Nice N Fresh – TERMS AND CONDITIONS

The following terms and conditions of trade apply to and form part of any contract for the supply of poultry, meat and further processed products (Goods) by Top Choice Foods Pty Ltd (ABN 32 682 759 995) (Nice N Fresh) to a customer (Customer), being as named on the invoice or in an approved credit application, as applicable, whether or not the Customer is an approved credit customer or a cash on delivery customer. Any provisions set out in the Customer’s order deviating from or inconsistent with these terms shall not bind Nice N Fresh despite any statement by the Customer in its order that its terms and conditions shall prevail. A contract shall only be or deemed to have been entered into between Nice N Fresh and the Customer when the Customer’s order has been accepted by Nice N Fresh.

Sale: Nice N Fresh hereby agrees to sell to the Customer, and the Customer hereby agrees to purchase from Nice N Fresh, Goods from time to time, in accordance with these terms and conditions.

Prices: The prices of the Goods will vary from time to time and the Customer agrees that the price for the Goods shall be Nice N Fresh’s prevailing price on the day of dispatch. Nice N Fresh reserves the right to vary prices quoted in relation to future orders. Customers can contact Nice N Fresh on the day of dispatch to ascertain the price.

Delivery: Nice N Fresh is deemed to have delivered the Goods when they are made available for unloading at the Customer’s nominated delivery point. Nice N Fresh shall make a reasonable effort to deliver the Goods within a reasonable time from the order date but shall not be liable for any delay or inability to deliver. The Customer shall notify Nice N Fresh of any claim that the Goods are not in suitable condition, or are not in accordance with the Customer’s order, within 24 hours after delivery (noting the limited shelf life of the Goods of 4 calendar days).

Payment: Except as otherwise agreed by Nice N Fresh, by way of approved credit application, terms of payment are cash on delivery, either by cash or cheque. Payment by EFT is acceptable if clear funds are received by Nice N Fresh at least 24 hours prior to delivery. Payment is to be made to Nice N Fresh in accordance with the agreed payment terms stipulated on the front of any invoice for all deliveries by Nice N Fresh whether or not the Customer has signed the accompanying invoice.

Credit terms: The Customer is not entitled to credit facilities unless approved by Nice N Fresh at its discretion. Nice N Fresh reserves the right to terminate the credit facilities from time to time or at any time. Nice N Fresh reserves the right to require the Customer to provide security as a condition of credit facilities.

Default of payment: If any money payable to Nice N Fresh becomes overdue, Nice N Fresh shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Nice N Fresh shall, whether or not due for payment, become immediately payable. Interest on overdue amounts shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month. The Customer agrees to pay any expenses, costs or disbursements incurred by Nice N Fresh incurred in exercising Nice N Fresh’s rights under these terms and conditions including bank charges, internal administration fees, debt collection agency fees and commission and legal costs (on a solicitor and own client basis).

Title: Legal and equitable title in the Goods remains with Nice N Fresh until payment is made in full by the Customer and it has met all of its other obligations to Nice N Fresh. Until that time the Customer shall be bailee only and must return the Goods to Nice N Fresh on request. The Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for Nice N Fresh and must pay or deliver the proceeds to Nice N Fresh on demand. The Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Nice N Fresh and must sell, dispose of or return the resulting product to Nice N Fresh as it so directs. Nice N Fresh may commence proceedings to recover a debt in the amount of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

Risk: Risk of damage to or loss of the Goods passes to the Customer on delivery. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Nice N Fresh is entitled to receive full payment for the Goods. If the Customer requests that Nice N Fresh deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk.

Security: In consideration of Nice N Fresh agreeing to supply the Goods, the Customer grants Nice N Fresh a security interest (registerable by Nice N Fresh pursuant to the Personal Property Securities Act 2009 (PPSA)) over all of its present and after acquired rights, title and interest (whether joint or several) in all other assets that are owned by the Customer or owned by the Customer in the future, to the extent necessary to secure the repayment of monies owed for provision of the Goods by Nice N Fresh. Upon agreeing to these terms and conditions, the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by Nice N Fresh to the Customer, and the proceeds from such Goods. The Customer undertakes to unconditionally ratify any actions taken by Nice N Fresh under this clause, the PPSA or in relation to the PPSA. Subject to any express provisions to the contrary, nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA. In this clause, security agreement and security interest has the meaning given to it by the PPSA.

Indemnities: The Customer indemnifies Nice N Fresh from and against any losses, damages, costs (including legal costs (on a solicitor and own client basis)), expenses, demands, claims, actions and proceedings which may be incurred by or made against Nice N Fresh should the Customer breach any of these terms, cancel any order or part of an order for Goods, in connection with any loss, death or injury caused by or in any way attributable to the Goods or in relation to the exercise by Nice N Fresh of its right under the ‘Security’ clause above.

Limitations of Liability: To the maximum extent permitted by law and subject to these terms and conditions, Nice N Fresh’s total liability arising out of or in connection with the supply of the Goods (including pursuant to or for breach of these terms and conditions or repudiation thereof, under statute, in equity or for tort, including negligent acts or omissions) is limited as follows (1) Nice N Fresh shall have no liability to the Customer for any Consequential Loss and (2) Nice N Fresh’s total aggregate liability for any Loss, however arising, shall not exceed the GST exclusive aggregate price paid by the Customer to Nice N Fresh for the specific Goods that gave rise to the Loss in question.

The limitations and exclusions in this clause do not apply to the extent that any Loss is directly attributable to the personal injury or death caused by Nice N Fresh’s negligence, or fraud by Nice N Fresh. In no circumstances shall Nice N Fresh be liable to the Customer or any third party for dealing with or disposing of the Goods on or after delivery, the addition of other things to the delivered Goods, improper or unsuitable handling or use of the Goods, plant, vehicles, personnel or equipment used or operated by the Customer or any third party, incorrect ordering of Goods by the Customer or third party or anything outside Nice N Fresh’s reasonable control. In this clause ‘Loss’ meansany expense, cost or damage of any kind and includes Consequential Loss and a fine or penalty imposed by a statutory or other authority and ‘Consequential Loss’ means loss of expected savings, loss of use, loss of opportunity, loss of profit, loss of revenue, increased financing costs, loss arising from delay, or any consequential, special or indirect loss or damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a claim under indemnity, contract, tort (including negligence), statute or otherwise.

GoverningLaw:The laws of the state of Victoria govern these terms. The parties submit to the non-exclusive jurisdiction of the courts of Victoria.