To the fullest extent legally possible all contracts, dealings and/or arrangements made between Sprout Organic Pty Ltd ACN 639 172 517 (“Sprout”) and any Customer (“Customer”) relating to any goods, products, services or materials supplied or to be supplied by Sprout to the Customer (“Goods”) are subject to the following Terms and Conditions of Trade (“these Terms”) unless otherwise agreed in writing.
- The Customer must pay for the Goods in full prior to taking delivery of the Goods.
- If the Customer has completed a credit application and Sprout has notified the Customer in writing that Sprout has granted credit to the Customer, payments are to be within 30 days of invoice date without deduction or set-off of any kind.
- Sprout may apply a payment received from the Customer to any amounts owed by the Customer (including part payment of an invoice, administration, collection and other costs) in any order.
- Sprout is entitled to set-off or deduct any amount payable by Sprout to the Customer.
- Sprout may require the Customer to pay a credit card surcharge (in addition to any payment) of up to 2.5% of the invoiced amount plus GST of the payment amount where the Customer pays by credit card.
- A payment dishonour fee may be charged by Sprout if a Customer’s payment is dishonoured in any way. This fee will be in addition to any fees the Customer’s financial institution or credit provider my charge the Customer.
2. Retention of Title and liability for goods
- Immediately upon delivery the Customer accepts risk and liability for the Goods.
- A document signed by an officer of Sprout identifying Goods and certifying that monies are owing to Sprout will be conclusive evidence of Sprout’s title thereto.
- Sprout retains legal and equitable title in any Goods supplied to the Customer until payment in full for or in connection with the supply of the relevant Goods has been received by Sprout (“Full Payment”). Until Full Payment has been received, the following terms apply:
- Notwithstanding that title in the Goods remains with Sprout until Full Payment, the Customer may sell or use the Goods in a manufacturing or construction process in the ordinary course of the Customer’s business. As between the Customer and the purchaser of any item of the Goods, the Customer sells as principal and not as agent of Sprout. The proceeds of sale of each item of Goods must be held by the Customer in a separate fund on trust for Sprout and the Customer is under a duty to account to Sprout for such proceeds. The creation of, or any failure of, any such trust shall not in any way limit the obligation of the Customer to pay an amount to Sprout for Goods supplied;
- Until Goods are sold or used in a manufacturing or construction process, the Customer must keep the Goods safe and free from deterioration, destruction, loss or harm, clearly designate the Goods as the property of Sprout, store them in such a way they are clearly identified as the property of Sprout and keep full and complete records, firstly, of the physical location of the Goods and, secondly, the ownership of the Goods by Sprout;
- Sprout is irrevocably entitled at any time and from time to time before sale of any item of Goods by the Customer to inspect or to recover and retake possession of such Goods and otherwise exercise in relation to the Goods any of its rights whether those rights are as owner and/or unpaid seller or otherwise and whether those rights are conferred by common law, contract, statute or in any other way. In order to exercise such entitlement, Sprout and its agents are irrevocably authorised by the Customer to enter any of the Customer’s premises or vehicles or those of any third party. The Customer agrees to obtain the consent of any such third party to such entry by Sprout and to indemnify Sprout and its agents for any liability arising from any entry upon such third parties’ premises or vehicles. Sprout and its agents agree to take all reasonable care in removing the Goods from such premises or vehicles but, to the extent this liability may be disclaimed by law, are not liable for any damage or injury to such premises caused by the removal of the Goods; and
- this reservation of title and ownership is effective whether or not the Goods have been altered from their supplied form, or commingled with other goods.
- Clause 2 is not intended to create a charge and must be read down to the extent necessary to avoid being a charge.
- The retention of title arrangement described in this clause 2 constitutes the granting of a purchase money security interest by the Customer in favour of Sprout in respect of all present and after acquired Goods supplied by Sprout to the Customer and the Customer must immediately, if requested by Sprout, sign any documents, provide all necessary information and do anything else required by Sprout to ensure that Sprout’s purchase money security interest is a perfected security interest and the provisions of clause 38 will apply.
- The Customer will not enter into any security agreement that permits any other person to have or to register any security interest in respect of the Goods or any proceeds from the sale of the Goods until Sprout has perfected its purchase money security interest.
3. Limitation of Liability
To the extent permissible at law (including under the Australian Consumer Law):
- Sprout will not be liable for any claim arising after 7 days from delivery of Goods or performance of services (or at all once Goods have been unpacked, modified, on-sold or otherwise used or applied) after which there will be deemed to be unqualified acceptance.
- Sprout will not be liable in any way for any contingent, consequential, direct, indirect, special or punitive damage arising whether due to Sprout’s negligence or otherwise and the Customer acknowledges this limit of liability and agrees to limit any claim accordingly.
- no other term, condition, agreement, warranty, representation or understanding whether express or implied in any way extending to or otherwise relating to or binding upon Sprout is made or given except where done so in writing and signed by an authorised officer of Sprout or is explicitly set out in these terms.
- Sprout will not be liable for any claim relating to or arising from any alleged fault or defect, caused, or contributed to by the Customer or any third party.
To the extent permissible at law (including under the Australian Consumer Law):
- if Sprout elects to take back product it must be in as new and saleable condition and upon terms agreed and a re-stocking fee will apply.
- custom made or custom processed Goods or Goods acquired by Sprout specifically for the Customer will not be returnable.
- any Goods which are accepted by Sprout as defective may be returned and will be replaced free of charge or be the subject of a credit for the invoiced value. “Free of charge” does not include labour, transport or material costs.
- credits will not be accepted later than 28 days after invoice date.
5. Specific Order
Sprout may set specific terms from time to time in relation to customer specific orders (e.g. full pre-payment, deposit etc.). Customer specific orders include, but are not limited to, where the Customer requires a variation to standard packaging (e.g. inclusion of Customer’s logo), change to ingredients etc.
6. Placement of Orders
- To the extent permissible by law (including under the Australian Consumer Law), if any dispute arises concerning any order (and including any measurement, quality, quantity, identity, or authority or any telephone, facsimile, e-mail or computer generated order) the internal records of Sprout will be conclusive evidence of what was ordered.
- Each order placed will be and be deemed to be a representation made by the Customer at the time that it is solvent and able to pay all of its debts as and when they fall due.
- Failure to pay in accordance with these Terms will be and be deemed to be conclusive evidence that the Customer had no reasonable grounds for making the representation referred to in clause 6 (b) and that the representation was unconscionable, misleading and deceptive.
- When any order is placed, the Customer must inform Sprout of any material facts which would or might reasonably affect the commercial decision by Sprout to accept the order and/or grant credit in relation thereto. Any failure to do so will create and be deemed to create an inequality of bargaining position and will constitute and be deemed to constitute the taking of an unfair advantage of Sprout and to be unconscionable, misleading and deceptive.
- To the extent permissible at law (including under the Australian Consumer Law), Sprout accepts no responsibility for delivery but may elect to arrange delivery at its discretion and without any liability and at the Customer’s costs and responsibility in all things.
- Sprout reserves the right to charge for any delivery.
- The Customer will be deemed to have accepted delivery and liability for the Goods immediately after Sprout notifies that they are ready for collection or when they are delivered to a carrier or to the Customer’s business premises or site whether attended or not.
- A document (including without limitation a consignment note) purporting to be signed by an officer of Sprout confirming delivery will be conclusive evidence of delivery as will any signed delivery docket.
- To the extent permissible at law (including under the Australian Consumer Law), Sprout will not be liable for delay, failure or inability to deliver any Goods.
- Once the Customer has been notified that Goods are ready for collection, the Customer agrees to pay all costs of holding or handling Goods.
- Frustrated Delivery If time spent delivery exceeds 30 minutes or requires more than one attempt, the Customer agrees to pay all costs relating thereto.
Variation or cancellation of any order, dealing or arrangement must be agreed to in writing.
To the extent permissible at law (including under the Australian Consumer Law):
- no dealing with the Customer will be deemed to be a sale by sample or description.
- if Sprout publishes material about its Goods and prices, any part which is incompatible with these Terms is expressly excluded.
- the Customer will rely on its own knowledge and expertise in choosing any product for any purpose.
- any advice or assistance given for or on behalf of Sprout must be accepted at the Customer’s risk and must not be or be deemed given as expert or adviser nor to have been relied upon.
If a provision of these Terms would but for this clause, be unenforceable, that provision must be read down to that extent necessary to avoid that result and if that provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of these Terms.
11. Purchase Price
- All sales are made by Sprout at its ruling price at the time of delivery unless otherwise agreed in writing by Sprout.
- All government imposts and any GST (“imposts”) will be to the Customer’s account. Sprout’s price lists exclude Imposts unless expressly noted thereon.
To the extent permissible at law (including under the Australian Consumer Law), default or breach by the Customer of these Terms or in any dealings with Sprout will entitle Sprout to retain all monies paid, call-up all monies due or owing (whether currently due and owing or not) cease further deliveries and recover from the Customer all loss of profits without prejudice to any other of its rights under these Terms or at law.
13. Product and Services
- Sprout may update, modify, make substitution or alter any of its Goods or any component or raw material or ingredients incorporated in or used in forming any part of any Goods as part of its ongoing business. The Customer agrees to accept current Goods in substitution of any Goods ordered provided they are not materially different.
- To the extent permissible at law (including under the Australian Consumer Law), Sprout disclaims any responsibility or liability relating to any Goods:
- processed or made to designs, drawings, specifications or measurements etc. or with materials which are provided or approved (whether in part or fully) by or on behalf of the Customer: and/or
- utilised, sorted or handled incorrectly or inappropriately.
14. Other Terms
Terms and/or conditions sought to be imposed by the Customer upon Sprout will not apply unless agreed in writing by Sprout.
15. Recovery Costs
The Customer will pay ( on a full indemnity basis) all costs and expenses of Sprout, its legal adviser, mercantile agents and others acting on its behalf in respect of anything instituted or being considered as a result of any breach of these Terms or breach of any dealings with Sprout.
To give effect to its obligations arising under these Terms (and especially clause 20) the Customer hereby irrevocably appoints any director of Sprout from time to time, as its attorney.
17. Customer Restructure
- The Customer will notify Sprout of any change in its structure or management including any sale in or disposition of any part of the business of the Customer, any change in director, shareholder, management, partnership or trusteeship or sale of any material part of its business (“Restructure”) within 7 days of any such change.
- The Customer agrees it:
- will cause any new entity created by virtue of a Restructure (“New Entity”) to be bound by the Terms; and
- will continue to be bound by these Terms despite a Restructure and will indemnify Sprout for any loss or damage it suffers as a result of a breach of these Terms by the New Entity.
All contracts made with Sprout will be deemed to be made in the State of Queensland in Australia and the parties submit to the non-exclusive jurisdiction of the appropriate Courts in or nearest to Brisbane in that State.
If Sprout elects not to exercise any rights arising as a result of breach of these Terms it will not constitute a waiver of any rights relating to any subsequent or other breach.
20. Security for Payment
The Customer agrees subject to clause 38, that:
- despite anything to the contrary contained therein or any other rights which Sprout may have howsoever, where the Customer is the owner, or becomes the owner in the future, of land realty or any other asset capable of being charged (“Asset”) the Customer agrees, upon Sprout’s written request to mortgage and/or charge all of their joint and/or several interest in the Asset to Sprout to secure all amounts and other monetary obligations payable by the Customer to Sprout;
- it grants a lien to Sprout over all of its property in the possession or control of Sprout until Full Payment;
- it will execute any documents and to do all things requested by Sprout to register a mortgage (or such other security Sprout requires) over any current or later acquired real property the Customer has an interest in;
- it consents unconditionally to Sprout lodging a caveat noting Sprout’s interest in any current or later acquired real property the Customer has an interest in; and
- any officer of Sprout may (without limitation) sign documentation to effect the Customer’s compliance with this clause 20.
21. Force Majeure
Sprout will not be in default or breach of any dealings with the Customer as a result of force majeure (i.e. anything beyond Sprout’s reasonable control).
The Customer must pay for all Goods provided to or ordered by the Customer as “sampling” unless otherwise agreed in writing.
23. Intellectual Property
- If Sprout utilises any design patent or intellectual property or follows any instruction provided by or on behalf of the Customer, the Customer indemnifies Sprout against any claim, proceeding, damages or liability for any loss cost or expense arising as a result whether for any alleged infringement of any intellectual property or otherwise.
- The Customer must not advertise, use or represent any intellectual property of Sprout or of any Goods themselves in any way without the prior written consent of Sprout.
- If the Customer breaches or permits any breach of this clause 23, it acknowledges Sprout may suffer claims by third parties as a result (e.g. by models whose images are reproduced without authority and/or by parties who are entitled to exploit any intellectual property) and clause 32 will apply.
- All rights in recipes and processes remain with Sprout unless other agreed in writing by Sprout.
- The Customer is not granted any right in Sprout’s recipes or processes by virtue of such recipes or processes being incorporated into a Customers’ product.
Any discount offered by Sprout is at its complete discretion and will only be available provided the Customer is not in breach of any part of these Terms nor in default in any of its dealings with Sprout.
- Any illustration drawing or specifications supplied by Sprout (“Specs”) are drafts and approximates and are for illustration purposes and the Customer should not rely on the accuracy of such Specs in any way.
- Any tangible or intellectual property rights in Specs remain the property of Sprout and may be recalled at any time.
- Specs are to be treated at all times as confidential and not made use of without the prior written consent of Sprout.
26. No Set-Off
No set off or counterclaim will be made or applied by the Customer until payment in full of all bona fide invoices raised by Sprout (whether current or overdue) and this clause may be pleaded as a bar to any action taken prior to such payment in full.
27. Trusts and Companies
The Customer agrees that these Terms bind it not only in its own capacity but also as the Trustee of every trust of which it is a trustee. The Customer also agrees to procure each of its directors to execute an agreement to guarantee and indemnify in favour of Sprout and in the form approved by Sprout to be returned to Sprout at the same time as the signed credit application.
28. No Merger
Termination of these Terms and/or dealings between the Customer and Sprout (“Cessation”) will not end those provisions of these Terms that are capable of surviving Cessation.
29. Stock Discretion
Sprout has a continuing discretion to allocate available stock and gives no warranty as to certainty of supply unless expressly agreed in writing in advance.
30. Partial Delivery/Forward Orders
If the Customer places forward orders or request partial or instalment delivery, the Customer agrees:
- to pay for so much of any order as is from time to time delivered by Sprout: and
- that no delay or failure to fulfil any part of any order will entitle the Customer to cancel or vary any order or delay or reduce any payment.
31. Acceptable Variation
The Customer will accept variation in quantities at plus or minus 5% and will pay pro-rata for the actual quantity delivered.
To the extent permissible at law (including under the Australian Consumer Law), the Customer indemnifies Sprout against any claim or loss arising from or related in any way to any contract or dealing between Sprout and the Customer or anything arising there from or arising as a result of or subsequent to any breach of these Terms by the Customer.
If the Customer commits or is involved in any act of insolvency, it will be deemed in default under these Terms. An act of insolvency includes bankruptcy, liquidation, receivership, administration or the like and failure to pay in accordance with these Terms.
34. All Divisions
The Customer agrees that these Terms will apply to all dealings between the Customer and Sprout and any part or member of the Sprout Group.
In the event of a product recall (“Recall”) the Customer must give Sprout such assistance as Sprout reasonably requires in relation to that Recall.
The Customer will return all pallets and any re-useable packaging provided with Goods and indemnifies Sprout for the full replacement cost thereof, if not returned to Sprout promptly and in good order.
37. Exclusion of warranty
To the extent permissible at law (including under the Australian Consumer Law), Sprout is not bound by any warranty (and the Customer agrees not to make any claim against Sprout in relation to any warranty) in respect of Goods or services unless all Goods and services have paid for in full without set-off or deduction of any kind.
38. Personal Property Securities Act 2009
- Where the Personal Property Securities Act 2009 (“PPSA”) is in force, the Customer acknowledges that these Terms create a security interest under the PPSA in all Goods supplied by Sprout to the Customer, and for avoidance of doubt, the proceeds of sale of those Goods.
- The Customer consents to Sprout effecting a registration on the PPSA register (in any manner Sprout considers appropriate) in relation to any security interest contemplated by these Terms (including but not limited to an interest under clause 2 and 20) and further agrees:
- to do all things necessary and required by Sprout to make sure that the security interest is a perfected “purchase money security interest” under the PPSA; and
- not to allow any third party to acquire a security interest in the Goods.
- To the extent that the Goods are for the Customer’s business use, the Customer agrees to the extent permitted under the PPSA, that the Customer has no right:
- to receive notice of removal of an accession under the PPSA;
- under Chapter 4 if the PPSA; or
- under the PPSA to receive a copy of any verification statement or a financing statement under the PPSA.
- Without in any way limiting clause 38(c) the Customer agrees that to the extent permitted under the PPSA, the Customer hereby waives its rights under sections 95, 96, 117, 118, 120, 121 (4), 123, 125, 126, 128, 129, 130, 132, 134, 135, 142 and 143 of the PPSA.
- Unless otherwise agreed to in writing by the Seller, the Buyer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
- The Customer hereby waives its rights to receive notices under sections 95, 118, 121 (4), 130, 132 (3) (d) and 132 (4) of the PPSA.
- The Customer must not assign or grant a security interest in respect of any accounts owed to it in relation to the Goods without Sprout’s prior written consent.
- Without limiting any other provision of these Terms, if the Customer makes a payment to Sprout at any time whether in connection with the supply of Goods or otherwise, Sprout may at its absolute discretion apply that payment to first satisfy obligations that are not secured, then obligations that are secured, but not by a purchase money security interest, in the order in which those obligations were incurred, and then obligations that are secured by a purchase money security interest in the order in which those obligations were incurred.
39. The Competition and Consumer Act 2010 (Cth) and Fair Trading Acts
- Nothing in these Terms is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
- If the Customer is a consumer for the purposes of the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (“ACL”), nothing in these Terms limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.
40. Compliance with Lease and Superannuation Obligations
The Customer warrants that:
- If its business premises are subject to a lease, it is in full compliance with the terms of its lease of premises (including up to date payment of all money payable under the lease; and
- it is in full compliance with its superannuation obligations including those owed to its employees.
41. Limitation of Liability
This clause 41 is subject to any contrary provisions of any applicable law (including without limitation the Australian Consumer Law Schedule of the Competition and Consumer Act 2010), the operation of which cannot be excluded.
- Except as provided in clause 41(c), Sprout’s liability for a breach of these terms, a condition, warranty or a guarantee of supply or in relation to defective goods and services is limited to (at Sprout’s election):
- in the case of goods Sprout supplies:
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods; or
- the payment of the cost of replacing the goods or of acquiring equivalent goods;
- in the case of services Sprout supplies, the supplying of the services again, and the Customer will limit any claim upon Sprout accordingly.
- If goods or services Sprout supplies are of a kind ordinarily acquired for personal, domestic or household use or consumption, and there is a “major” failure of the goods or services to meet any consumer guarantee under Schedule 2 (The Australian Consumer Law) of the Competition and Consumer Act 2010 (Cth) then the Customer may choose one of the following remedies:
- in the case of goods Sprout supplies:
- ask for a refund;
- return the goods and ask for an identical replacement, or one of similar value if reasonably available; or
- keep the goods and ask for compensation for the drop in value caused by the problem; or
- in the case of services Sprout supplies:
- cancel the contract and pay a reasonable amount for the work done, or seek a refund; or
- for money already paid, keep the contract and negotiate a reduced price for the drop in value of the service — this may mean asking for some of the money back the Customer has already paid.
42. Approved Website
Subject always to clause 43 below, the Customer must not sell the Goods on a website unless the prior written permission of Sprout to sales on that website (“Approved Website”) has been obtained.
43. General Web Site Restrictions
- The Customer must not allow an Approved Website or any other website to link to, or provide data feeds to, any “transactional website” or permit any transactional website to link to an Approved Website or any other website. For the purpose of this clause 43, “transactional website” shall mean a shopping portal, online marketplace such as Ebay, or any other website which either:
- is capable of accepting orders from consumers; or
- creates the perception that orders are accepted on the site, although the consumers are redirected to other third party websites for order placements.
- The Customer must not use:
- the words “Sprout Organic” or “Sprout”;
- any Sprout trademarks or any trademarks owned by the brands it distributes; or
- the names of any brands, or any words associated with the brands, Sprout distributes,
- in metadata on the Approved Website or any other website;
- as internet search terms; or
- in any domain name or URL address.
- The Customer must not purchase or register:
- the words “Sprout Organic” or “Sprout”; any Sprout trademarks or any trademarks owned by the brands it distributes; or
- the names of any brands, or any words associated with the brands, Sprout distributes.
- The Customer must not allow any fulfilment house or any other third party to fill consumer orders of Goods placed through an Approved Website or any other website.
44. Sales and Distribution
- To the extent permissible at law (including under the Australian Consumer Law), the Customer must not directly or indirectly offer for sale, sell, divert, ship, distribute or otherwise dispose of Goods to:
- any distributors, wholesalers or retailers;
- any “e-tailer”; or
- to any other person or entity under circumstances where the Customer knows or should know, based on the circumstance of the transaction, that the Goods are intended for resale or will likely be resold.
- The Customer agrees to cooperate with Sprout to ensure compliance with the provisions of this clause 44(a), which will include the right for Sprout to inspect the Customer’s books and records upon reasonable notice during business hours. The Customer further agrees to reimburse Sprout for any costs incurred as a result of the Customer’s breach of clause 44, including reasonable legal fees, investigator’s costs and costs to repurchase diverted Goods.
45. International Sales
To the extent permissible at law (including under the Australian Consumer Law), if the Customer is an Australian entity, it must not offer for sale, distribute or ship Goods outside of Australia.
46. International customers
If the Customer is an international entity:
- it is the Customer’s sole responsibility to be aware of all local laws and regulations that apply to the Customer; and
- the Customer agrees that it is responsible for any freight, customs clearances, government fees and charges (as the case may be), unless otherwise agreed in writing between the Customer and Sprout.
47. Counterfeit Products
The Customer must not manufacture, purchase or sell, offer to sell, or distribute, including at no cost, counterfeit product of the brands represented by Sprout.
48. Termination of Supply
- Sprout may terminate supply without notice if the Customer is in breach of any of these Terms upon which the Customer agrees to immediately stop selling the Goods and return any unsold Goods to Sprout.
- The Customer agrees that upon Sprout’s request, it will immediately remove all references to Sprout and the Goods from its advertising and marketing materials and its websites. All costs and losses in relation to such removal will solely be borne by the Customer.
THE FOLLOWING TERMS APPLY TO ALL CUSTOMERS THAT MAKE A CREDIT APPLICATION
49. Credit information and Privacy Act 1988 (Cth)
The Customer authorises Sprout to:
- obtain credit information about its personal, consumer and commercial credit worthiness from any bank or trade referee disclosed in any credit application completed by it (“Credit Application”) and provided to Sprout and from any other credit provider or credit reporting agency for the purpose of assessing its Credit Application, or in connection with any guarantee given by the Customer;
- use, disclose or exchange with other credit providers and other Sprout entities information about the Customer’s credit arrangements in order to assess its Credit Application, monitor credit worthiness and collect overdue accounts; and
- disclose the contents of any credit report on the Customer to any of its related entities, and any of their solicitors and mercantile agents.
50. Credit Line
Sprout can vary or withdraw any credit facility or limit at any time at its discretion and without any liability to the Customer or any other party.
The Customer declares and warrants that any credit will be used wholly or predominantly for commercial, business and/or investment purposes (or both) and not for the Customer’s personal, domestic or household purposes.
Personal Consumers: You should not sign this Application (which includes the declarations and warranties in this clause 51 unless credit is wholly or predominantly for business or investment purposes. By signing, you may lose protection under the National Consumer Credit Protection Act 2009 (Cth) (or the equivalent) and/or the Competition and Consumer Act 2010 (Cth) etc. You should cross-out this clause 51 unless credit is predominantly for commercial and/or investment purposes (or both).
52. Inactive accounts
If a Customer has not used a credit facility for 12 months, a new Application for Commercial Credit Account may be required to be completed and submitted, but this will be in addition to (and will not derogate from nor affect) any obligation of the Customer, the Agent or any Guarantor which arose under any preceding Application for Commercial Credit Account or Agreement to Guarantee and Indemnify.