Purchase Terms

Terms and Conditions of Purchase – Australia

Version: 31 October 2023

1. Interpretation: “Applicable Laws” means laws and regulations applicable to the supply of Goods and/or Services pursuant to these Terms; “Change of Control” means a change in the identity of the person or persons who is or are able to control an entity; “Goods” means the goods being purchased under these Terms; “GST” means GST as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time (“GST Act”) or any replacement or other relevant legislation or regulations; “Insolvency Event” means circumstances in which the Supplier is unable to pay its debts as they fall due or otherwise takes any corporate action or any steps are taken or legal proceedings are started for: (a) its winding-up, dissolution, liquidation, or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by Supplier; (b) the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it or of any of its revenues and assets; or (c) seeks protection or is granted protection from its creditors, under any Applicable Laws; “Intellectual Property Rights” means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, trade marks, trade secrets, know-how, confidential information, patents, invention and discoveries; “Modern Slavery” has the meaning given in Modern Slavery laws; “Modern Slavery Laws” means any legislation relating to Modern Slavery, Modern Slavery-like practises or similar matters; “Modern Slavery-Like Practices” include, without limitation, child labour, trafficking in persons, forced labour, debt bondage, deceptive recruiting for labour and services, slavery, servitude and other forms of serious exploitation “PPSA” means the Personal Property Securities Act 2009 (Cth); “Purchaser” means the company from the PepsiCo group set out in the Purchase Order, including but not limited to The Smith’s Snackfood Company Pty Ltd, PepsiCo Australia Holdings Pty Ltd, Quaker Oats Australia Pty Ltd and Sakata Rice Snacks Australia Pty Ltd; "Purchase Order" means a written order submitted by the Purchaser to the Supplier in any form requesting that the Supplier supply Goods or Services in accordance with these Terms; “Representatives” means any director, officer, employee, consultant, adviser, partner, agent, distributor or contractor of a party; “Services” means the services to be performed by the Supplier under these Terms; “Supplier” means the entity from whom the Goods/Services which are the subject of these Terms, are being ordered; and “Terms” means these terms and conditions of purchase.

2. Application: These Terms apply to any Purchase Order the Purchaser places with the Supplier, unless otherwise agreed in writing. Notwithstanding any other provision in these Terms, to the extent that there are any inconsistencies between these Terms and a Purchase Order, the Purchase Order takes precedence. These Terms do not apply where the Purchaser has in place a written supply agreement relating to the supply of the relevant Goods and/or Services by the Supplier. The Purchaser’s acceptance of, or payment for, Goods and/or Services will not constitute acknowledgement or acceptance of the Supplier’s sale terms, which are expressly rejected.

3. Contract: The Purchaser will issue the Supplier with a Purchase Order. The Purchase Order constitutes an offer by the Purchaser to purchase the Goods and/or Services detailed in the Purchase Order. The Purchase Order will be deemed to be accepted by the Supplier on the earlier of: (a) the Supplier issuing a written acceptance of the Purchase Order; or (b) the Supplier doing any act consistent with fulfilling the Purchase Order. Once accepted, the Purchase Order will constitute a new contract between the parties incorporating these Terms. The Purchase Order supersedes all previous communications and negotiations between the parties relating to the subject matter of the Purchase Order.

4. Price and Payment Terms: Unless otherwise specified in the Purchase Order, payment for the Goods and/or Services will be made to the Supplier within 60 days from the date of the invoice. The price for the Goods and/or Services will be the price specified on the Purchase Order. Unless otherwise agreed in writing, the price will be in Australian dollars and includes: (a) all delivery and packaging costs including, but not limited to, import/export clearances, shipping, carriage and insurance costs; and (b) GST, sales tax, excise duty and any other applicable taxes. No other fees or charges will be payable unless agreed in writing by the Purchaser prior to such expenses being incurred. The price of the Goods and/or Services may only be varied by agreement in writing between the Supplier and Purchaser.

5. Invoices: The Supplier must submit an invoice to the Purchaser for each individual Purchase Order. Invoices must be emailed to AU_food@prod.sourcehov.com in accordance with guidelines issued by the Purchaser and also uploaded electronically to the Purchaser’s current electronic purchasing system, as is notified by the Purchaser from time to time. Invoices must not be issued prior to delivery of the Goods and/or Services. Invoices must show: (a) the destination to which the Goods and/or Services were delivered; (b) the Purchaser’s Purchase Order number; and (c) in the case of Goods, the Supplier’s packing slip number. If at any time the Purchaser disputes the amount of an invoice (“Disputed Amount”) the Purchaser does not have to pay the Disputed Amount until the dispute is resolved but the Purchaser must pay any undisputed amounts. The parties shall enter good faith negotiations to resolve any Disputed Amount. The Supplier may not, wholly or partially, suspend, cancel or withdraw the provision of the Goods and/or Services or terminate these Terms or a Purchase Order if an invoice is disputed. The Purchaser may deduct any money the Supplier owes to the Purchaser on any account whatsoever from any money which the Purchaser may be liable to pay the Supplier. 6. GST: Save for defined terms in these Terms, capitalised expressions in this condition 6 bear the same meaning as those expressions in the GST Act. Except where express provision is made to the contrary, and subject to this condition 6, any amount that may be payable under or in connection with these Terms is inclusive of any GST. To the extent that any supply made under or in connection with these Terms is a taxable supply, the GST exclusive consideration to be paid or provided for that taxable supply is increased by the amount of any GST payable in respect of that taxable supply and that amount must be paid at the same time and in the same manner as the GST exclusive consideration is to be paid or provided. A party’s right to payment under these Terms is subject to a valid tax invoice being delivered to the party who is the recipient of the taxable supply. To the extent that one party is required to reimburse another party for costs incurred by the other party, those costs do not include any amount of GST in respect for which the party is entitled to claim as an Input Tax Credit.

7. Delivery: The cost of delivery of the Goods is included in the price of the Goods, unless otherwise stated on the Purchase Order. Any Goods delivered in error or in excess of the quantity stated on the Purchase Order may be returned to the Supplier at the Supplier’s risk and expense. The Supplier must deliver the Goods and/or Services in accordance with the Purchase Order, including delivering: (a) on the date specified in the Purchase Order; (b) to the location specified; and (c) during normal operating hours at the delivery location. The Supplier must notify the Purchaser immediately if it cannot supply the Goods and/or Services within the time stated in the Purchase Order.

8. Acceptance: Following delivery, the Purchaser may inspect the Goods and/or Services and must use reasonable endeavours to give notice in writing to the Supplier of any unsatisfactory or defective Goods or Services within a reasonable timeframe after receipt of the Goods and/or Services, and in any event, as soon as possible after becoming aware of the problem. Any non-complying Goods may be returned by the Purchaser, having substantiated its claim, to the Supplier at the Supplier’s expense. Short deliveries notified to the Supplier and substantiated in accordance with this clause will be rectified by the Supplier. The Purchaser’s acceptance of delivery or payment for the Goods and/or Services prior to the Purchaser’s inspection will not be construed as an acceptance of the non-complying Goods and/or Services.

9. Risk and title: Any risk associated with the Goods remains with the Supplier until delivery of the Goods to the Purchaser in accordance with these Terms. Title in the Goods passes to the Purchaser upon delivery of the Goods to the Purchaser. The Goods must be free of encumbrances and all other adverse interests (including any Security Interest, as that term is defined in the PPSA).

10. Variation or termination of a Purchase Order: The Purchaser may by notice in writing terminate all or any part of the Goods and/or Services that have not yet been provided and which are the subject of a Purchase Order at any time. Provided the termination is not due to the Supplier’s breach of these Terms or a Purchase Order, or pursuant to a right under condition 20, the Purchaser shall pay the Supplier reasonable costs incurred in provisioning the Purchase Order up until termination, which cannot otherwise be recouped by the Supplier. These costs may include(a) Goods and/or Services actually delivered prior to such termination; (b) Goods that have been manufactured prior to termination and which the Supplier, using reasonable endeavours, is unable to sell to another customer; and (c) any of the Goods and/or Services for which the Purchase Order is not terminated. The Purchaser may at any time prior to the delivery of the Goods and/or Services issue written instruction authorising or requiring additions, deletions or alterations to the Purchase Order.

11. Warranty: The Supplier warrants and represents that: (a) the Goods are free from all charges and encumbrances and all other adverse interests (other than encumbrances which will be released at or before the time title in the Goods passes to the Purchaser) and that the Purchaser will enjoy quiet possession of the Goods; (b) the Goods are and will remain free from any Security Interest (as that term is defined in the PPSA); (c) the Goods will be of merchantable quality and fit for any purpose which is made known to the Supplier by the Purchaser or for which the Goods are commonly supplied; (d) the Goods will be free from defects in design, material and workmanship; (e) where the Goods are supplied by reference to a sample or description, that the Goods will correspond with the sample or description; (f) where applicable, the Goods will have an appropriate proportion of their standard shelf life remaining on delivery to the Purchaser; (g) the Goods and/or Services comply with the specifications contained in the Purchase Order and with all other specifications supplied by the Purchaser in connection with the Goods and/or Services; (h) the Goods and/or Services do not infringe any Intellectual Property Rights of any other person; (i) the Goods and/or Services will comply with all Applicable Laws, rules, statutory and other legal requirements; (j) the Supplier holds and will comply with all necessary licences, permits and other approvals required for the manufacture, packing, supply and storage of the Goods and the provision of the Services; (k) the Supplier and its personnel are qualified to provide the Services; (l) the Services will be performed using an acceptable level of due care and skill; and (m) the Supplier will perform all of its obligations under these Terms and a Purchase Order in compliance with all Applicable Laws.

12. Remedies: Without prejudice to any other remedy available to the Purchaser, if: (a) the Supplier does not deliver the Goods and/or Services by the delivery date (in accordance with condition 7); or (b) the Purchaser discovers that the Goods and/or Services do not meet the standards and requirements set out in these Terms or the relevant Purchase Order, the Purchaser notifies the Supplier within a reasonable timeframe after becoming aware of the issue and the non-compliance is material; whether after delivery of or payment for the Goods and/or Services and notwithstanding the Purchaser’s acceptance of the Goods and/or Services, then, the Purchaser will have the right to any one or more of the following remedies (provided that the Purchaser is not entitled to remedies which would put it in a better position than if these Terms or a Purchase Order had been performed as agreed): (i) reject the Goods or Services (in whole or in part) and, return them to the Supplier at the Supplier’s own risk and expense; (ii) require the repayment of any payment made by the Purchaser in relation to undelivered, rejected and/or returned Goods and/or Services (iii) require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods; (iv) require the Supplier to re-perform the rejected Services, or to provide a full refund of the price of the rejected Services; and (v) require the Supplier to pay for the cost of the repair or replacement of the Goods.

13. Recalls: The Supplier must notify the Purchaser immediately on becoming aware of any problem encountered in the manufacture, packaging, storage or transport of the Goods that may have an adverse impact on the quality and/or safety of the Goods.

14. Insurance: The Supplier must maintain appropriate product liability insurance cover for personal injury and property damage caused by the Goods and/or Services in an amount not less than AU$20,000,000 (or such other amount agreed in writing by the Purchaser) for any one claim with a reputable insurer and such other insurance cover reasonably requested by the Purchaser. If the Supplier fails to obtain such insurances, the Purchaser may arrange for appropriate insurance and charge the Supplier with the cost. On request, the Supplier must provide the Purchaser with evidence of the Supplier’s compliance with this condition 16.

15. Confidential Information: Each party acknowledges that it may receive confidential information from the other party. The parties must treat all confidential information as confidential and must not use, exploit or disclose the confidential information to any person (except the parties' Representatives and then only to such extent as may be required to enable the parties to comply with the provisions of these Terms) without the prior written consent of the other party. The parties will use the confidential information only for the purpose for which it has been provided.

16. Recordkeeping: The Supplier must keep and produce on request by the Purchaser, records in relation to Purchase Orders and the Goods and/or Services supplied under these Terms (including any documents necessary for tracing purposes) for any period required by Applicable Laws and in any event for a minimum period of 7 years.

17. Intellectual Property Rights: Neither party transfers any right, title or interest in any Intellectual Property Rights of the respective party to the other. The Supplier must not use any of the Purchaser’s Intellectual Property Rights unless authorised by the Purchaser in writing. Neither party will cause or permit anything that may amount to misuse, interference with, damage or endangerment to the Intellectual Property Rights of the other party or their suppliers, or assist or allow others to do so. Each party undertakes to advise the other party immediately if it becomes aware of any unauthorised use, or attempted use, by any person of the other party’s Intellectual Property Rights.

18. Termination: Either Party may terminate these Terms: (i) upon 30 days written notice to the other Party if the other Party is in breach of any of these Terms or the Purchase Order, and where the breach is capable of remedy, has not been remedied by the other Party upon notice and within a reasonable timeframe; (ii) immediately by notice in writing if (a) an Insolvency Event occurs in relation to the other Party; (b) the other Party sells, or agrees to sell, its business; or (c) the other Party is a body corporate and a Change of Control occurs that the first Party reasonably believes could materially affect its interests. The Purchaser may terminate these Terms upon 30 days written notice to the Supplier if (a) the supply of Goods and/or Services by the Supplier is, in the Purchaser’s reasonable opinion, materially irregular or not available for a period of not less than 6 weeks; and (b) the Supplier is in material breach of any other agreement it has with the Purchaser.

19. Assignment: The Supplier’s rights arising out of or under these Terms may only be assigned with the prior written consent of the Purchaser. The Purchaser may assign its rights arising out of or under these Terms at any time without notice so long as the Supplier is not materially disadvantaged as a result of such assignment.

20. Governing Law: These Terms are to be governed by and construed in accordance with the laws of NSW. The parties submit to the non-exclusive jurisdiction of the courts of NSW and any courts which may hear appeals from those courts.

21. Survival: Any obligations in these Terms which are of a continuing nature or which are not fully satisfied and discharged on fulfilment or termination of a Purchase Order, will continue to apply.

22. Anti-bribery: The Supplier shall comply with all applicable laws, rules and regulations relating to anti-bribery laws. The Supplier agrees that it will not corruptly make any offer, payment, promise of gifts or money or any other thing of value to any government official or employee, political party or political candidate (“Government Official”) for the purpose of influencing any act or decision of such Government Official, inducing such Government Official to act in violation of their lawful duty or securing any improper advantage.

23. Supplier Code of Conduct: These Terms shall be subject to and the Supplier shall adhere to PepsiCo Inc.’s Worldwide Supplier Code of Conduct, available at http://www.pepsico.com/docs/album/supplier-code-of-conduct/pepsico-global-scoc-final_english.pdf, as amended from time to time.

24. Global Information Security Requirements: The Supplier must comply with the Purchaser’s Global Information Security Requirements as are notified to the Supplier from time to time.

25. Policies: The Supplier and the Supplier’s personnel must comply with any policies notified from time to time and all lawful directions and requirements by PepsiCo, including relating to access to any PepsiCo or third-party site that the Supplier’s personnel may be required to attend to perform this Agreement.

26. Modern Slavery: (1) The Supplier warrants, represents and agrees that: (a) the Supplier complies with and will continue to comply with all applicable Modern Slavery Laws; (b) the Supplier will immediately (and, if not possible to do so immediately, then as soon as possible) provide us with all information, data, reports, statements and other documentation, and all other assistance and support (including assisting us in undertaking any due diligence processes): (i) as reasonably required by us to enable us to comply with the Modern Slavery Laws; and/or (ii) to establish and demonstrate that the Supplier is complying with this clause 26; (c) the Supplier has thoroughly investigated and inspected the Supplier’s labour practices and the labour practices of the Supplier’s personnel, to ensure that no Modern Slavery is used anywhere in your operations or supply chain or in the operations or supply chains of any of the Supplier’s personnel; (d) the Supplier has put in place all necessary processes, procedures, investigations and compliance systems and measures to ensure that the Supplier can provide the warranties under this clause 26, at all times; and (e) the Supplier has taken, and will take, all necessary actions, investigations and inspections to validate the warranties provided under this clause 26. (2) This clause 26 will survive termination or expiry of this Agreement.

27. Raw Material Quality and Food Safety Policy: The Supplier must comply with the provisions of the Purchaser’s Raw Material Quality and Food Safety Policy, as notified to the Supplier from time to time.

28. Changes to Policies: To the extent that compliance with a change to an existing policy or implementation of a new policy has an impact on Supplier’s provisions of the Goods or Services, Supplier may request Purchaser to discuss and negotiate in good faith any concerns the Supplier has with the changes.

29. Severance: If any provision of these Terms or any part of a provision of these Terms is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from these Terms without affecting the enforceability, validity or legality of these Terms and the remaining clauses (or parts of those clauses) which will continue in full force and effect.