AGREEMENT FOR SUPPLY OF HEALTHY SNACKS

 
BETWEEN        SNACKWIZE PTY LTD ABN 42 619 444 236 
(“Snackwize”)
AND                 The person or entity named on the agreement
(“Customer”)
 
BACKGROUND:


A.   The Snackwize is a supplier of healthy snacks to businesses.

B.    The Customer wishes to purchase Healthy Snacks from Snackwize on the terms and conditions contained in this Agreement.

AGREEMENT:

1. Interpretation


1.1   In this Agreement (including its recitals) the following words will have the meanings assigned to them in this clause, except where inconsistent with the context:

1.1.1    Agreement means this agreement as varied from time to time;

1.1.2    Business Day means a standard business day in Queensland, Australia;   

1.1.3    Commencement Date means the date nominated as such in the Schedule;

1.1.4    Delivery Schedule means the schedule by which Snackwize agrees to supply the Customer with the Healthy Snacks, as specified in the Schedule;

1.1.5    Drop Off Location means the location specified as such in the Schedule;

1.1.6    Healthy Snacks means the snack box type specified in the Schedule;

1.1.7    Price means the means the price for each supply of Healthy Snacks by Snackwize, as set out in in the Schedule; 

1.1.8    Schedule means the Schedule to this agreement;

1.1.9    Term means the initial term of this agreement specified in Item 7.

1.2      In this Agreement unless the context otherwise requires:

1.2.1    a reference to any document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;

1.2.2    words in the singular include the plural and vice versa and words in one gender include any other gender;

1.2.3    a reference to a statute or to any statutory provision includes any statutory modification or re-enactment of it or any statutory provision substituted for it, and all ordinances, by-laws, regulations, rules and statutory (however described) issued under it;

1.2.4  a reference to any party includes its successors in title and permitted assigns, a reference to a “person” includes any individual firm, body corporate, association or partnership, government or state (whether or not having a separate legal personality), and a reference to a clause is to a clause of this Agreement;

1.2.5  the heading of clauses are for convenience only and will not affect the interpretation of this Agreement;

1.2.6 any undertaking under this Agreement not to do any act or thing will be deemed to include an undertaking not to permit or suffer the doing of that act or things; 

1.2.7  a reference to “$” or “dollar” is to the lawful currency of Australia; and

1.2.8    the word “includes” in any form is not a word of limitation.


2.   Term of Agreement

2.1  The Agreement commences on the Commencement Date and, unless terminated earlier in the manner set out in this Agreement, will continue for the Term. 

2.2   Unless a party gives written notice to the other party not less than thirty (30) days prior to the end of the Term advising that they do not wish to extend this Agreement, this Agreement will automatically be extended for a further period equal to the Term. Similarly, unless a party gives written notice to the other party not less than thirty (30) days prior to the end of that further period advising that they do not wish to extend this Agreement, this Agreement will again automatically be extended for a further period equal to the Term, and so on.

2.3   If the Agreement is renewed for an extended term, with the exception of the Price, which shall be the amount determined by Snackwize in writing taking into account any increases to its costs in performing the Agreement since the Commencement Date, the terms and conditions of this Agreement apply to any extended term.

2.4   If after the expiry of this Agreement Snackwize continues to provide Healthy Snacks to the Customer then the parties shall be deemed to be party to a monthly agreement, on the same terms as this Agreement to the extent they are capable of applying, terminable by either party by giving not less than thirty (30) days’ notice.

3.  Supply of Healthy Snacks

3.1    Snackwize will supply the Healthy Snacks to the Customer in accordance with the Delivery Schedule during the Term (and any extended term) by delivering them to the Drop Off Location.

3.2    The Customer shall ensure that Snackwize has free and clear access to the Drop Off Location at all reasonable times, to allow it to deliver the Healthy Snacks. Title to and risk in the Healthy Snacks passes to the Customer upon their delivery to the Drop Off Location.

3.3   The Customer shall be responsible for the Healthy Snacks once delivered by Snackwize. Without limiting the generality of that statement, the Customer shall be responsible for ensuring that it stores, handles and uses the Healthy Snacks in a reasonable and safe manner, including by ensuring that they are not consumed after their used by dates.

3.4   If for any reason Snackwize is unable to deliver Healthy Snacks as required by this Agreement, Snackwize must notify the Customer in writing that fact and specify a new date for delivery. Except where the delay in delivery is caused or contributed to by the Customer, if the new date for delivery is unacceptable to the Customer they may at their sole discretion terminate the particular delivery of Healthy Snacks and claim a refund or credit for that failed delivery.

3.5  Except for the refund or credit referred to in clause 3.4, Snackwize will not be liable to the Customer for any cost, loss or expense incurred by the Customer in circumstances dealt with in clause 3.4.

4.  Price and Payment

4.1 The Customer must pay to Snackwize the Price for the supply of Healthy Snacks during the Term (and any extended term). The Customer will be invoiced by Snackwize fortnightly or monthly, at Snackwize’s election, and will pay any invoice rendered within 7 days of receipt.

4.2  The Customer may pay invoices rendered by Snackwize either by:

4.2.1  providing Snackwize with credit-card or debit-card details and authorising Snackwize to use those details to debit the card for any amount owed; or

4.2.2   paying invoices by direct deposit into the bank account of Snackwize notified to the Customer from time to time. Should the Customer elect to use this method of payment, Snackwize may issue invoices to the Customer up to 30 days in advance.

4.3  The Customer must pay to Snackwize the amount invoiced by it, free of any set-off, counterclaim, cross-demand or deduction whatever.

4.4  If the Customer fails to pay any amount due under this Agreement, Snackwize shall be entitled to charge interest on the amount overdue from time to time at the rate of 12% per annum.

5.  GST

5.1 Terms used in this clause 5 have the same meaning as those terms in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

5.2  If the supply of Healthy Snacks under this Agreement is subject to GST the Customer must pay Snackwize the Price plus an amount equal to the GST payable on the supply (unless the Price is expressly stated as being inclusive of GST). 

5.3   The Customer must pay the additional amount payable under clause 5.2 on the same date as the Price is payable provided that no payment is required under this clause or clause 5.2 until Snackwize has issued the Customer with a tax invoice in respect of the relevant supply. 

5.4   Snackwize must issue a tax invoice in the format required by the law to the Customer for the supply. The tax invoice must set out the amount of the GST payable by the Customer.

5.5   Snackwize warrants that it is registered with an Australian Business Number and for GST purposes at each time a taxable supply is made.

6.   Indemnity
 The Customer indemnifies Snackwize against any claims, loss, damage, cost (including legal costs on a full indemnity basis), expense or liability arising out of the breach or non-performance by the Customer of any obligation under this Agreement.
 
7.   Confidential Information
7.1   Neither Party will use information contained in this Agreement, exchanged in prior negotiations or any tender process for any purpose not contemplated by this Agreement. Each Party must, and must ensure that its employees, agents and subcontractors who need such access in order to perform their duties, receive this information under obligations of confidentiality. 
 
7.2  Clause 7.1 does not apply to the extent that:
 
7.2.1  either Party is required by law to disclose the information;
 
7.2.2  the information is public knowledge (and has not become public knowledge as a result of either party’s breach of confidentiality); or
 
7.2.3  the information was independently created by a Party (and that Party has evidence in writing that the information falls within this exception).
 
8.  Assignment
 
The Customer may not assign this Agreement or any of its rights or obligations under it without the prior written consent of Snackwize.
 
9.  Costs
 
Each party will bear their own costs of and incidental to the negotiation, any variation and execution of this Agreement. 
 
10. Termination
 
10.1  Snackwize may terminate this Agreement without cause with 7 days’ written notice.
 
10.2   Snackwize may terminate this Agreement immediately with written notice to the Customer if:
 
10.2.1  for any reason the Customer is no longer able to perform its obligations under this Agreement;
 
10.2.2   the Customer becomes insolvent or goes into administration, receivership or liquidation or enters into any arrangement or composition with its creditors or any action is taken for the appointment of an administrator or official manager or receiver of the assets of the Customer; or 
 
10.2.3  the Customer ceases or threatens to cease carrying on business.
 
10.3    The Customer may terminate this Agreement immediately on written notice to Snackwize if:
 
10.3.1 Snackwize commits a breach of any of its obligations under this Agreement, and such breach is not remedied (if capable of remedy) within thirty (30) days of notice in writing from the Customer requiring that such breach be remedied; 
 
10.3.2  Snackwize becomes insolvent or goes into administration, receivership or liquidation or enters into any arrangement or composition with its creditors or any action is taken for the appointment of an administrator or official manager or receiver of the assets of Snackwize.
 
10.4 Termination of this Agreement is without prejudice to any accrued rights of either party as at the date of termination.


11.  Entire Agreement
 
This Agreement constitutes the entire agreement between the Parties concerning the subject matter of this Agreement and supersedes all prior negotiations, arrangements, agreements and understandings, either oral or written, between the Parties.
 
12. Variation
 
This Agreement may be modified only in writing, signed by the authorised signatories of each Party. 
 
13. Governing Law and Jurisdiction
 
This Agreement is governed by the laws of the State of Queensland and the Commonwealth of Australia. Each Party submits to the exclusive jurisdiction of the courts of Queensland and of the Commonwealth of Australia.
 
14. Partial Invalidity 
 
In the event of the invalidity of any part or provision of this Agreement, the invalid part or provision will be severed and such invalidity must not affect the enforceability of any other part or provision of this Agreement.
 
15. Survival
 
Clauses 6 (Indemnity) and 7 (Confidential Information) survive the expiration and termination of this Agreement.
 
16. Waiver
 
A Party’s failure to exercise or delay in exercising a right or power does not operate as a waiver of that right or power and does not preclude the future exercise of that right or power.
 
17. Counterparts
 
This Agreement may be executed in counterparts and these counterparts may be distributed by electronic means.
 
18. Notices
 
18.1 All notices permitted or required to be given under this Agreement must be in writing.
 
18.2  A notice may be delivered to a party by hand, by pre-paid ordinary post, by facsimile or by email to that party’s address shown in he Schedule or to the alternate address notified to the party giving the notice.
 
18.3  A notice will be taken to be duly given and received:
 
18.3.1 if delivered by hand, when delivered, unless delivered after 5pm on a business day or on a day which is not a business day, in which case it will be deemed to have been given and received on the next business day;
 
18.3.2  if delivered by pre-paid ordinary post, on the second business day after posting;
 
18.3.3  if delivered by facsimile, upon completion of transmission and receipt by the sender of the appropriate transmission report;
 
18.3.4  if delivered by email, upon sending unless the sender receives notice that the delivery of the email has failed.