent that any loss suffered by us can be established to have been caused by our own negligence.

 

15 GENERAL

      a) We may deduct any money you owe to us on any account whatsoever from any money which we may be liable to pay to you.

      b) Subject to section 3, title and risk in the Goods passes to us on our acceptance of the Goods. You shall not have claim or register any interest (including any security interest) in the Goods.

      c) If a dispute has not been resolved 21 days after written notification from one party to another, the parties must use their reasonable endeavours to resolve the dispute in accordance with the dispute resolution scheme set out in the Vendor Guide.

      d) Notwithstanding any other provision in these Terms, if there are any inconsistencies between any or all of a Purchase Order, your invoice or terms, any record of any other agreement you may have with us or these Terms, the provisions of these Terms prevail to the extent of the inconsistency.

      e) A single or partial exercise or waiver by a party of a right relating to these Terms does not prevent any other exercise of that right or the exercise of any other right and a party is not liable for any loss, cost or expense of any other party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right.

      f) You acknowledge that we have entered into these Terms in reliance on the warranties you have made.

      g) You must not make any variation or modification to these Terms or any Purchase Order without our prior written consent.

      h) These Terms constitute the entire agreement between the parties in relation to the subject matter. All previous negotiations, explanations, understandings, representations, warranties, memoranda, commitments or information provided in relation to, or in any way affecting, the subject matter of this document are merged in and superseded by this document and will be of no force or effect whatsoever and no party will be liable to any other party in respect of those matters.

      i) We have no liability (in negligence or otherwise) with respect to projections or other information we may give you concerning our requirements for the Goods.

      j) In PR China - All representations, terms, warranties, guarantees or conditions implied by statute, common law or otherwise are excluded.

      k) These Terms are governed by the laws of the place of delivery of the Goods namely:

(i) In Australia - New South Wales;

(ii) In PR China - PR China

 

16. DEFINITIONS

“ATO” means the Australian Taxation Office or any relevant Court or Tribunal (as the case may be);

“Change of Control” means a change in the identity of the person or persons who as at the date of these Terms is or are able to Control an entity (including a Corporation).

“Control” of an entity includes:-

In Australia - the definition of “Control” in section 50AA of the Corporations Act and in the case of a Corporation includes the power (whether it is legally enforceable or not) to control, whether directly or indirectly, the composition of the board of directors of that Corporation, the voting rights of the majority of the voting shares of the Corporation or the management of the affairs of the Corporation.

In PR China – the definition of “Control” in Subpart OD of the Income Tax Act 2004 (CN) and, for the avoidance of doubt in the case of a Corporation, includes the power (whether it is legally enforceable or not) to control, whether directly or indirectly, the composition of the board of directors of that Corporation, the voting rights of the majority of the voting shares of the Corporation or the management of the affairs of the Corporation.

Corporation means:-

In Australia – “corporation” as defined in section 57A of the Corporations Act 2001 (Cth).

In PR China – registered companies in PR China (CN).

“Corporations Act” means :

In Australia - the Corporations Act 2001 (Cth) and the Corporations Regulations made under it, as amended from time to time.

In PR China - as amended from time to time.

“Consumer Benefit” means a unique form of packaging or presenting the Goods with the intention of increasing sales, including but not limited to “2 for the price of 1” sales, premium give-aways and on-label redemption offers.

“delivered or delivery” means documented receipt and acceptance of the Goods by us on either an FIS, FOB or EX-WH basis by an authorised officer.

“Developed Goods” means any of the Goods which possess a combination of unique elements developed as a result of Australian Winner International advising you of customer and market feedback in respect of the Goods, including any one or more of the following:

       (a) size;

       (b) weight;

       (c) “get up” or packaging design;

       (d) labelling design;

       (e) the existence of a Consumer Benefit; or

       (f) flavour or ingredient mix.

 

“EX-WH” means exit from your warehouse(s)/store(s).

“FIS” means free into our/our clients’ warehouse(s)/store(s).

“FOB” means free on board.

“GST” means goods and services tax imposed under the GST Law;

“GST Law” means:

• In Australia - A New Tax System (Goods and Services Tax) Act 1999 (as amended) and related Law.

• In PR China - Goods and Services Act 1985 (as amended) and related Law.

 

“Goods” means any item sold by you to us under these Terms and pursuant to a Purchase Order.

“Goods Receiving Note” means a note, in a form to be decided by us (electronic or otherwise), confirming to you that delivery has taken place.

“Insolvency Event” means any of the following:

a) insolvency;

b) you indicate that you do not have the resources to perform a Purchase Order;

c) an application for winding up is made and not stayed within 14 days, or a resolution for winding up is passed;

d) a winding up order is made;

e) a controller, administrator, receiver and/or manager, statutory manager, provisional liquidator or liquidator is appointed;

f) a mortgagee enters the possession of any of your property;

g) notice is given of a meeting of creditors for the purposes of a deed or scheme of arrangement; or

h) any actions of a similar effect to those set out above are taken.

“Investment Buy Rebate” means the discount allowed in substitution for a “cost reduction” purchase and/or a “cost increase” purchase.

“Legislation and/or Regulations" means Federal, State, territorial or local government legislation and/or regulations of Australia or PR China (as the case may be) including, but not limited to, the Trade Practices Act 1974 (Australia) and the relevant regulations of China (PR China).

“New Vendor Guide” means the Australian or PR China version (as the case may be) as updated by us from time to time.

“Procedures” means the Packaging Guidelines, the AQA, the New Vendor Presentation Kit, the National Packaging Covenant and such other operating policies and procedures available by accessing the Australian Winner International Vendor’s Web Site at http://www.australianwinner.com and as updated by us from time to time.

“Packaging Guidelines” means our packaging guidelines as updated by us from time to time.

“Purchase Order” means a written order submitted by us to you requesting that you supply a specified number of Goods in accordance with these Terms.

“Purchaser” means:-

In Australia _ Australian Winner International Limited ABN 94 102 915 515 or any business or subsidiary of Australian Winner International. In PR China or any business or subsidiary of the respective companies.

“Rebates” means the agreed cost of Goods reductions or other price reductions such as business volume rebates in section 2.1.

“Service Level Credit Regime” means a regime, the terms of which will be confirmed to you in writing, under which you must make a payment to us if prescribed performance criteria are not met.

“Tax Invoice” has the meaning as that term is defined in the GST Law and includes but is not limited to:-

• In Australia - an invoice or adjustment note in the form required by the GST Law identifying the amount and calculation of the GST payable in respect of the relevant Consideration.

• In PR China - an invoice or a credit or debit note in the form required by the GST Law identifying the amount and calculation of the GST payable in respect of the relevant Consideration.

 

“AQA” means the Australian Winner International Quality Assurance Standard as updated by us from time to time.

“Ullage Allowance” means the discount allowed for damage and/or unsaleable Goods.

“Vendor” means the person or company (as defined in the Corporations Act) identified as the Vendor in these Terms and the Vendor Trading Terms.

“7 Days” means weekly payment with a weighted average 15/16 days from date of delivery of Goods.

“30 Days” means monthly payment with a weighted average 45/50 days from date of delivery of Goods.

“60 Days” means monthly payment with a weighted average 75/80 days from date of delivery of Goods.