1. Parties
1.1 Australian Health & Nutrition Association Limited ABN 63 096 452 972 trading as Sanitarium Health Food Company of 1 Sanitarium Drive Berkeley Vale NSW 2261 (‘Sanitarium’); and
1.2 Supplier has the meaning given in the Order (‘Supplier’),
(each a ‘party’, and collectively the ‘parties’).
2. Recitals
2.1 Sanitarium requires the Supplier to supply Sanitarium with the Goods and/or Services.
2.2 The Contract sets out the terms on which the parties agree the Supplier will supply the Goods and/or Services to Sanitarium.
3. Important Terms
3.1 These Conditions contain certain clauses that are important for the Supplier to be aware of. The Supplier should read them carefully. In particular:
(a) clauses 6, which allows Sanitarium to carry out audits in certain circumstances;
(b) clause 8.2, which may require the Supplier to pay liquidated damages in certain circumstances;
(c) clause 9.1(d), which outlines specific Site access requirements, including mandatory shutdown from one hour before sunset Friday to one hour after sunset the following Saturday; and
(d) clause 11, which sets out the indemnity and liability framework, including each party’s responsibilities and the circumstances in which limitations of liability apply.
4. Interpretation
4.1 In these Conditions:
(a) clause and other headings are for ease of reference only and do not affect the interpretation or meaning of these Conditions;
(b) words in the singular include the plural and vice-versa;
(c) a reference to:
(i) Party to the Contract includes that Party’s permitted assigns;
(ii) Personnel includes officers, employees, contractors and agents, but a reference to Sanitarium’s Personnel does not include the Supplier;
(iii) a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
(d) “including” and similar words do not imply any limit; and
(e) a reference to a specific time of performance of an obligation is a reference to AEST or AEDT (as applicable); and
(f) a reference to a clause, paragraph, schedule, annexure or the like is a reference to a clause, paragraph, schedule, annexure or the like to these Conditions (as novated, altered or replaced from time to time).
5. Dictionary
5.1 Meanings apply to capitalised terms used in these Conditions as specified in this provision, and as defined elsewhere in these Conditions, unless the context otherwise requires:
Anti-Corruption Laws means any law prohibiting or relating to bribery, corruption, kickbacks, secret commissions or money laundering, including the Criminal Code Act 1995 (Cth), the Anti-Money Laundering and Counter-Terrorism Fundraising Act 2006 (Cth), the Crimes Act 1961 (NZ), the Secret Commissions Act 1910 (NZ), the Anti-Money Laundering and Counter Financing of Terrorism Act 2009 (NZ), the Foreign Corrupt Practices Act 1977 (US), the Bribery Act 2010 (UK), and any anti-corruption regulations and provisions applicable in the European Union or in any of the locations in which Sanitarium carries on business.
Business Day means a day that is not a Saturday, Sunday or public holiday in New South Wales, Australia.
Change of Control means, with respect to a party, any transaction or occurrence (or series of transactions or occurrences during any one (1) year period) that results in:
(a) a new person or group of persons beneficially holding in the aggregate, whether directly or indirectly, more than fifty percent (50%) of the Voting Power (as defined in section 610 of the Corporations Act 2001 (Cth)) in the party;
(b) a sale of all or substantially all of the assets, liabilities and business of the party to, or a consolidation, merger, or other business combination involving a transfer of all or substantially all of the assets, liabilities and business of the party with, or in combination with, any other new person; or
(c) a reverse merger in which the party is the surviving entity but in which more than fifty percent (50%) of the Voting Power in the party is acquired by a new person or group of persons,
but does not include such transactions or occurrences that occur within a corporate group of the party and does not materially affect the performance of the Contract.
Claims means any claim, demand, proceeding or other action or threatened action, whether actual or alleged.
Conditions means these Conditions of Purchase including any annexures, appendices or the like.
Confidential Information means any information disclosed or revealed by a party to the other party under or in connection with this Contract that:
(a) by its nature is confidential (whether or not it is marked being ‘confidential’); or
(b) the Recipient knows or reasonably ought to know is confidential,
and specifically includes any business records, financial or taxation information, information relating to customers or suppliers, present and future business and marketing plans, particulars of Personnel, product formulations and manufacturing processes, the terms of this Contract, and any other information whether in writing or otherwise in connection with Sanitarium, its operations, the Site, or the Goods and Services, but does not include information that:
(c) is published or has otherwise entered the public domain other than through a breach of this Contract;
(d) is obtained from a third party who has no obligation of confidentiality to the Discloser;
(e) was or is independently developed or obtained without a breach of this Contract; or
(f) was known or available to the Recipient before disclosure was made by the Discloser to the Recipient.
Consequential Loss means indirect, special, economic or consequential damages or loss, including but not limited to loss of revenue or profit of any nature whatsoever, loss of expected savings, loss of chance or business opportunity, business interruption, loss or reduction of goodwill, damage to reputation, loss of property, loss of enjoyment or use, cost of removal, cost of installation; other consequential damages of any nature, whether or not such loss or damage was foreseeable, or in the contemplation of the parties at the time of entering into this Contract.
Contract means the contract between Sanitarium and the Supplier for the supply of Goods and/or Services described in the Order, on the terms specified in the Order, the Specifications, these Conditions, the Supply Standards – Goods, and any other document incorporated into the Order by reference (including these Conditions and any annexures, appendices and the like), and any other document intended to form part of the contract and be legally binding on the parties as explicitly agreed by the parties in writing (for example, a Deed of Variation).
Corporations Act means the Corporations Act 2001 (Cth).
Defects Liability Period means, in respect of each of the Goods and/or Services, unless otherwise stated in an Order or an agreed specification, 12 months commencing on the last day that the Supplier delivers the relevant Goods and/or Services to Sanitarium.
Discloser means a person who discloses Confidential Information to a Recipient.
Dispute means any dispute, difference or issue between the parties concerning or arising out of or in connection with or relating to this Contract, or the subject matter of this Contract, or the breach, validity, rectification, frustration, operation or interpretation of this Contract.
Force Majeure Event means any event or circumstance beyond the reasonable control of a party, which that party could not have prevented or overcome by the exercise of reasonable care, prudence and diligence, including (without limitation): acts of God, natural disasters, flood, fire, earthquake, storm or cyclone; epidemic or pandemic; war, terrorism, civil unrest or riot; war, invasion, national or regional industrial action not directed solely at the affected party; embargoes or blockades; sabotage, and any act or order of a government or regulatory authority.
Goods means any goods supplied or to be supplied by the Supplier to Sanitarium under the Contract including their packaging and any replacement goods.
GST means a goods and services tax, or a similar value added tax, levied or imposed including under A New Tax System (Goods and Services Tax) Act 1999 (Cth), Goods and Services Tax Act 1985 (NZ) or similar Law.
Insolvency Event means an event by which a party is:
(a) rendered insolvent;
(b) placed in or under receivership, receivership and management, liquidation or official management or administration;
(c) wound up or a resolution is made for its winding-up;
(d) made subject to any arrangement, assignment or composition (otherwise than as a result of voluntary corporate reconstruction); or
(e) subject to any other event that has similar effect to any of the events in the preceding paragraphs.
Intellectual Property Rights means all intellectual property rights including, without limitation, copyright, patents, trade marks (whether registered or not), brand names, trade names, moral rights and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and wherever existing in the world.
Law(s) means all applicable laws, as amended from time to time, including without limitation:
(a) legislation, statutes, regulations, determinations, by-laws, declarations, ministerial directions, ordinances, and other subordinate legislation;
(b) court decisions and principles of common law and equity, including any writs, orders, injunctions, and judgments; and
(c) mandatory codes, standards or guidelines having the full force of law.
Loss means:
(a) all damages, Claims, fees, losses, liabilities, costs, charges, outgoings, payments and expenses, including legal fees on an indemnity basis and disbursements and reasonable costs of investigation, litigation, settlement, judgment and interest; and
(b) to the fullest extent permitted by Law, fines and penalties.
Modern Slavery means any act that constitutes an offence in relation to slavery, forced labour, involuntary servitude, debt bondage, human trafficking or other slavery-like exploitation as prohibited or defined as a modern slavery offence under any Modern Slavery Law.
Modern Slavery Law means the Modern Slavery Act 2018 (Cth) and similar Laws in other jurisdictions.
Notice of Dispute means a notice in connection with a Dispute issued under clause 19.
Order means a duly executed Order for Standard Conditions of Purchase of Goods and/or Services or the like.
Personnel means all officers, employees, agents and contractors of the relevant party.
Policies and Procedures means all applicable Sanitarium policies and procedures which are:
(a) issued to the Supplier as part of the Order;
(b) notified to the Supplier; or
(c) published on Sanitarium’s website at www.sanitarium.com.au.
Recipient means a person who receives Confidential Information of the Discloser.
Site means any or all of the factories, infrastructure, assets, improvements, buildings and offices that Sanitarium may, currently or in the future, operate from.
Services means any services supplied or to be supplied by the Supplier to Sanitarium under the Contract or in connection with the Goods.
Specifications means Sanitarium’s requirements and criteria for the performance of Services or the Supply of Goods stated in, referred to, incorporated and/or annexed to an Order.
Supplier means the legal entity identified as the “Supplier” in the Order.
Supply Standards – Goods means to the extent the Contract relates to Goods, the “Supply Standards - Goods” annexed to these Conditions as Annexure A.
Trade Sanctions means all applicable international and domestic laws, regulations, embargoes and restrictive measures relating to trade, economic or financial sanctions, including (without limitation) those imposed, maintained, administered or enforced by the United Nations Security Council, the Australian Department of Foreign Affairs and Trade, the Australian Department of Home Affairs, the New Zealand Ministry of Foreign Affairs and Trade, or any other relevant governmental or regulatory authority in any jurisdiction in which Sanitarium operates or conducts business.
WHS Laws means all applicable work health and safety Laws, including the Work Health and Safety Act 2011 (NSW), Work Health and Safety Regulation 2017 (NSW), Health and Safety at Work Act 2015 (NZ); Health and Safety at Work (General Risk and Workplace Management) Regulations 2016 (NZ), Health and Safety at Work (Hazardous Substances) Regulations 2017 (NZ) and any other similar or replacement legislation in any relevant jurisdiction.
6. Contract
6.1 By supplying or agreeing to supply (including by accepting an Order) the Goods and/or Services, the Supplier acknowledges and agrees that Supplier has read, understood and agrees to be legally bound by these Conditions.
6.2 The Contract is formed on the earlier of:
(a) the Supplier providing written acceptance of the Order or written confirmation to supply the Goods and/or Services; or
(b) commencing supply of Goods and/or Services to Sanitarium.
6.3 The Contract between the parties includes, in order of precedence:
(a) any formally executed Deed of Variation or other document expressly agreed in writing and signed by both parties to amend or override this Contract;
(b) these Conditions;
(c) the relevant Order; and
(d) the Specifications; and
(e) the Supply Standards – Goods;
(f) the Supplier’s quote;
(g) any other document incorporated into the Contract by reference.
6.4 The Contract constitutes the entire agreement between the Parties for the supply of the Goods and/or Services and supersedes all prior understandings, agreements, negotiations and communications between the parties.
6.5 No other terms and conditions (including, without limitation, those of the Supplier) or any modifications to the Contract will bind Sanitarium unless an authorised employee of Sanitarium agrees to such other terms or modifications expressly and specifically signed in writing.
6.6 These Conditions shall bind each party’s executors, administrators and permitted assigns or, being a company, its successors and permitted assigns.
6.7 In the event of any inconsistency between the documents forming the Contract, these Conditions will prevail to the extent of the inconsistency. By way of example, if a Supplier quote, acknowledgment of order, invoice or other Supplier document states that the Supplier’s terms and conditions apply, or purports to override this Contract, those terms and conditions will not apply unless expressly agreed by Sanitarium in writing in accordance with clause 2.5, and these Conditions will prevail to the extent of any inconsistency. For the avoidance of doubt, any terms and conditions contained in or referred to in a Supplier’s quote, acknowledgment of order, invoice or other document do not apply unless expressly agreed by Sanitarium in writing in accordance with clause 2.5.
7. Warranties
7.1 The Supplier represents, warrants and covenants that:
General
(a) it will supply the Goods and/or Services in accordance with this Contract and timeframes in this Contract;
(b) it has and will maintain the necessary expertise, resources, equipment, licenses, qualified Personnel and insurance at its own cost;
(c) it will comply with all applicable Laws, Australian standards, industry standards, Sanitarium’s Policies and Procedures, and reasonable directions (including those of Sanitarium and its Personnel);
(d) it will take all reasonable precautions to prevent property damage, injury, or loss of life;
(e) it will take all reasonable precautions to ensure that its equipment and materials, and the manner in which they are used or applied, by Supplier or its Personnel do not cause property damage, injury, or loss of life;
(f) it will take all reasonable precautions to ensure the acts or omissions of the Supplier or its Personnel do not cause property damage, injury, or loss of life;
(g) it will provide all information reasonably required by Sanitarium to assess Supplier’s (including its Personnel’s) performance under the Contract;
(h) it will not engage in any act or omission that could damage, or is reasonably likely to damage Sanitarium’s brand, reputation, or goodwill;
(i) Goods and/or Services will be fit for purpose and of acceptable quality; and
(j) it will comply with all applicable Laws, Australian standards, industry standards, Sanitarium’s Policies, and reasonable directions of Sanitarium and its Personnel; and
Goods
(k) Goods will:
(i) comply with the Contract, including these Conditions (including the Supply Standards – Goods), the Order and the Specifications;
(ii) be delivered free of encumbrances, liens and Claims and not subject to any Personal Property Securities Register (pursuant to the Personal Property Securities Act 2009 (Cth), Personal Property Securities Act 1999 (NZ) or similar) security interest;
(iii) perform in line with agreed requirements and specifications set out in the Contract;
(iv) be free from defects (including in materials and workmanship) until the end of the respective Defects Liability Period;
(v) meet best industry practice;
(vi) match any description where provided on a description basis;
(vii) match (including in grade and quality) any sample approved by Sanitarium or provided by Supplier;
(viii) be safe for Sanitarium’s intended use and without risk to health when used for the purposes for which the Goods and materials were purchased by Sanitarium; and
Services
(l) Services will:
(i) comply with the Contract, including these Conditions (including the Supply Standards – Goods), the Order and Specifications;
(ii) be free from defects;
(iii) performed professionally in accordance with best industry practice;
(iv) be delivered by suitably qualified, experienced and licensed (as applicable) Personnel exercising reasonable skill and care;
(v) not infringe any Intellectual Property rights, and the Supplier has all necessary approvals for any Intellectual Property incorporated into the Services;
(vi) be compatible with Sanitarium’s systems unless otherwise explicitly disclosed to Sanitarium prior to entering the Contract; and
(vii) include proper maintenance of any equipment in optimal working order where the Services include equipment maintenance services;
7.2 Where any of the Goods supplied under the Contract are subject to a manufacturer’s warranty, the Supplier represents, warrants and covenants that it will provide complete details of the warranties to Sanitarium and provide all reasonable assistance to Sanitarium to ensure it has the benefit of the warranties and is able to enforce any such warranty directly against the manufacturer.
8. Delivery
8.1 Unless otherwise agreed and stated in writing in the Order, delivery of Goods and/or the provision of the Services will be performed at the location stated in the Order. The Supplier will be responsible for arranging and paying the costs of insurance and freight with respect to the Goods and the Goods must be packed in sufficiently strong and suitable packaging to ensure that the Goods are delivered undamaged. Delivery will be in strict accordance with the times stated in the Contract. Unless otherwise specified in the Order, the delivery schedule of Sanitarium requires delivery of Goods within thirty (30) days of receipt by the Supplier of the Order.
8.2 Unless otherwise agreed in writing by Sanitarium and stated in the Order:
(a) delivery of Goods and/or provision of Services must be to the address specified in the Order;
(b) the Supplier is responsible for arranging and paying all costs of freight, insurance, and any other charges related to delivery;
(c) Goods must be securely and appropriately packaged to prevent damage during transit; and
(d) delivery must strictly comply with the timeframes stated in the Order and if no delivery date is specified in the Order, Goods must be delivered within thirty (30) days of the Supplier receiving the Order.
9. Acceptance and Testing
9.1 Sanitarium or its nominee may inspect and test the Goods within a reasonable time after delivery. Delivery of the Goods will not be deemed to have been accepted by Sanitarium until the Goods have been inspected and certified by Sanitarium or its nominee.
9.2 If prior to the expiration of the Defects Liability Period, Sanitarium reasonably considers that any Goods or Services do not comply with the Contract or Law then, in addition to other rights and remedies which Sanitarium has at Law, Sanitarium may by written notice to the Supplier, require the Supplier to correct any defect, repair or replace the defective Goods or Services, or refund to Sanitarium the price paid for the Goods or Services, at Sanitarium’s option.
9.3 Any Goods reasonably considered by Sanitarium to be defective or in breach of this Contract may be returned by Sanitarium to the Supplier at the Supplier’s cost and risk.
9.4 Nothing in this clause will limit Sanitarium’s rights and remedies available in law, including the right to rescind the Contract and to claim damages.
10. Offsite Inspection and Audit
10.1 Without limiting clause 5, Sanitarium and its nominees may, on reasonable notice and at reasonable times, access the Supplier’s records, facilities, and Personnel relevant to this Contract for the purpose of:
(a) inspecting the manufacture and supply of Goods and/or performance of Services;
(b) auditing compliance with the Supplier’s obligations under this Contract, including compliance with Laws, Policies and Procedures.
10.2 The Supplier must provide all reasonable assistance and access required for any audit or inspection undertaken pursuant to this clause 6 and must ensure that its Personnel and relevant subcontractors do the same.
10.3 Where an audit or inspection occurs pursuant to this clause 6 at a location other than a Sanitarium Site, Sanitarium and its nominees will comply with the Supplier’s reasonable instructions, policies and procedures relating to health, safety, and security, as notified in advance.
10.4 Any inspection, audit, or failure to inspect or audit by Sanitarium does not relieve the Supplier of any obligation under this Contract and also does not constitute acceptance of the Goods or Services, nor does acceptance or failure to reject any Goods or Services constitute a waiver of rights.
11. Risk and Title
11.1 Property and risk in the Goods and/or Services will pass to Sanitarium on physical delivery of the Goods to Sanitarium under this Contract, subject to any right of Sanitarium to reject the Goods (including under clause 6).
12. Time and Performance
12.1 Property and risk in the Goods will pass to Sanitarium upon physical delivery of the Goods to Sanitarium under this Contract, subject to Sanitarium’s right to reject the Goods (including under clause 5), in which case risk in those Goods reverts to the Supplier from the time of rejection. In respect of Services, property in any deliverables, reports, or other materials created as part of the Services will pass to Sanitarium upon delivery of those deliverables to Sanitarium, or as otherwise specified in the Contract, and risk in the performance of the Services remains with the Supplier until the Services are completed and accepted by Sanitarium.
12.2 If the Goods are not delivered or the Services are not performed by the time stated in the Contract, Sanitarium is entitled to liquidated damages from the date on which delivery or performance should have taken place. Liquidated damages will be payable at the rate set out in the relevant Order for each complete week of delay, subject to a maximum aggregate amount stated in the Order, or if no amount is stated, the aggregate value of this Contract. If only part of the Goods is delayed, liquidated damages will be calculated on the portion of the price attributable to such part of the Goods as cannot, in consequence of the delay, be used as intended by the parties. Liquidated damages become due at Sanitarium’s demand. No liquidated damages will be payable for delays caused by Force Majeure or Sanitarium’s own acts or omissions.
12.3 Where the Supplier is unable to perform any of its material obligations under this Contract, the Supplier must notify Sanitarium immediately in writing. If the breach is capable of remedy, Sanitarium may give the Supplier written notice requiring remedy within 30 days. If the breach is not remedied within that period, or if the breach is incapable of remedy, Sanitarium may terminate this Contract and cancel all or part of an Order by written notice, without prejudice to any other rights or remedies. Upon termination, Sanitarium will pay the Supplier for Goods and/or Services properly performed and delivered up to the effective date of termination, subject to compliance with the Contract.
13. Site and Personnel Requirements
13.1 If the Supplier is required to supply Goods and/or Services at any of the Sites, the Supplier acknowledges and agrees that:
(a) the Site is part of a business operated by Sanitarium, which may continue to operate throughout the supply of Goods and/or Services;
(b) access to any part of the Site only confers on the Supplier such use and control as is necessary to supply the Goods and/or Services in accordance with the Contract;
(c) Sanitarium may, at any time and on reasonable notice, impose reasonable restrictions on the Supplier’s access to the Site. Where such restrictions materially impact the Supplier’s ability to perform its obligations:
(i) Sanitarium may, where practicable, offer an alternative Site for use by the Supplier; or
(ii) the parties will negotiate in good faith a reasonable variation to the timeframes, costs, or other relevant terms of the affected Order(s).
(d) the Supplier is responsible for ensuring that its Personnel comply with the following at the Site:
(i) all work must cease one hour before sunset each Friday and must not recommence until one hour after sunset on the following Saturday, and all Personnel must vacate the Site during these hours;
(ii) all work must be carried out under proper supervision;
(iii) all Personnel must complete any Site induction processes applicable to the Site before commencing work;
(iv) all Personnel must comply with all applicable Policies and Procedures and WHS Laws;
(v) no alcoholic beverages, illegal drugs, or drugs causing any level of impairment may be brought onto, consumed, used at, or be present in the system of any Personnel attending the Site; and
(vi) all Personnel must carry and display an identity card provided by the Supplier while at the Site.
13.2 Sanitarium may direct the Supplier to cease using any Personnel in connection with the supply of the Goods and/or Services who, in the reasonable opinion of Sanitarium, are incompetent, negligent, infringe any WHS Laws, cause the Supplier, either directly or indirectly, to be in breach of its obligations under this Contract, are unsuitable to supply the Goods and/or Services or who misconduct themselves”.
14. Price
14.1 All prices for Goods and/or Services are in the currency and for the amount specified in the relevant Order, unless otherwise agreed in writing by Sanitarium and the Supplier.
14.2 The Supplier may, by prior written agreement with Sanitarium, provide an annual price list or otherwise set the Price for Goods and/or Services to apply to Orders during the relevant period.
14.3 Unless mutually agreed in writing, the Supplier must not vary the price stated in the Order, regardless of any change in costs to the Supplier after the date of the Order.
14.4 All taxes and import duties required by Law to be paid by Supplier in relation to an Order will be paid by the Supplier. Supplier must include any such taxes and import duties in the same tax invoice as the respective Goods or Services.
14.5 Supplier must send a valid tax invoice for the Goods or Services to the address stated in the respective Order. Unless otherwise stated in this Contract, payment for Goods and/or Services is due and payable thirty (30) days from the end of the month in which a valid invoice has been received.
14.6 Sanitarium may request to vary an Order at any time. If Sanitarium requests material changes to an Order (excluding a change or modification that was necessary for or incidental to the performance and delivery of the Goods and/or Services as set out in the original relevant Order), the parties will meet and negotiate in good faith with a view to agreeing a reasonable adjustment to the price and any other affected terms. Where the variation is required due to any fault, breach, failure to perform or other default of the Supplier (including under clause 8.3), the Supplier must implement the variation at its own cost and is not entitled to any price increase or adjustment, unless otherwise agreed in writing by Sanitarium. If the parties are unable to reach agreement on the adjusted price (or other affected terms) within a reasonable period, Sanitarium may, at its option, terminate the affected Order or this Contract pursuant to clause 18.2.
15. Liability and Indemnities
15.1 The Supplier indemnifies Sanitarium against all Claims and Losses it suffers arising from or in connection with:
(a) loss of (including loss of use of) or damage to real or personal property to the extent caused or contributed to by the Supplier or any of its Personnel;
(b) illness, injury to or death of any person to the extent caused or contributed to by the Supplier or any of its Personnel;
(c) infringement or alleged infringement of Intellectual Property Rights of any person arising out of or in connection with the Supplier’s performance of this Contract;
(d) breach by the Supplier or any of its Personnel of this Contract; or
(e) any negligence, fraudulent, wilfully wrongful or unlawful act or omission, or any misappropriation of assets (including money) by the Supplier or any of its Personnel,
except to the extent that the Loss or Claim was caused or contributed to by Sanitarium.
15.2 Subject to clause 11.3, to the full extent permitted by law, neither party will be liable to the other for any Consequential Loss, even if informed of the possibility of same, arising under statute, common law, tort (including negligence), breach of contract or otherwise.
15.3 Clause 11.2 does not apply to Consequential Loss suffered by Sanitarium for breach by the Supplier or its Personnel of clauses 3.1(c), 3.1(i), 3.1(j), 3.1(k)(ii), 3.1k(viii).
16. Insurance
16.1 The Supplier must, at its own cost, effect and maintain the following insurance policies during the term of this Contract, and for any extended period specified below:
(a) public liability insurance with a minimum coverage of AU$20 million per occurrence;
(b) where Supplier is providing Goods or materials (including packaging) for use in Sanitarium’s products, or as otherwise specified in an Order, product liability insurance with a minimum coverage of AU$20 million per claim;
(c) comprehensive motor vehicle insurance for all vehicles used in connection with the supply of the Goods and/or Services;
(d) workers compensation insurance as required by Law; and
(e) professional indemnity insurance, where the Supplier is performing professional services or as specified in an Order:
(i) with a minimum coverage of AU$2 million per claim and in the annual aggregate; and
(ii) maintained from the date this Contract is formed until seven (7) years after termination of the respective Order.
16.2 The Supplier must, upon request by Sanitarium, promptly provide Certificates of Currency or other evidence reasonably satisfactory to Sanitarium confirming that the insurance policies required under this clause are in place and current.
17. Set off
17.1 Sanitarium may set off against amounts due to the Supplier under this Contract any debt or other moneys due from the Supplier to it under or arising out of this Contract, provided that Sanitarium has provided the Supplier with 5 Business Days’ notice in writing of its intention to exercise its rights under this clause.
18. GST and other taxes
18.1 Except as otherwise specified in this Contract, the price specified in the Order includes all Federal, State, local and foreign taxes, including GST, stamp duties and other government charges upon manufacture, sale or supply or transportation of the Goods and/or upon the provision of the Services. The Supplier will give Sanitarium a tax invoice in the form acceptable under the GST legislation or relevant Law within five (5) Business Days’ of any supply of Goods and/or Services under this Contract.
18.2 Sanitarium will be entitled to withhold the payment of the GST component for any supply made under this Contract unless it receives a valid tax invoice in accordance with clause 14.1.
18.3 Sanitarium will be entitled to withhold PAYG at the applicable withholding rate if the Supplier fails to quote the Supplier’s Australian Business Number in its tax invoice.
19. Intellectual Property
19.1 All Intellectual Property Rights arising out of or in connection with the performance of this Contract by or on behalf of the Supplier vest in Sanitarium upon their creation.
19.2 Nothing in this Contract assigns to Sanitarium any Intellectual Property Rights of the Supplier existing prior to the date of this Contract, except as to the rights explicitly granted under this Contract.
19.3 Supplier grants Sanitarium a fully paid up, royalty free, perpetual, irrevocable and sub-licensable license to use its Intellectual Property Rights to the extent necessary to enable the full use and enjoyment of the Goods and Services and for performing its obligations under this Contract.
19.4 Nothing in this Contract confers on the Supplier any ownership or Intellectual Property Rights of Sanitarium or in anything supplied to it by or on behalf of Sanitarium.
19.5 Except with Sanitarium’s prior written consent, Sanitarium grants the Supplier a fully paid-up, royalty free, revocable, non-transferable, non-sublicensable and non-exclusive license to use, modify, merge with other material and reproduce its Intellectual Property Rights for the Term, for the sole purpose or, and only to the extent necessary for, performing its obligations under this Contract. Upon termination of this Contract, all licenses granted under this clause are terminated and Supplier must cease using Sanitarium’s Intellectual Property Rights.
19.6 The Supplier warrants, represents and covenants that the:
(a) use, maintenance, modification, reproduction, destruction and/or repair of any Goods and/or Service by or on behalf of Sanitarium will not infringe any Intellectual Property Rights; and
(b) Supplier has obtained unequivocal waivers or consent from all Intellectual Property Rights’ holders (including authors of moral rights incorporated into any Good or Service) sufficient to permit:
(i) the Supplier to perform all of its obligations under this Contract; and
(ii) Sanitarium to deal with any such thing as it thinks fit.
20. WHS
20.1 The Supplier must, and must ensure that its Personnel, at all times comply with Sanitarium’s reasonable directions and applicable WHS Laws and Australian standards relevant to work health and safety.
20.2 The Supplier must not do anything which puts or could put Sanitarium or the Supplier in breach of any WHS Law and acknowledges and agrees that a breach of this clause 16 will constitute a material breach for the purposes of clause 18.1(a).
20.3 In performing this Contract, the Supplier must:
(a) comply with its obligations under the WHS Laws as a person conducting a business or undertaking;
(b) conduct all relevant risk assessments and put in place measures to, so far as is reasonably practicable, eliminate or minimise risks to work, health and safety arising from such performance;
(c) ensure that, if a Law requires that:
(i) the Supplier consult, cooperate and coordinate its activities with other duty holders who may have obligations in relation to the Site or Sanitarium’s operations, it does so;
(ii) a person:
(A) be authorised or licensed to carry out a particular activity, that such a person is so authorised or licensed and complies with all conditions of such authorisation or licence; or
(B) has prescribed qualifications or experience or, if not, is supervised by a person who has prescribed qualifications or experience, that person has the required qualifications or experience or is so supervised; or
(iii) a workplace, plant, substance or design, or work or class of work, be authorised or licensed, that thing is so authorised or licensed;
(d) without limiting the Supplier’s obligations under this Contract or at Law, provide Sanitarium with:
(i) all information and documentation directed by Sanitarium to enable Sanitarium to comply with its obligations under the WHS Laws; and
(ii) copies of all notices and communications received by the Supplier from a regulator or any third-party concerning work health and safety in connection with or related to this Contract,
within 3 Business Days’ after such direction or receipt, or in the case of a notifiable incident under WHS Laws, as soon as practicable but no more than within 1 Business Day.
(e) ensure that, if directed by Sanitarium, before the Supplier or anyone on its behalf accesses the Site, the Supplier:
(i) prepares a work, health and safety plan that addresses safe work method procedures and work, health and safety requirements relating to the performance of the Services and provision of the Goods; and
(ii) provides risk assessments, safe work method statements, work, health and safety plans and all other documents outlining the safe use of any Good or provision of any Service to Sanitarium and always keep a copy of such documentation at the Site; and
(iii) make such documentation available to Sanitarium as soon as practicable upon request.
21. Confidentiality
21.1 Each party undertakes to keep the Confidential Information of the other party secret and to protect and preserve the confidential nature and secrecy of the Confidential Information, except as permitted under this clause 17.
21.2 A Recipient may only use the Confidential Information of the Discloser for the purpose of performing the Recipient’s obligations or exercising the Recipient’s Rights under this contract.
21.3 The Recipient may only disclose Confidential Information of the Discloser:
(a) to its Personnel and professional advisers who need to know such Confidential Information, provided that such persons have agreed to keep such Confidential Information confidential on no less stringent terms than those imposed on the Recipients under this clause 17;
(b) to the extent required by law, or in order to comply with the rules of any stock exchange or as required by any regulator, provided that the Recipient discloses no more than the minimum amount of Confidential Information required to satisfy such law, rule or regulator; or
(c) with the prior written consent of the Discloser.
21.4 The Recipient must notify the Discloser of any unauthorised use, copying or disclosure of Confidential Information that has occurred or that the Recipient reasonably believes has occurred, as soon as practicable and in any event within 24 hours of becoming aware of such actual or reasonably suspected unauthorised use.
21.5 Clause 17.1 does not apply to the disclosure of Confidential Information of a Disclosing Party:
(a) which is made public through no default of the Receiving Party or any of its Personnel; or
(b) the disclosure of which is:
(i) required by Law; or
(ii) made to a court or tribunal in the course of proceedings to which the Receiving Party is a party.
21.6 The Supplier must not make any public announcement or disclose any information concerning Sanitarium, any of its Personnel, this Contract, or Sanitarium’s operations for distribution through any media or on any platform without Sanitarium’s prior written consent.
21.7 Upon termination or expiry of this Contract, the Supplier must promptly return to Sanitarium or, if directed by Sanitarium, destroy all Confidential Information and materials belonging to Sanitarium, and all notes or records based on or incorporating any Confidential Information, except to the extent that the Supplier is required by Law to retain any such information or records (for example, for tax purposes). Where retention is required by Law, the Supplier may retain only the minimum information necessary and only for the period required by Law, after which it must be promptly deleted or destroyed.
22. Termination
22.1 Either party is entitled to terminate this Contract or an Order with immediate effect, by giving written notice to the other party if:
(a) the other party commits any continuing or material breach of the provisions of this Contract and:
(i) in the case of such a breach which is capable of remedy, fails to remedy the breach to the satisfaction of the non-defaulting party within 30 days after receipt of a written notice by the non-defaulting party giving full particulars of the breach and requiring it to be remedied; or
(ii) if the breach is not capable of remedy in the reasonable opinion of the non-defaulting party, by serving on the defaulting party a notice of termination; or
(b) the other party is subject to an Insolvency Event.
22.2 Sanitarium may terminate this Contract or an Order for convenience by giving 60 days’ written notice to the Supplier. In the event Sanitarium terminates this Contract or an Order under this clause 18.2, Sanitarium will pay to the Supplier for Goods and/or Services properly performed and delivered up to the effective date of termination, subject to compliance with this Contract. Sanitarium’s liability to the Supplier in connection with termination will be limited to:
(a) the price for Goods and/or Services actually delivered and Services actually performed in accordance with this Contract up to the effective date of termination under this clause 18.2, calculated on a pro-rated basis; and
(b) the verifiable, direct and reasonable costs of any unique materials reasonably ordered by the Supplier for the Goods and/or Services and:
(i) were purchased under this Contract with Sanitarium’s prior written approval;
(ii) cannot be returned, repurposed, resold or otherwise used by the Supplier;
(iii) for which the Supplier provides Sanitarium with itemised evidence of the cost actually incurred; and
(iv) which become the property of Sanitarium upon payment.
Sanitarium will not be liable for any other costs, including subcontractor cancellation fees, restocking fees, internal labour or overhead costs, or Consequential Loss. The Supplier must take all reasonable steps to mitigate any costs arising from the termination. The Supplier must provide Sanitarium with sufficient, itemised and verifiable evidence of all costs claimed under this clause (b), including copies of purchase orders, invoices and evidence that the materials cannot be returned, repurposed or resold. Sanitarium will pay any amounts due under this clause within thirty (30) days from the end of month in which an invoice has been received and sufficient, itemised and verifiable evidence from the Supplier has been provided to Sanitarium. For the avoidance of doubt, Sanitarium’s liability to the Supplier in connection with termination under this clause 18.2 will be strictly limited to the matters set out above.
22.3 Upon termination or expiration of the Contract:
(a) each party must immediately return all documents, information, equipment and materials or any other thing belonging to the other party or to which the other party is entitled; and
(b) the Supplier must vacate all of the Sites if any of the Supplier’s Personnel are present at any of the Sites and remove all of the Supplier’s equipment from all of the Sites.
23. Dispute Resolution
23.1 Without limiting a party’s right to terminate this Contract, if a Dispute arises in relation to this Contract, then:
(a) the party that wishes to raise a Dispute must notify the other party in writing of the nature of the Dispute (‘Notice of Dispute’
(b) the Notice of Dispute must state that it is a dispute under this clause 19;
(c) upon the issue of a Notice of Dispute, a senior representative from each party with authority to resolve the Dispute will meet within 5 Business Days to attempt to resolve the Dispute;
(d) any meetings or discussions held between the parties to resolve the Dispute will be held on a ‘without prejudice’ basis;
(e) if an agreement is reached to resolve the Dispute, the agreement will be documented in writing and signed by all parties; and
(f) if no agreement is reached between such representatives (including where no meetings have been held) within 20 Business Days’ following a Notice of Dispute, either party may commence legal proceedings.
23.2 During a Dispute, the parties will continue to perform their obligations under this Contract.
23.3 This clause 19 does not prevent a party from seeking urgent or injunctive relief.
24. Modern Slavery and Supply Chain
24.1 The Supplier must:
(a) not engage in Modern Slavery or do anything that would be an offence under the Modern Slavery Law;
(b) comply with all applicable Modern Slavery Laws;
(c) comply with Sanitarium’s Policies and Procedures relating to Modern Slavery (as notified to the Supplier from time to time);
(d) maintain complete and accurate records sufficient to demonstrate the source of all Goods and/or Services and the Supplier’s compliance with this clause 20;
(e) on Sanitarium’s request, provide Sanitarium (or its nominee) with reasonable access to the Supplier’s premises, systems, personnel and records for the purpose of assessing the Supplier’s compliance with this clause;
(f) immediately notify Sanitarium of any actual, suspected or alleged Modern Slavery in the Supplier’s operations or supply chain relating to the Goods and/or Services; and
(g) ensure that its subcontractors and suppliers are bound by obligations no less onerous than those set out in this clause 20.
24.2 The Supplier must comply with Sanitarium’s reasonable directions in connection with Sedex Members Ethical Trade Audit (SMETA) processes, including providing information, access and cooperation required to support SMETA- related assessments.
25. General
25.1 Approvals: The Supplier must provide all necessary information to, and obtain all necessary permits, approvals, licences, insurance, consents, authorisations and exemptions from, any government authority or other appropriate body, in respect of the Supplier’s supply of Goods and Services acquired by Sanitarium under this Contract.
25.2 Assignment: Neither party will, without the prior written consent of the other party, transfer or assign any of its rights or obligations under this Contract. If a party is a company, any Change of Control of the party will be deemed to be an assignment of this Contract that requires the consent of the other party under this clause 21.2, but such consent must not be unreasonably withheld.
25.3 Subcontracting: The Supplier must not, without Sanitarium’s prior written consent, subcontract any of its obligations under this Contract to a third party. The Supplier represents, warrants and covenants that to the extent it employs, retains, hires or utilises any sub-company, distributor, agent, consultant or other third party (‘Subcontractor’) in connection with this Contract, the Supplier shall:
(a) incorporate into its agreement with each Subcontractor contractual terms that are no less onerous than the obligations imposed on the Supplier under this Contract, including all compliance‑related, ethical sourcing, Modern Slavery, confidentiality, data protection and audit obligations; and
(b) ensure that each Subcontractor performs its obligations as if it were the Supplier under this Contract.
The Supplier remains fully liable for all acts, omissions and defaults of any Subcontractor as though they were the acts, omissions and defaults of the Supplier.
25.4 Waiver: A waiver of a provision of this Agreement must be in writing signed by the party waiving its rights and shall apply only in the specific instance and for the specific purpose given. The giving of a waiver in one instance or for one purpose shall not create an implied obligation to give a waiver in another instance or for another purpose.
25.5 Anti-Corruption: Each of the parties agree to comply with the Anti-Corruption Laws and must not commit any act or omission which causes or could cause it or the other party to breach, or commit an offence under, Anti-Corruption Laws. Each party warrants, represents and covenants that it has not been convicted of any offence, and has not been the subject of any investigation or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence, under any Anti-Corruption Laws. Each party must, to the extent permitted by law, promptly notify the other party in writing if it becomes aware at any time during the term of this Contract that any of the representations, warranties and covenants set out in this clause 21.5 are, or might reasonably be expected to be, no longer correct. If any party violates the provisions of this clause 21.5, it is deemed a material breach of this Contract which is incapable or remedy. The observant party may terminate this Contract upon written notice to the other party pursuant to clause 18.1(a)(ii).
25.6 Payment Card Industry Data Security Standard Compliance: The Supplier represents, warrants and covenants that, to the extent the Payment Card Industry Data Security Standard (PCI DSS) applies to the Goods and/or Services, the Supplier will at all times comply with PCI DSS and any successor or replacement standards. The Supplier must maintain all certifications, controls, processes and safeguards necessary to ensure such compliance and, upon Sanitarium’s request, provide evidence of its PCI DSS compliance.
25.7 Cyber Security: The Supplier must implement and maintain cyber security measures, controls, systems and safeguards that are consistent with good industry practice and appropriate to the nature of the Goods and/or Services and the sensitivity of any data handled in connection with this Contract. The Supplier must ensure that all Sanitarium data (whether or not it constitutes Confidential Information) is protected against unauthorised access, use, modification, disclosure, loss or other compromise. The Supplier must notify Sanitarium in writing within 48 hours of any actual, suspected or reasonably believed cyber security incident, data breach, unauthorised access, or other compromise involving Sanitarium data. The Supplier must promptly provide all information reasonably requested by Sanitarium in relation to the incident and take all steps necessary to investigate, contain, remediate and prevent recurrence.
25.8 Sanctions: The Supplier represents, warrants and covenants that it is not subject to any Trade Sanctions, and its Personnel are not listed on any lists of sanctioned persons for Trade Sanctions. If at any time Sanitarium reasonably believes that this Contract, or any payment or performance under it, could reasonably be expected to expose Sanitarium to liability under any Trade Sanctions, Sanitarium may, by written notice to the Supplier, immediately terminate this Contract without liability. This includes no obligation to pay any outstanding amounts to the extent that such payment would breach, or could reasonably be expected to breach, any Trade Sanctions.
25.9 Governing law and jurisdiction: This Contract will be governed by and is to be construed in accordance with the laws in force in the State of New South Wales, Australia and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of that State.
25.10 Illegality: These Conditions are in addition to any rights the parties may have under the Law. Where any condition of these Conditions is held to be illegal, void or unenforceable, this Contract will be read as if such term or condition had never been included and was severed from this Contract leaving the remainder of this Contract legal, valid and enforceable.
25.11 Survival: Termination or expiry of this Contract does not affect rights or obligations of the parties that may have accrued before the effective date of termination or expiry. Further, any term which by its nature is intended to survive termination shall do so, including clauses 11, 12.1(e), 12.2, 15.3, 17, 18.3 and 19.
25.12 Force Majeure Event: Neither party will be liable for any failure or delay in performance under this Contract to the extent caused by a Force Majeure Event, provided that it notifies the other party as soon as reasonably practicable that it is affected by the Force Majeure Event and when it expects to be able to re-commence performance or its obligations under this Contract. If the Force Majeure Event continues for more than 30 consecutive days, either party may terminate the Contract by written notice. A Force Majeure Event does not constitute a breach of this Agreement.
25.13 Independent Contractor: The Supplier is an independent contractor of Sanitarium to supply the Goods and/or Services, and nothing in this Contract shall create, constitute or evidence any employer/employee relationship between the parties (or any partnership, joint venture, agency or trust).
ANNEXURE A: SUPPLY STANDARDS - GOODS
The standards in this Annexure A apply to the supply of Goods and/or Services, as relevant, and supplement the Specifications. To the extent of any inconsistency, the Specifications prevail.
6. Regulatory & Sanitarium requirements
6.1 Food Regulations
All material, preparation and storage conditions must comply with the pertinent Australia New Zealand regulations including the Australia New Zealand Food Standards Code.
7. Material handling requirements
This section defines requirements for transport, packaging, handling, storage and sanitation of all ingredients and packaging materials. If more specific requirements for individual materials are required these requirements will be included in the material’s Raw Material Specification.
7.1 Packaging
(a) All materials, including imported material, must be packed in sanitary conditions from premises that conform to the requirements of the health regulations in all states and territories of Australia or in New Zealand, as appropriate.
(b) Materials must be contained in new or new-condition packaging or containers that are clean, dry and free from foreign odours, infestation or contamination. Sealing of bags must be by either heat sealing or knotting. The use of wire staples, metal or plastic clips, elastic rings, rubber bands or binder twine is not permitted. Jute or multi-walled bags must be neatly sewn with smooth finished twine.
(c) Sanitarium will not accept any material supplied in glass.
7.2 Lot Coding and Labelling
(a) All materials must be clearly identified by a lot or batch coding system. A lot code must represent and be traceable to a specific time of packing and production.
Suppliers name
Full name of material
Manufacturing date
Net weight or quantity
Lot or batch number
Manufacturing site identification
(b) Inks and/or branding materials must be non-odorous and non-toxic and must not have contact with the contents.
7.3 Storage
(a) All materials prior to delivery must be stored in a clean, dry, area that is well ventilated and away from direct sunlight, harmful and odorous chemicals or materials and be maintained free of infestation of any kind.
(b) Where the material is temperature sensitive the recommended temperature must be maintained at all times.
(c) Specific storage requirements relating to wheat is outlined in the Sanitarium Wheat Specification.
7.4 Stock Rotation
(a) Stock rotation policy should ensure the freshest possible stock is consistently delivered. In addition to the stock rotation policy, there shall be a minimum of 60% or 6 months shelf life remaining on delivery.
7.5 Palletisation
(a) Palletised deliveries must come with a Pallet Sheet.
(b) Pallets must be loaded and secured in such a way as to withstand pallet inversion.
(c) Pallets must be “food grade” quality as well as complete, dry, clean, and free from protruding sharp objects or edges and free from harmful or foreign substances. Preferred suppliers are: for Australia – Chep; for New Zealand - Chep.
(d) Any material supplied on a pallet must not overhang the edge of the pallet without Sanitarium’s approval.
(e) If strapping is used to secure the material, it must not damage the material.
(f) Materials must be packaged in such a way as to prevent water damage. This is generally achieved by a total shrink-wrapping of the pallet.
(g) The maximum weight of any pallet is 1200 kg.
7.6 Containers and Transport
(a) Vehicles and shipping containers used for transportation of materials must be of “food grade” standard and must:
(i) Protect the material from the environment.
(ii) Be visually clean and free of odours. Any other cargo transported with this supply shall also be visually clean and free of odours.
(iii) Be dry.
(iv) Be free of structural damage that may impact the material.
(v) Be free from any infestation or contamination. Any other cargo transported with this supply shall also be free from any infestation or contamination.
(vi) Maintain material temperature requirements.
(vii) When the material is transported on open topped vehicles each load must be covered by a clean, dry tarpaulin. Action must be taken to prevent damage to ingredients by load securing ropes.
(viii) Specific transport requirements relating to wheat is outlined in the Sanitarium Wheat Specification.
(ix) Where the material requires cold chain transporting, records must be available, which show the material has remained at the required temperature.
7.7 Delivery
(a) All deliveries must be made according to instructions on the purchase order, included as to allocated timeslots. The supplier acknowledges that the Sites and delivery locations are heavily trafficked and subject to regimented delivery times.
(b) The preferred times of delivery for Goods are 6.30am- 2.30pm Monday to Thursday, and no deliveries on Fridays.
7.8 Documentation
(a) Each delivery must be accompanied by documentation that describes the materials and which specify the:
(i) Sanitarium order number; and
(ii) Sanitarium Part Number.
7.9 Invoice to be sent to Head Office Finance
(a) Invoices must be sent to the Head Office Finance and include all of the following:
(i) Pallet transfer docket.
(ii) Quantity.
(iii) Batch and Lot numbers.
(iv) Number of pallets in the delivery.
(v) Number of items per pallet.
(vi) Any other documentation as outlined on the individual material specification. E.g. Certificate of Analysis.
8. Supplier responsibility
(a) The Supplier (or potential supplier) will agree to allow the reasonable access of Sanitarium representatives to audit the Supplier’s plant or distribution facilities relating to raw materials which form (or will potentially form) part of the Goods and/or Services and which are specified by Sanitarium in writing to the Supplier, or where required, arrange for an inspection with their supplier.
(b) It is the responsibility of the Supplier to ensure that the material supplied complies with the relevant Sanitarium Raw Material Specification, supplier completed Product Information Form, supplier completed cover letter, any accompanying documentation required and the Standard Conditions of Purchase of Goods by Sanitarium.
(c) Responsibility for the quality of the material is borne by the supplier until the goods have been received into stock by Sanitarium. It is a requirement that all suppliers comply with the terms of the Ethical Trading Initiative (ETI), and International Labour Organisation (ILO) Conventions.