1. APPLICATION OF PURCHASE TERMS

Unless otherwise agreed in writing by GrainCorp (including in any formal supply agreement entered into by GrainCorp and the Supplier):
a) these Purchase Terms (as varied from time to time) and the relevant Order will govern the purchase of Goods and/or Services by GrainCorp from the Supplier; and
b) if there is any inconsistency (whether expressly referred to or to be implied from these Purchase Terms or otherwise) between the provisions of these Purchase Terms and those of any document of the Supplier, the provisions of these Purchase Terms prevail to the extent of inconsistency.
c) Goods and/or Services and their provision are purchased on the basis that the Supplier asserts its expertise to undertake all requirements of the Order and has full notice of the purpose for which GrainCorp requires them.

2. DEFINITIONS

In these Purchase Terms:
Chain of Responsibility (CoR) means those elements of the Heavy Vehicle National Law (HVNL) relating to speed, fatigue, mass, maintenance and load securing as defined under the Heavy Vehicle National Law;

Controlled Entity means any entity subject to the control of another entity within the terms of section 50AA of the Corporations Act 2001 (Cth);
Delivery Date means the delivery date of the Goods and/or Services to the Delivery Location and delivery terms specified on the Order;
Delivery Location means the location for delivery specified on the Order;
Delivery Terms mean the relevant Incoterms 2020 (or outdated term if inadvertently used), where specified on the Order;
Goods and/or Services means the goods and/or services specified in the Order for supply by the Supplier to GrainCorp;
GrainCorp means the company from the GrainCorp Group set out in any Order or other document relating to a purchase by or on behalf of that company;

GrainCorp Group means GrainCorp Limited and each of its Controlled Entities; 

GST means goods and services tax and has the same meaning given in the GST Act;
GST Act is a reference to A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended;

Insolvent means where a party becomes insolvent, ceases to carry on business or has a receiver, administrator, liquidator, or trustee in bankruptcy appointed in respect of it or any similar event;
Intellectual Property Rights includes, but is not limited to, present and future rights in trademarks, trade names, copyright, patents, designs, business names, brands, logos, inventions, Specifications, formulations, tools, trade secrets, and know how, whether or not registered or registrable anywhere in the world;
Order means any purchase order issued by or other documents authorising purchase on behalf of GrainCorp;
Specifications means all specifications provided by GrainCorp or agreed to by the Supplier in relation to the Goods and/or Services, including those provided prior to the date of these Purchase Terms and the Order;
Supplier means the person or entity specified as the supplier on the Order, its subcontractors and agents, and any other party responsible for performing any aspect of the Order;

Supplier Code of Conduct means the document entitled “Supplier Code of Conduct” published on the GrainCorp Group’s website at <https://www.graincorp.com.au/wp-content/uploads/2021/03/Supplier-Code-of-Conduct.pdf> and as amended from time to time;
Tools means dies, tools, gauges, fixtures, drawings, printings, plates or stereos, plans, specifications and like matter either purchased outright by GrainCorp under the Order, prepared at the request of GrainCorp under the Order, or for which the cost is included in the unit cost of the Goods.

3. BASIS OF SUPPLY

Except as otherwise expressly agreed in writing signed by both the Supplier and GrainCorp, the Order is an offer, which is accepted by the Supplier upon the Supplier commencing work or supply under it or preparing for such work or supply (when communicated to GrainCorp), and constitutes the sole and exclusive agreement between the parties with respect to the Goods and/or Services. GrainCorp may adjust or cancel the Order prior to Supplier confirmation of acceptance or outside of agreed supply lead times. The Supplier will work with GrainCorp to reasonably agree any change or cancellation after Order acceptance or inside agreed supply lead times, so as to reasonably minimize costs and potential harm or loss, to both parties. No terms stated by the Supplier in accepting or acknowledging the Order has any effect without GrainCorp’s prior written consent. The Order will be void after the Delivery Date unless otherwise stated or agreed. No cancellation or variation of the Order by the Supplier will be binding on GrainCorp unless agreed in writing by GrainCorp.

4. PRICES

The prices set out in the Order are to the Delivery Location on advised Delivery Terms or if not stated, delivered duty paid (DDP) basis and fixed and firm unless otherwise indicated in the Order and include any tax (excluding GST), customs duty (and any other taxes, duties or levies) which may be payable in respect of the Order and any delivery charges, packaging, insurance, loading, unloading and storage costs. A variation to those prices will only be effective if expressly agreed to in writing by GrainCorp. If the price is not stated in the Order, it cannot be accepted by the Supplier until a price is agreed with GrainCorp and added to the Order. If the price is conditional to developing requirements these will be agreed with GrainCorp separately on a minimum price best efforts basis and the Order updated to reflect development milestones and agreed progression.

5. DELIVERY

Time is of the essence in these Purchase Terms. Goods and/or Services must be delivered to the Delivery Location on the Delivery Terms (with final freight agreed where that location is not the final destination), or if not stated, delivered duty paid (DDP) to the final destination on the Delivery Date, unless otherwise agreed in writing and, if applicable to the nature of the Goods, must be delivered on clean pallets or containers and at the correct temperature.
If at any time it appears to the Supplier that it will be unable to deliver the Goods and/or Services on or by the Delivery Date, it must immediately advise GrainCorp of the reasons for non-delivery and the proposed new delivery date. GrainCorp may (in its absolute discretion) accept, reject or negotiate the proposed new delivery date, and any agreed new delivery date will be treated as the Delivery Date. Goods and/or Services must be delivered at the time specified on the Order or, if no time is so specified, during the ordinary business hours of the Delivery Location. If the Goods and/or Services are to be imported across any jurisdiction and unless otherwise agreed in writing the Supplier is responsible for all requirements to ensure exportation and importation compliance, including but not limited to any registrations, taxes (excluding GST), duties and clearance through customs.

6. SHARED RESPONSIBILITY

GrainCorp and the Supplier have a shared responsibility to comply with the Heavy Vehicle National Law (HVNL) and Chain of Responsibility (CoR) with which the Supplier acknowledges it is fully aware, is and will remain compliant.
Nothing in these Purchase Terms or any instruction given pursuant to an Order or contract which incorporates these Purchase Terms should be understood or construed as directing or requiring that the Supplier breach its obligations under the HVNL or CoR.
If the Supplier believes that compliance with the Order or any instruction given pursuant to the Order will or may result in a breach of the HVNL or CoR, the Supplier should immediately advise GrainCorp.
If compliance with an Order or any instruction would result in a breach of the HVNL or CoR, noncompliance will not be construed as a breach of an Order or these Purchase Terms.

7. INSPECTION AND ACCEPTANCE

GrainCorp reserves the right to inspect the Goods at any time prior to delivery. GrainCorp has up to 7 days after delivery to accept the Goods, during which time it may carry out any reasonable inspection or test of the Goods. GrainCorp will not accept delivery of Goods if they are not accompanied by correct delivery dockets as specified in clause 9 on which GrainCorp’s’ Order number is quoted. The quantity of the Goods delivered will not differ from the amount stated on the Order. Where the quantity is not as stated GrainCorp at its sole discretion may either cancel the Order in whole or in part, refuse to accept any subsequent delivery of the Goods or claim damages for any costs, losses or expenses incurred by GrainCorp related to the failure to deliver the agreed quantities. GrainCorp’s acceptance of delivery does not release the Supplier from liability for faults or defects in the Goods and/or Services. The Supplier must, at the Supplier’s cost, if GrainCorp requires the Supplier to do so, promptly remove any non-conforming Goods from GrainCorp’s premises, within a mutually agreed timeframe, which will not result in removal being unreasonably delayed. The Supplier must not replace rejected goods except on written instructions from GrainCorp. GrainCorp in its sole discretion determines whether Goods and/or Services supplied are non-conforming. If the Supplier fails to remove non-conforming Goods, GrainCorp may arrange for their return and the Supplier must pay GrainCorp for all transportation charges for shipments to and from the Delivery Location, and all charges for labour, reloading, transportation and incidental expenses. GrainCorp will not be required to pay for non-conforming Goods and/or Services. Without limiting any other remedy GrainCorp may have, the Supplier must at GrainCorp’s election either:
a) promptly replace any non-conforming Goods and/or Services with Goods and/or Services which do meet the relevant standards or Specifications and which are acceptable to GrainCorp; or
b) refund to GrainCorp all money paid in respect of any rejected Goods and/or Services.

8. RISK AND TITLE IN GOODS

Subject to clause 7, property and risk in the Goods will pass to GrainCorp free of encumbrances and all other adverse interest (including any security interest as defined in the Personal Property Security Act 2009 (Cth)) on delivery to the Delivery Location.

9. PAYMENT AND DELIVERY DOCUMENTATION

a)Unless otherwise agreed in writing between the parties, GrainCorp will pay for each correctly rendered invoice or statement within 30 days from the end of the month in which the invoice is received.
b) All the Supplier’s invoices, packing slips, documents or correspondence relating to the Goods and/or Services must bear the number specified on the Order. Where specified; Goods and/or Services material numbers must be stated on all documents. All invoices must be addressed to the invoicing address specified on the Order (if any is specified) or otherwise the Delivery Location. All invoices must also contain the GrainCorp material number(s) of the Goods (if applicable), description of the Goods and/or Services, the quantity of the Goods in bulk, weight or number, the GST exclusive price, the amount of any GST charged shown as a separate item, the GST inclusive price and comply in all other respects with the GST Act.
c) Where the requirement for a certificate of analysis is specified in the Order, the Goods must be accompanied by such certificate on their delivery to GrainCorp.
d) Where the Goods are required to be accompanied by a safety data sheet (SDS), the Supplier must provide the SDS on delivery at the Delivery Location and must provide copies of the SDS to GrainCorp whenever the SDS is revised

10. WARRANTIES

a) The Supplier warrants that the Goods and/or Services:
comply with all Specifications or requirements stipulated by GrainCorp;
ii. do not infringe any Intellectual Property Rights of a third party (either in their sale or use, alone or in combination);
iii. are fit for the purpose which the Supplier has been notified GrainCorp intends to use them or which they are commonly used;
iv. correspond with any description or sample the Supplier has previously provided to GrainCorp;
v. comply with all applicable statutory, government, regulatory and administrative requirements and conditions relevant to the Goods and/or Services, including (without limitation) in relation to:
1. the safety, manufacture, packaging, packing, labelling, transportation, importation, storage, delivery and sale of the Goods;
2. the nature, substance, quality, weight and measurement of the Goods; and

1. labour and employment.
   b) The Supplier warrants that the Goods:
   i. are and will remain of good and merchantable quality and free from all defects;
   ii. are free from all encumbrances and all other interests (including any security interest as defined in the Personal Property Security Act 2009 (Cth)) and GrainCorp will enjoy quiet possession of the Goods;
   iii. where comprising food, or are to be incorporated into food products:
   1. comply in all respects with the provision of any applicable statutes, standards, rules and regulations relating to health, pure food weights and measures in either Australia or New Zealand (whichever has been advised by GrainCorp or, if neither has been advised, the country of the Delivery Location), will be fit for human consumption, are not adulterated or contaminated in any way, not comprise and are not derived from any genetically modified organisms or products (except to the extent explicitly agreed by GrainCorp);
   2. will be accompanied by details regarding exact origin of ingredients used to produce the Goods and their movements to ensure traceability and recall needs;
   3. it will use all reasonable efforts to seek independent certification that its food safety and quality management system complies with food safety laws and will provide GrainCorp with a copy of same if requested; and
   4. will have at least 85% of standard shelf life remaining on delivery to GrainCorp unless separately agreed in writing by GrainCorp.
   c) The Supplier warrants that the Services will:
   i. be performed by appropriately qualified and trained personnel;
   ii. be performed with due care and skill;
   iii. comply with the Heavy Vehicle National Law/Chain of Responsibility provisions; and
   iv. comply with all directives and orders given by GrainCorp representatives or procedures communicated by GrainCorp to the Supplier.

11. LIABILITY, INDEMNITY AND INSURANCE

a) Without limiting any of GrainCorp’s other legal rights, the Supplier indemnifies GrainCorp and its related bodies corporate, its officers, employees and agents against any loss, damage, claim, action or expense (including, without limitation, legal expenses) which GrainCorp or its related bodies corporate, officers, employees or agents suffer in connection with any of the following:
a breach of these Purchase Terms by the Supplier;
ii. any representation or warranty given by the Supplier being incorrect or misleading in any way;
iii. any product liability claim or product recall relating to the Goods;
iv. any death or injury to a person, or any loss or damage to GrainCorp real or personal property or that of a third party caused by the negligent act or omission of the Supplier or any of its employees, agents, officers or contractors;
v. any negligent act, or failure to act, by the Supplier or any of the Supplier’s employees, agents, officers or contractors; and
vi. any cross contamination, spillage, quality failure or loss of GrainCorp goods resulting from supply of faulty goods.
b) The Supplier is required to maintain at its own expense the following insurances:
i. insurance required by the Delivery Terms covering Goods in transit for their full replacement value to the Delivery Location;
ii. public liability insurance (and where relevant, product liability insurance) with coverage of not less than $10 million for any one occurrence covering the Supplier’s liability under the Order;
iii. where the Order relates to Services of a professional nature, professional indemnity insurance with coverage of no less than $5 million (unless otherwise stated on the Order) for any one claim and for a period of 7 years after the supply of such Services; and
iv. workers’ compensation insurance as required by applicable legislation.
c) This clause 10 survives termination or expiration of the Order.

12. PACKING AND CONTAINERS

GrainCorp will make no payment or deposit for packing, boxing, crating or containers for Goods unless otherwise expressly agreed by GrainCorp in the Order.

13. TOOLS

Any Tools are, and become the property of GrainCorp, unless otherwise agreed in writing by GrainCorp and are to be immediately delivered to GrainCorp on request. The Supplier may not, without first obtaining GrainCorp’s written permission, use any of the Tools to manufacture articles for any third party, notwithstanding that the Supplier ceases to manufacture the Goods, or supply the Goods to GrainCorp.

14. INTELLECTUAL PROPERTY

a) All Intellectual Property Rights owned by GrainCorp remains and will remain the property of GrainCorp.
b) If any of the Goods have been specifically designed for or requested by GrainCorp (“Custom Works”) all Intellectual Property Rights in, and relating to, the Custom Works will be GrainCorp’s property.
c) In respect of any Intellectual Property Rights in the Goods that belong to the Supplier or any third party, the Supplier grants GrainCorp a perpetual, transferable and royalty free license so that it may use the Goods as required.

15. CONFIDENTIALITY

The Supplier must treat as confidential all information which GrainCorp provides to the Supplier or which otherwise originates from GrainCorp which is of a confidential nature (including the Order and all of GrainCorp’s Intellectual Property Rights, Specifications, strategies, projects, plans and financial information) and must not, without the prior written consent of GrainCorp, disclose, use or copy (or cause or allow to be disclosed, used or copied) any of that information other than for the performance of its obligations under the Order. The obligations set out in this clause 15 survive termination or expiration of the Order.

16. GENERAL

a) The Supplier must comply with all of GrainCorp’s policies and guidelines as may be referenced in the Order or as notified to the Supplier from time to time including, but not limited to, GrainCorp’s anti-bribery and corruption policy, Supplier Code of Conduct, relevant WH&S procedures at Delivery Locations and any relevant Chain of Responsibility policy.

1. b) The Supplier must notify GrainCorp if at any time the Supplier becomes aware of any practices, used in its operations and/or supply chains, which are inconsistent with GrainCorp’s anti-bribery and corruption policy, Supplier Code of Conduct, relevant WH&S provisions at Delivery Locations or any relevant Chain of Responsibility policy.
2. c) If the Supplier:
3. is in breach of any of these Purchase Terms and fails to remedy that breach within 14 days of being notified of that breach by GrainCorp; or
4. becomes Insolvent,

GrainCorp may terminate any order or contract, with the Supplier, to which these Purchase Terms apply.
d) The Supplier must not subcontract or assign the whole or any part of its rights or obligations under the contract formed by the Order without the prior written consent of GrainCorp.
e) The Supplier is an independent contractor of GrainCorp and nothing in these Purchase Terms constitutes any partnership or other fiduciary type of relationship between the parties.
f) Without prejudice to other rights and remedies, GrainCorp may deduct from any amount which may be or become payable to the Supplier under the Order any other amount due from the Supplier to GrainCorp.
g) The non-exercise of or delay in exercising any power or right of GrainCorp does not operate as a waiver of that power or right. A power or right of GrainCorp may only be waived in writing, signed by GrainCorp.
h) Any provision of these Purchase Terms which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make the contract formed by these Purchase Terms and the Order enforceable, unless this would materially change the intended effect of the contract.
i) These Purchase Terms and the Order are governed by and are to be construed in accordance with the laws applying from time to time in the state of New South Wales and the Supplier hereby submits to the jurisdiction of the courts of New South Wales.