SUPERIOR FOOD GROUP TERMS AND CONDITIONS OF TRADING AGREEMENT

Superior Food Group Pty Ltd (15 607 519 737) and each subsidiary, affiliate, associated company and related entities

These Trading Terms shall govern the sale and delivery of goods by Superior Food Group to its Customers (“the Customer”).

Application of Terms and Account Procedures

1. These terms and conditions shall apply to the exclusion of all other terms and conditions including but not limited to any terms and conditions of the Customer. If the Customer does not wish to receive goods on the terms and conditions set out in this Agreement (as amended from time to time), the Customer must notify Superior Food Group and return the goods to Superior Food Group within 48 hours of receipt or the date of amendment of this Agreement, otherwise the Customer will be deemed to have accepted the goods on the terms of this Agreement.
2. No Goods will be supplied by Superior Food Group to the Customer on any other terms or conditions other than those set out in this document.
3. Superior Food Group will only offer goods on credit and credit terms once a completed official Superior Food Group “Application for Commercial Credit Account” has been completed and subsequently approved by Superior Food Group as notified to the customer in writing.
4. Any subsequent store locations must also be approved by Superior Food Group before Superior Food Group products can be distributed from another outlet.
5. The granting of credit terms for new or existing accounts is entirely at Superior Food Group’ discretion and Superior Food Group may withdraw or vary credit terms upon 48 hours written notice to the Customer.
6. Superior Food Group reserves the right to refuse or cease supply to any Customer or prospective Customer for any reason and such reason will be notified to the Customer in writing.

Payment Terms

7. All accounts are due and payable within the given terms stated on the relevant invoice or statement or as otherwise notified by Superior Food Group on approved credit trading terms.

Defaults

8. Should the Customer fail to pay an account by the due date:

• Superior Food Group may charge interest on any overdue invoice at the rate of 18% per annum calculated and payable daily, compounded from the due date until the invoice is paid in full;
• Any discounts that apply (including but not limited to off-invoice discount and settlement discount) will be disallowed if payment is not received on or before the date required in accordance with these terms. Any disallowed discounts will be due and payable immediately;
• Where any part of the trading account has not been paid within the time specified in this agreement and has fallen into arrears then the totality of the account whether or not in arrears shall become immediately due and payable;
• The Customer’s account may at Superior Food Group’ discretion be subject to suspension of supply of goods or permanent closure upon the provision of 48 hours’ notice;
• Superior Food Group may take legal action to recoup any debt which is likely to result in the closure of the account;
• The Customer shall also be liable to pay all reasonable costs and expenses to Superior Food Group on demand (including without limitation all legal costs and disbursements on a solicitor/own client basis) and all mercantile agents fees incurred by Superior Food Group in recovering any amounts outstanding;
• The Customer agrees to provide full details of its credit card account to Superior Food Group. If the Customer’s account is not paid in full by the due date, Superior Food Group reserves the right to debit this amount to the Customer’s credit card together with any credit card fees that may be charged to Superior Food Group in respect of the transaction upon the provision of 24 hours’ notice in writing to the Customer. The Customer will be notified in writing of any amounts so debited and agrees to Superior Food Group charging 1.4% on account of fees if such payments are received using Visa / MasterCard, 2.5% on account of fees if such payments are received using American Express, and that such charges will be taken at time of processing.

9. Where any person has a financial interest in two or more Superior Food Group Accounts (“inter-related accounts”) and any one of the inter-related accounts fails to observe these trading terms then all inter-related accounts shall be subject to suspension of supply and account cancellation procedures and invoices rendered to all inter-related accounts shall become immediately due and payable.
10. An account may be subject to suspension or closure if the Customer breaches these Trading Terms or where any other guidelines or policies issued from time to time are not observed.
11. Any account together with any inter-related account will be immediately and permanently closed if in Superior Food Group’ sole opinion the Customer:

• sells or offers to sell or purchases counterfeit Superior Food Group products;
• engages in deceptive or illegal conduct that has an adverse effect on Superior Food Group; or
• on-sells or supplies Superior Food Group products to or purchases Superior Food Group products from non-approved outlets.

2. Should an account be closed, Superior Food Group may immediately reclaim any advertising or point-of-sale material incorporating Superior Food Group Trade Marks or other Superior Food Group intellectual property that has previously been supplied and the Customer irrevocably grants permission for Superior Food Group servants and agents to enter its premises to reclaim such material.

Payment Before Delivery Sales

3. For Payment Before Delivery Sales, full payment in the form of cleared funds must be received and verified by Superior Food Group prior to delivery of products being made. Superior Food Group shall at all times and at its sole discretion have the right to supply goods on a Payment Before Delivery basis and not offer credit irrespective of whether credit has been previously provided.

Payment On Delivery

4. For Payment On Delivery Sales, full payment must be received and verified by Superior Food Group drivers at the time of delivery for products being supplied. Superior Food Group shall at all times and at its sole discretion have the right to refuse to supply goods if Payment On Delivery basis is not made and not offer credit irrespective of whether credit has been previously provided.

Delivery Terms

• After payment has been confirmed the customer will be redirected to a confirmation page and will receive a second confirmation of order and payment to their nominated email account. 
• There is a maximum of 10 business days between order payment and delivery of the goods, cash sales cannot be placed more than 10 business days in advance. 
• Deliveries will be scheduled for the date chosen by the customer at checkout, we will contact you if there any changes to the expected delivery schedule.

Prices

5. The Customer acknowledges and accepts that orders are accepted for immediate shipment with the understanding that the products will be billed at the piece in effect at the time of order. All prices are subject to change without notice. 

Freight and Administrative Charges

• Superior Food Group shall bear all freight costs of delivering goods to the Customer where the Customer’s place of business is situated within a metropolitan area within Australia. A non-metro store is classed as any store outside of the metropolitan area of all capital cities of the States and Territories of Australia, which is determined by the additional charges passed onto Superior Food Group by our nominated freight company.
• Deliveries to non-metro stores shall incur a delivery fee per delivery as advised by Superior Food Group to the Customer from time to time.
• Superior Food Group shall not be liable for freight costs on any goods returned to it by the Customer where a Return Authorisation Number (RA No.) has not been arranged prior to return (see clause 18 below).

7. Where Customer orders are below a minimum commercial value determined by Superior Food Group then Superior Food Group will also levy an administration fee for each delivery. The minimum commercial value and administration fee will be advised by Superior Food Group and may be varied from time to time with prior written notice to the Customer.

Customer Returns

8. . The following rules apply in order for Customers returns claims to be accepted:

• The return of goods will not be accepted without prior authorisation from Superior Food Group or its authorised representative and for this to occur a Superior Food Group Return Authorisation Number (RA No.) must be obtained before returning any product (including faulty product) by contacting the Customer Service Department on 03 9538 0800 within 24 hours after delivery of the goods to the Customer;
• Returns of unpacked goods will not be accepted;
• Returns of Special Orders will not be accepted;
• Returns of goods received by Superior Food Group after the period specified by Superior Food Group when granting authorisation for the goods to be returned will not be accepted;
• In the event that Superior Food Group authorises a return of goods, no claim for the same shall be considered unless:

1. the goods are returned in the original packaging and in good order and condition;
2. All price stickers, security devices or other non-Superior Food Group labelling or items must be removed otherwise returns will not be accepted or a charge for removal will apply;

• The goods are accompanied by documentation showing:

1. The Customer’s name, address and account number/code;
2. The respective Superior Food Group invoice number;
3. Reason for return; and
4. The Superior Food Group Return Authorisation Number (RA No.);
5. Unauthorised or unacceptable returns may be returned to the Customer at the Customer’s expense;
6. Special Make-Up Orders and Custom Product Orders may not be returned;
7. Customers must return goods only by Superior Food Group’ nominated carriers (approved by Superior Food Group prior to the goods being freighted), otherwise freight will not be paid by Superior Food Group;
8. All returned goods shall be subject to an inspection by Superior Food Group or an authorised agent of Superior Food Group, before any claim will be considered;
9. Acceptance of the returned goods by Superior Food Group shall not constitute any acceptance of any claim; and
10. Superior Food Group reserves the right to raise credits at the lowest invoiced prices if original invoice details are not provided.

Other Claims

9. Short Delivery claims (where product is short delivered within the carton/s to the invoiced quantity) must be fully documented quoting the respective Superior Food Group invoice number and forwarded to the Superior Food Group Customer Service Department within 24 hours from the date of delivery of Goods to the Customer by Superior Food Group failing which all short delivery claims are time barred.
10. Non Delivery claims (when a full or part consignment has not been delivered to the invoiced quantity) must be fully documented quoting the respective Superior Food Group invoice number and forwarded to the Superior Food Group Customer Service Department within 24 hours from the date of invoice.
11. Incorrect pricing claims relating to either price, freight or administration charges, must be advised by the Customer to Superior Food Group within 24 hours of the invoice date in order for these claims to be considered.
12. All claims will be subject to investigation before a decision is made and any rejections by Superior Food Group will be communicated to the Customer. For the avoidance of doubt, non-compliance by the Customer with this Agreement will be considered in any investigation and may cause the claim to be rejected.

Cancellation of Orders

3. The following shall apply in relation to the cancellation of orders:

• Orders placed with Superior Food Group by the Customer shall not be cancelled without prior written approval of Superior Food Group;
• A request for cancellation will not be considered unless made in writing by the Customer to Superior Food Group and received by Superior Food Group not less than thirty (30) days prior to the scheduled delivery date;
• Special Make-Up Orders and Custom Product Orders may not be cancelled; and
• In the event that Superior Food Group accepts the cancellation of an order, Superior Food Group shall be entitled to charge any reasonable fees for the cost of work and materials and/or any administration costs incurred by Superior Food Group in preparing and cancelling the order.

Limitation of Liability

Loss or Damage in Transit

4. Superior Food Group is not responsible to the Customer or for any loss or damage to goods during transit caused by any event of any kind by any person (whether or not Superior Food Group is legally responsible for the person who caused or contributed to that loss or damage). Superior Food Group may provide the Customer with such assistance as may be necessary to press claims on carriers provided that the Customer:

• has notified Superior Food Group and the carriers in writing immediately after loss or damage is discovered on receipt of goods; and
• lodges a claim for compensation on the carrier within three (3) days of the date of receipt of the goods.

Exclusion and Limitation of Liability

5. Except as provided in these terms, and to the extent permitted by law, all express and implied warranties as to the supply of goods are expressly excluded. Superior Food Group is not liable to the Customer for any physical or financial injury, loss or damage or for direct, indirect or consequential loss or damage of any kind arising out of or in relation to the supply of the goods by Superior Food Group or arising out of any act or omission by Superior Food Group, its employees, servants and agents. Notwithstanding anything to the contrary contained in these terms, Superior Food Group’ liability is expressly limited to, at Superior Food Group’ absolute discretion, either the replacement of the goods or the cost of obtaining equivalent goods.

Retention of Title

6. The Customer agrees that all goods supplied by Superior Food Group to the Customer shall remain the property of Superior Food Group and property in all goods supplied shall not pass to the Customer until such time as Superior Food Group has:

• been paid in full for all goods supplied;
• received payment of all other sums that are owing by the Customer to Superior Food Group; and
• the moneys owing referred to in (a) and (b) above have been collected and cleared by Superior Food Group.

7. Where Superior Food Group has not been paid in full for any goods supplied to the Customer and/or in full for any other amounts which are due for payment by the Customer to Superior Food Group, then:

• the Customer shall hold any such goods which it has been supplied by Superior Food Group upon trust and as a fiduciary for Superior Food Group and shall store and identify all such goods in a manner that clearly shows Superior Food Group’ ownership thereof;
• the Customer must not sell any goods supplied without the prior written consent of Superior Food Group or except in the ordinary course of the Customer’s business;
• the Customer shall have no right or claim to any right or interest in the goods to secure any liquidated or unliquidated debt or obligation that Superior Food Group owes or may owe to the Customer;
• the Customer may not claim any lien over the goods;
• the Customer agrees that it shall not create any absolute or defeasible interest in the goods or grant or allow any security interest in the goods or their proceeds in relation to any third party except as may be authorised by Superior Food Group; and
• without prejudice to Superior Food Group’ rights as an unpaid Seller or any of its other rights or remedies to retake possession of Superior Food Group goods from the Customer, the Customer hereby agrees to deliver up goods to Superior Food Group upon demand by Superior Food Group and otherwise agrees that Superior Food Group may recover possession of the goods at any site owned, possessed or controlled by the Customer and the Customer agrees that Superior Food Group has an irrevocable licence to do so.

8. Where:

• title has not passed to the Customer in goods supplied by Superior Food Group to the Customer; and
• those Goods are sold to a third party by the Customer,

then the proceeds of such a sale by the Customer, to the extent that they are deemed to equal in dollar terms the amount owing by the Customer to Superior Food Group on any account at the time of receipt of such proceeds, shall be held upon trust by the Customer for Superior Food Group in a separate account until such time as full payment is made of all amounts owing by the Customer to Superior Food Group.

9. The Customer agrees to indemnify and hold Superior Food Group harmless against all loss and damage incurred or sustained by Superior Food Group as a result of or in relation to the exercise of Superior Food Group’ retention of title rights.
10. Clauses 26 to 29 above shall apply in respect of any goods supplied by Superior Food Group to an inter-related account of a Customer where the inter-related account is in default (see clause 9).

Force Majeure

1. If for any reason beyond the control of Superior Food Group including without limitation as a result of any strike, trade dispute, fire, tempest, theft or breakdown, orders cannot be filled at the time stipulated by the Customer, Superior Food Group shall (at its sole discretion and without prejudice to the rights of Superior Food Group to recover any sums owing to it in respect of deliveries made or provided prior to the date of such determination) be entitled to either:
2. cancel any order for goods placed by the Customer with Superior Food Group; or
3. determine any contract between Superior Food Group and the Customer that may have arisen by reason of the operation of these terms; or

• determine any trading account.

The Customer shall have no claims for damages arising out of any such cancellation and/or determination whether or not the Customer receives notice of any such cancellation and/or determination.

Change of Ownership

2. The Customer shall give written notice to Superior Food Group within seven (7) days of any change of ownership or control of the Customer. The Customer hereby agrees to indemnify and keep indemnified Superior Food Group against any loss, damage, cost or expense incurred by Superior Food Group as a result of the Customer’s failure to notify Superior Food Group of any such change of ownership and/or control. Superior Food Group reserves the right to vary any Customer order or terms of credit or hold or discount entitlements upon any change of ownership or control of the Customer.

Lien

3. The Customer hereby irrevocably grants Superior Food Group a general and specific lien and pledge over any and all goods belonging to the Customer which are in Superior Food Group’ possession from time to time to secure payment of any amounts due and payable under these terms.

General

4. . A Certificate signed by an authorised representative of Superior Food Group and am authorised representative of the Customer will be prima facie evidence of the Customer’s liability to Superior Food Group as at the date of the Certificate.

Variation of Terms

5. Superior Food Group reserves the right to vary all or any of these terms upon 7 days days notice to the Customer. Clerical errors are subject to correction without notification. The Customer will be deemed to accept the variation if no dispute is raised within 7 days of the date of the notice.

Notices

6. You hereby agree:

• Any notice by one party to the other shall be sufficiently served if served personally or by facsimile transmission or if posted by prepaid post to the party to be served at the registered office of such party or its last known place of business and shall be deemed to have been received within two (2) days of the date of posting if served by post and immediately upon transmission if served by facsimile transmission, and
• That in addition to any other means permitted by law, any documents, notifications or court proceedings may be given or served upon you, your successors and permitted assignees in the same manner as any notice or document may be given under Part 8.5 of the Personal Property Securities Act (2009) (“PPSA”) and shall be deemed so given or served

Waiver

7. No waiver of these terms shall be valid and operate unless such waiver is in writing and signed by the authorised representative of Superior Food Group.

GST

8. Unless otherwise agreed by Superior Food Group and the Customer, all amounts payable in relation to goods supplied to the Customer under this Agreement are expressed to be exclusive of GST. If GST is payable on a taxable supply as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) then the amount payable by the Customer for that taxable supply will be the amount expressed plus GST.

Severance

9. If any provision of this Agreement is found to be invalid or unenforceable then it is deemed to be severed and the remainder of this Agreement shall remain valid and in force.

Entire Agreement and No Merger

1. Unless otherwise agreed in writing, Superior Food Group and the Customer acknowledge that these terms and conditions constitute the entire agreement between them and that the only enforceable obligations and liabilities of Superior Food Group and the Customer in relation to its subject matter. All representations, communications and prior agreements are superseded by these terms and conditions. Where previous terms and conditions have been entered into between the Customer and Superior Food Group, the parties agree that this Agreement shall not act as a merger of their rights but that the terms contained under such previous Agreement shall be amended by the terms contained herein to the extent of any inconsistency.

Jurisdiction

1. These trading terms shall be governed by the laws in force in the State of Victoria and the parties agree that all claims and disputes shall be determined in the Court of competent jurisdiction nearest Courts in Melbourne. 

PPSA, PMSI and APAAP

2. . The Customer hereby grants a charge to Superior Food Group overall and any of your present and after acquired property (“APAAP”) and any interest in real property (current or future) as security for your indebtedness and obligations under this Agreement. The Customer agrees that the covenant to repay contained in this Agreement is a charge over any such interest in real property of the Customer and consents to a caveat being lodged against the title to any such real property or any interest in such real property owned by the Customer from time to time, including that where the Customer/s is/ are or becomes a trustee of a trust (whether or not such trust is disclosed herein), the Customer in such capacity hereby charges all such real and personal property of such trust (including all present and after acquired property) with the obligations contained herein and declare that such charge is given in consideration of the terms herein, of Superior Food Group agreeing to sell or continue to sell to the Customer and at the request of and for the benefit of such trust . The Customer (in their own capacity and/ or as trustee as previously described) hereby and by way of security irrevocably appoints every officer and legal practitioner of Superior Food Group jointly and each of them severally as the Customer’s lawful attorney (“attorney”) with the power and for the purpose of executing

(including as a deed) a mortgage or other instrument of security in any form determined in the absolute discretion of the attorney over any interest in real property of the Customer (in their own capacity and/ or as trustee as previously described) to secure the monies and obligations herein, if the Customer fails within a reasonable time of demand being made upon the Customer to execute such mortgage or other instrument, and to procure the registration of such mortgage or other security.

3. For the purposes of section 20(1) and (2) of the PPSA, and to ensure maximum benefit and protection for Superior Food Group under the PPSA, you confirm and agree that you intend to and do grant to Superior Food Group, as security for your indebtedness and obligations, a charge over all of your present and after-acquired property.
4. You agree to do anything that Superior Food Group reasonably requires to ensure that Superior Food Group has at all times a continuously perfected security interest over all of your present and after-acquired property and agree and acknowledge that Superior Food Group may register its security interest on the register established pursuant to the PPSA.
5. . Superior Food Group may allocate amounts received from you in any manner it determines, but in default will apply same first to payment of any unsecured amount owing to Superior Food Group, next as to any reasonable enforcement expenses and then as to any secured balance owing to Superior Food Group.
6. You agree to reimburse Superior Food Group for all reasonable costs and/or expenses incurred or payable by Superior Food Group in relation to registering, maintaining or releasing any financing statement or financing change statement under this Agreement or complying with any requirement under the PPSA (including but not limited to complying with any request for information from third parties if required).
7. You will not (except with the written consent of Superior Food Group) allow to be, or be liable to become, perfected or attached in favour of any person, a security interest or transitional security interest in any of the monies from time to payable to Superior Food Group (if any) or otherwise, and whether to a provider of new value or otherwise).
8. You will not (as against any person who is a “related entity “ of you for the purposes of the Corporations Act 2001) without the prior written consent of Superior Food Group, before or until all money payable to Superior Food Group in connection with the Agreement is paid in full:

• exercise a right of contribution or indemnity;
• claim the benefit of (for example, by subrogation), or seek priority ahead of, the transfer of or the benefit of a security Superior Food Group holds in connection with this Agreement;
• try to reduce its liability to Superior Food Group through set off or counterclaim; or
• prove in competition with Superior Food Group if you are unable to pay your debts when due.
• seek to perfect or attach in favour of you or another (either jointly or severally) a security interest in any of your present or after acquired property which would rank in priority to the entitlements of Superior Food Group.

9. You waive the right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the security interests under this Agreement.
10. You agree that you and Superior Food Group contract out of and nothing in the provisions of Sections 95, 96, 117, 118, 121(4), 130, 132(3)(d), 132(4), 142 and 143 of the PPSA shall apply to this Agreement.
11. You and Superior Food Group acknowledge that you are the grantor and Superior Food Group is the holder of a Purchase Money Security Interest (“PMSI”) by virtue of this Agreement and/ or the PPSA.
12. You and Superior Food Group agree that the terms of this Agreement may be altered unilaterally by Superior Food Group
13. You hereby consent and appoint Superior Food Group to be an interested person and your authorized representative for the purposes of section 275(9) PPSA.

General

4. Superior Food Group may assign or transfer this Agreement and/ or any security under the PPSA to a related body corporate at any time by written notice to you. You must not assign or transfer the benefit or obligations of this Agreement without the prior written consent of Superior Food Group, which Superior Food Group will not unreasonably withhold.

 Confidentiality

5. You acknowledge that all pricing information and any other commercially sensitive or confidential information relating to this Agreement is strictly confidential (Confidential Information).
6. Except as stated in this Agreement or where required by PPSA, the parties to this Agreement are under an obligation to not and must not permit any of their officers, employees, agents, contractors or related bodies corporate to disclose any Confidential Information to any person, without the prior written consent of the party to whom the Confidential Information relates, other than:

(a) to their professional advisers;

(b) in the case of Superior Food Group, in assigning or enforcing or seeking to assign or enforce this Agreement, in a proceeding arising out of or in connection with this Agreement, to a ratings agency or to the extent that disclosure is regarded by Superior Food Group as necessary to protect its interest; or

(c) as required by law, a binding order of any government agency or any procedure for discovery in any proceedings..

7. The parties acknowledge and agree, for the purpose of section 275(6)(a) of the PPSA, that neither party may disclose any information or documents supplied by another party, including information of the kind referred to in section 275(1) of the PPSA, except in the circumstances in which disclosure is permitted pursuant to clause 56

8. This clause, and clause 55, 56 and 57:

(a) operates for the benefit of all parties; and

(b) continues despite the termination of this Agreement.