TERMS & CONDITIONS OF TRADE (11/2007)

To the fullest extent legally possible, all dealings between Moondarra Cheese Pty Ltd ACN 087 762 927 (& each of its subsidiaries, divisions, affiliates, associated & related entities & its successors & assigns)(“Moondarra”) & any Customer (" Customer") relating to any goods or services are subject to the following Terms & Conditions of Trade (“these Terms”) unless otherwise agreed in writing.

• 1. Payments:
  • a) Payments to be made within 30 days from end of month of invoice date without deduction or set-off of any kind
  • b) Moondarra may apply a payment received from the Customer to any amounts owed by the Customer (including interest, part payment of an invoice, administration, collection & other costs) in any order
  • c) Moondarra is entitled to set-off or deduct any amount payable by Moondarra to the Customer.
• 2. Interest is payable on overdue accounts at the rate prescribed under the Penalty Interest Rates Act 1983 (Vic) plus an additional 3% & a monthly admin fee of $25 will apply.
• 3. Property:
  • a) Property in goods shall not pass until payment in full of all monies owed to Moondarra on any basis ("Full Payment")
  • b) Moondarra reserves the right to take possession & dispose of goods as it sees fit at any time until Full Payment & the Customer grants permission to Moondarra to enter any property where any goods are, in order to do so & with such force as necessary
  • c) Immediately upon delivery the Customer accepts liability for the goods
  • d) A certificate signed by an officer of Moondarra identifying goods & certifying that monies are owing to Moondarra shall be conclusive evidence of Moondarra’s title thereto
  • e) Upon sale or disposition of goods prior to Full Payment the Customer agrees to hold all proceeds Upon Trust for Moondarra in a separate bank account, agrees not to mix proceeds with any other monies & will immediately account to Moondarra therefore even if Moondarra may have granted any credit facility &/or time to pay
  • f) Until Full Payment the Customer agrees
    • (i) to keep all goods as fiduciary for Moondarra & store them in a manner which shows Moondarra as owner
    • (ii) only to sell goods in the usual course of business
    • (iii) sale on terms, at cost or less than cost shall not be “in the usual course”
  • g) Clause 3 is not intended to create a charge & shall be read down to the extent necessary to avoid being a charge
  • h) if the Customer uses or incorporates any goods in any production, process or manufacture or combines them with anything to create a finished or combined new thing for disposition then upon such disposition prior to Full Payment, the Customer agrees to hold such part of the proceeds thereof (& until payment is received by the Customer, that part of any applicable book debt ) as equals the costs of the goods used &/or incorporated therein (at the prices invoiced by Moondarra to the Customer) Upon Trust for Moondarra until Full Payment.
• 4. Limitation Of Liability:
  • a) The Customer will limit any claim upon Moondarra relating to goods, to the cost of replacement of goods or the supply of equivalent goods & relating to services, to the cost of having services supplied again
  • b) Moondarra shall 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 shall be deemed to be unqualified acceptance
  • c) Moondarra will not be liable in any way for any contingent consequential direct indirect special or punitive damage arising whether due to Moondarra'negligence or otherwise & the Customer acknowledges this limit of liability & agrees to limit any claim accordingly
  • d) 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 Moondarra is made or given
  • e) Moondarra will not be liable for any claim relating to or arising from any alleged fault or defect, whether caused or contributed to by Moondarra, the Customer or any 3rd party or otherwise.
• 5. Returns:
  • a) Moondarra reserves the right to refuse to accept returns
  • b) If Moondarra elects to take back product it must be in as new & saleable condition & upon terms agreed & a re-stocking fee of not less than 15% of invoice value will apply
  • c) Custom made or custom processed goods or goods acquired by Moondarra specifically for the Customer will not be returnable
  • d) Any goods which are accepted by Moondarra as defective may be returned & 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.
• 6. Specific Orders. Customer specific orders may be rejected by Moondarra at its election, unless accompanied by a non-refundable deposit of at least 50% of the total order price.
• 7. Placement Of Orders:
  • a) if any dispute arises concerning any order (& including any measurement quality quantity identity or authority or any telephone facsimile e-mail or computer generated order) the internal records of Moondarra will be conclusive evidence of what was ordered
  • b) each order placed shall be & be deemed to be a representation made by the Customer at the time that it is solvent & able to pay all of its debts as & when they fall due
  • c) failure to pay in accordance with these Terms shall be & be deemed to be conclusive evidence that the Customer had no reasonable grounds for making the representation referred to in 7.b) & that the representations were unconscionable, misleading & deceptive
  • d) when any order is placed, the Customer shall inform Moondarra of any material facts which would or might reasonably affect the commercial decision by Moondarra to accept the order &/or grant credit in relation thereto. Any failure to do so shall create & be deemed to create an inequality of bargaining position shall constitute & be deemed to constitute the taking of an unfair advantage of Moondarra & to be unconscionable, misleading & deceptive.
• 8. Delivery:
  • a) Moondarra accepts no responsibility for delivery but may elect to arrange delivery at its discretion & without any liability & at the Customer's costs & responsibility in all things
  • b) Moondarra reserves the right to charge for any delivery
  • c) the Customer shall be deemed to have accepted delivery & liability for the goods immediately Moondarra 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
  • d) a certificate purporting to be signed by an officer of Moondarra confirming delivery shall be conclusive evidence of delivery as shall any signed delivery docket
  • e) Moondarra will not be liable for delay, failure or inability to deliver any goods
  • f) once the Customer has been notified that goods are ready for collection, the Customer agrees to pay all costs of holding or handling goods
  • g) Frustrated Delivery: If time spent delivering exceeds 30 minutes or requires more than one attempt, the Customer agrees to pay all costs relating thereto plus a loading of 10% to cover administration costs.
• 9. Variation or cancellation of any order dealing or arrangement must be agreed in writing
• 10. Exclusions:
  • a) No dealing with the Customer shall be or be deemed to be a sale by sample or description
  • b) If Moondarra publishes material about its goods & prices, any part which is incompatible with these Terms is expressly excluded
  • c) the Customer will rely on its own knowledge & expertise in choosing any product for any purpose
  • d) Any advice or assistance given for or on behalf of Moondarra shall be accepted at the Customer’s risk & shall not be or be deemed given as expert or adviser nor to have been relied upon.
• 11. On-Sale: The Customer agrees that upon on-sale of any goods to inform any third party involved of these Terms & in particular the provisions of clause 3 & especially clause 3 (h).
• 12. Specifications:
  • a) Any illustration drawing or specification supplied by Moondarra (“Specs”) are drafts & approximates
  • b) Any tangible or intellectual property rights in Specs shall remain the property of Moondarra & may be recalled at any time
  • c) Specs are to be treated at all times as confidential & not made use of without the prior written consent of Moondarra.
• 13. Purchase Price:
  • a) All sales are made by Moondarra at its ruling price at the time of delivery
  • b) government imposts & any GST (“imposts”) will be to the Customer’s account
  • c) Moondarra’s price lists exclude imposts unless expressly noted thereon.
• 14. Default or breach by the Customer of these Terms or in any dealings with Moondarra will entitle Moondarra to retain all monies paid, call-up all monies due or owing (whether currently due & owing or not), cease further deliveries & recover from the Customer all loss of profits without prejudice to any other of its rights under these Terms or at law.
• 15. Small Orders: The Customer agrees to pay a handling & administration charge of $15.00 for any order of less than A$200.00 in value (excluding GST).
• 16. Products & Services
  • a) Moondarra disclaims any responsibility or liability whatsoever relating to suitability for any particular purpose or process
  • b) the Customer agrees to check all goods prior to use alteration or any application thereof whether in relation to suitability for any particular purpose or process or otherwise
  • c) the Customer agrees to check & test all goods for compliance with all relevant applicable standards & regulatory bodies before use, on-sale or application & to use or apply same in accordance with all applicable standards, regulations & guidelines, with all manufacturers &/or Moondarra recommendations & directions as well as with good commercial practice
  • d) Moondarra may update modify make substitution or alter any of its goods or any component or raw material 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 for any goods ordered provided they are not materially different
  • e) Moondarra disclaims any responsibility or liability relating to any goods
    • i) 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
    • ii) utilised stored handled or used incorrectly or inappropriately
  • f) Moondarra may change the specifications or ingredients of any goods from time to time & Moondarra are not required to notify the Customer of such a change.
• 17. Other Terms & Conditions & Notice:
  • a) No terms &/or conditions sought to be imposed by the Customer upon Moondarra shall apply unless agreed in writing by Moondarra
  • b)The Customer will be deemed to have notice of any change to these Terms, immediately Moondarra adopts them.
• 18. Recovery Costs: The Customer will pay all costs & expenses of Moondarra, its legal advisers, mercantile agents & 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 Moondarra.
• 19. Attornment: To give effect to its obligations arising under in these Terms the Customer hereby irrevocably appoints any solicitor for Moondarra from time to time, as its attorney.
• 20. Customer Restructure: The Customer will notify Moondarra of any change in its structure or management including any change in director shareholder management partnership or trusteeship or sale of any material part of its business within 7 days of any such change.
• 21. Jurisdiction: All contracts made with Moondarra shall be deemed to be made in Victoria & the parties submit to the jurisdiction of the appropriate Courts in or nearest Melbourne.
• 22. Credit Limit: Moondarra can vary or withdraw any credit facility or limit at any time at its discretion & without any liability to the Customer or any other party.
• 23. Waiver: If Moondarra elects not to exercise any rights arising as a result of breach of these Terms it shall not constitute a waiver of any rights relating to any subsequent or other breach.
• 24. Security For Payment: The Customer
  • a) agrees on written request to charge in favour of Moondarra
    • (i) by way of a fixed charge, all its books of account goodwill documents of title & current & later acquired real & intellectual property &
    • (ii) by way of a floating charge the whole of the Customer’s other undertaking property & assets with Full Payment
  • b) grants a lien to Moondarra over any of its property in the possession or control of Moondarra until Full Payment.
• 25. Force Majeure: Moondarra will not be in default or breach of any dealing with the Customer as a result of Force Majeure (ie: anything beyond Moondarra’s reasonable control).
• 26. Intellectual Property:
  • a) If Moondarra utilises any design patent or intellectual property or follows any instruction provided by or on behalf of the Customer the Customer indemnifies Moondarra 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
  • b) The Customer may not advertise, use or represent any intellectual property of Moondarra (including but not limited to recipes) or of any goods themselves in any way without the prior written consent of Moondarra
  • c) If the Customer breaches or permits any breach of this clause, it acknowledges Moondarra may suffer claims by third parties as a result (eg: by models who's images are reproduced without authority &/or by parties who are entitled to exploit any intellectual property) & clause 33 will apply.
  • d) all rights in recipes remain with Moondarra unless other agreed in writing by Moondarra.
• 27. Discounts:
  • a) Any discount offered by Moondarra is at its complete discretion & 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 Moondarra
  • b) unless otherwise agreed in writing, early payment discounts (if any) will be noted on the face of the relevant invoice & are subject to these Terms.
• 28. Severability: Any part of these Terms can be severed without affecting any other part.
• 29. No Set-off or Counter Claim will be made or applied by the Customer until payment in full of all bone fide invoices raised by Moondarra (whether current or overdue) & this clause may be pleaded as a bar to any action taken prior to such payment in full.
• 30. Stock Discretion: Moondarra has a continuing discretion to allocate available stock & gives no warranty as to certainty of supply unless expressly agreed in writing in advance.
• 31. Partial Delivery/Forward Orders: If the Customer places forward orders or request partial or instalment delivery, the Customer agrees
  • a) to pay for so much of any order as is from time to time delivered by Moondarra
  • b) that no delay or failure to fulfil any part of any order shall entitle the Customer to cancel or vary any order or delay or reduce any payment.
• 32. Acceptable Variation: The Customer will accept variation in quantities at plus or minus 5% & will pay pro-rata for the actual quantity delivered.
• 33. Indemnity: The Customer indemnifies Moondarra against any claim or loss arising from or related in any way to any contract or dealing between Moondarra & the Customer or anything arising therefrom or arising as a result of or subsequent to any breach of these Terms
• 34. Insolvency:
  • a) If the Customer commits or is involved in any act of insolvency, it will be deemed in default under these terms
  • b) An act of insolvency includes bankruptcy, liquidation, receivership, administration or the like & failure to pay in accordance with these Terms.
• 35. Exports of any goods are governed by these Terms & all international trade conventions &/or terms including but not limited to the United Nations Convention on Contracts for the International Sale of Goods (known as the Vienna Sales Convention 1980) are expressly excluded unless otherwise stipulated in these Terms or on Moondarra's invoice for the goods.
• 36. Recalls: In the event of a product recall ("Recall"), the Customer must give Moondarra such assistance as Moondarra reasonably requires in relation to that Recall.
• 37. Product Characteristics:
  • a) Cheese & dairy products are natural products which may require refrigeration, proper handling & storage & have a limited shelf-life
  • b) The Customer must inspect all cheese & dairy products immediately upon delivery to make sure it is of merchantable quality & fit for the intended purpose & delivered (inter alia) at an appropriate humidity/temperature/moisture content etc. & in accordance with all applicable laws etc. & good practice
  • c) The Customer must immediately notify Moondarra in writing if any such product fails to comply with the forgoing & will make no claim upon Moondarra unless it is able to demonstrate that the product failed to comply with the foregoing at the time of delivery
  • d) The Customer should make itself aware of all applicable standards & good business practices for transportation & storage of the goods (including but not limited to correct temperature).
• 38. Marketing Support:
  • a) If Moondarra provides the Customer with a payment, discount, rebate or like payment as marketing support ("Marketing Support Payment") the Customer must only use the Marketing Support Payment for advertising & promotion of the goods ("Acceptable Use")
  • b) The Customer must refund the Marketing Support Payment to Moondarra within 7 days of Moondarra'demand if the Customer fails to use it for an Acceptable Use
  • c) The Customer must provide Moondarra with evidence to Moondarra's use of the Marketing Support Payment within 14 days reasonable satisfaction of the Customer'days of a demand by Moondarra.