Terms of Trade

DEFINITIONS

In these Terms of Trade certain defined terms are used which have the meanings set out in the Dictionary in clause 20.
Words used in these Terms of Trade, which are defined in the Code, have the meanings set out in the Code.

TERMS AND CONDITIONS

General

1. These Terms of Trade (Terms) have effect from the Effective Date and shall apply to all transactions between ProFruit and a Grower unless these Terms are replaced by another set of Terms at a later date.
2. These Terms only apply to Produce that is ready and available for resale to a third party. Any Produce that requires any additional services by ProFruit to ensure that the Produce is ready and available for resale to a third party, such as ripening, storing, repacking or sorting, will be subject to a service agreement that is separate to these Terms.
3. ProFruit may sell, dispose of, or otherwise deal with Produce purchased from any Grower at the discretion of ProFruit.

Specific Code Requirements

4. ProFruit specifies that:
   1. Acceptance: The Produce is accepted by ProFruit at the later of:
      1. the time at which any Produce in the possession of ProFruit, in the opinion of ProFruit, is ready and available for sale; and
      2. the time at which ProFruit and the Grower agree upon the price, in writing.
   2. Quality:Unless it is otherwise agreed in writing, all Produce intended by the Grower to be the subject of a horticulture produce agreement (“Subject Produce”) must meet the specifications known as the FreshSpecs Produce Specifications available at www.freshmarkets.com.au/FreshSpec/freshspecs.html. A Grower must ensure that Subject Produce complies with those specifications. The fact that any Produce meets those specifications does not create any obligation on the part of ProFruit to buy any Produce. Subject Produce that meets those specifications is “Complying Produce”.
   3. Rejection:ProFruit may reject any Produce of the Grower at any time in the period after it is received and prior to the time it is accepted if ProFruit determines, in ProFruit’s discretion, for any reason, that the Produce is not saleable at a reasonable price and must immediately notify the Grower of the rejection, by phone, fax, email or other electronic means of ProFruit making that determination. Within a reasonable time period after notice of the rejection of the Produce, the Grower must remove the Produce from ProFruit’s premises in accordance with the directions of ProFruit. A written notice of the rejection will be provided by ProFruit within two (2) Business Days of making the determination.
   4. Time for Payment:ProFruit agrees to make payment to the Grower of the agreed prices for Produce within the payment period detailed in the horticulture produce agreement between the parties. All payments must be made in accordance with these Terms of Trade.
   5. Insurance:Details of insurance (if any) for Produce held by ProFruit is set out in the Schedule to this document.

ProFruit Payments and Obligations

5. Payments to a Grower for Produce will be made by cheque or direct bank deposit to the credit of the Grower as specified in writing by the Grower.
6. ProFruit is authorised to deduct from the payment of any monies from time to time due to the Grower:
   1. Any payments made by ProFruit, to a third party, at the request of the Grower where ProFruit has agreed to make such payments (eg. transport/unloading/packaging);
   2. Levies and fees for services payable to a third party under Statute or any voluntary arrangement; and
   3. Any monies due by the Grower to ProFruit on any other account.
7. In addition to information to be provided under the horticulture produce agreement between ProFruit and any Grower ProFruit will provide the following details in respect of payments made to the Grower –
   1. Grower’s reference or shipping note number;
   2. Description of the Produce purchased;
   3. Details of any non-complying Produce that is disposed of, or otherwise dealt with, in accordance with these Terms;
   4. A copy of any relevant Inspection Certificate;
   5. Details of all levies, fees, and taxes deducted from the Grower.
8. ProFruit will issue a Tax Invoice to the Grower in respect of any item for which Goods and Services Tax is chargeable
9. ProFruit agrees to implement and maintain an industry recognised HACCP based food safety and quality system that is subject to an annual third party audit.

ProFruit Payments and Obligations

10. The Grower agrees to provide documentation that is suitable to ProFruit that accurately describes the quantity, variety, size, class, description, and characteristics of the Produce, including containers, prior to despatch to ProFruit.
11. The Grower warrants that Produce despatched to ProFruit will be fit for human consumption and comply with all requirements of any relevant Statute including requirements with respect to food safety, packaging, and/or labelling.
12. The Grower warrants that all Produce despatched to ProFruit complies with any written product specification, including quality and shelf life, issued by ProFruit. Unless advised to the contrary, the product specifications issued by ProFruit include the FreshSpecs Produce Specifications available at www.freshmarkets.com.au/FreshSpec/freshspecs.html
13. The Grower must implement and maintain an industry recognised HACCP based food safety and quality system that is subject to an annual third party audit. Copies of any current certification must be sent to ProFruit upon request.
14. The Grower must supply details of its registered Australian Business Number (ABN) prior to, or at the time of, the despatch of Produce to ProFruit.

Complying and Non-Complying Produce

15. Produce, which does not comply with clauses 10, 11 and 12 of these Terms of Trade, is non-complying Produce.
16. Where Produce is non-complying Produce ProFruit may deal with that Produce in the manner, and on the terms, agreed with the Grower:
17. The Grower authorises ProFruit to destroy or dispose of any non-complying Produce and any Produce which is rejected by ProFruit and is not removed by the Grower, within a reasonable time period, in accordance with paragraph 4(c) hereof in such a way as ProFruit determines is appropriate.
18. Where clause 17 applies any destruction and/or disposal of Produce is at the Grower’s expense and may be deducted from any amounts payable by ProFruit to the Grower.
19. The Grower agrees that any claims for credit which result following the sale of the Produce by ProFruit to a third party, in respect of non-complying Produce may be deducted from the amounts payable by ProFruit to the Grower subject to ProFruit notifying the Grower.

Dictionary

20. In this Agreement:
    1. “Business Day” means a day which is not a Saturday, Sunday, public holiday, or Markets holiday, in the Relevant State;
    2. “Grower” means a person who grows his or her own horticulture Produce for sale and who is subject to the Code.
    3. “Inspection Certificate” shall mean a report prepared by an independent authority or third party assessor who is qualified by experience and/or education to declare Produce unfit for human consumption, unsuitable for sale or not meeting a particular specification or standard.
    4. “in writing” means by letter, fax or email;
    5. “Produce” means horticulture produce;
    6. “Statute” means any Act of Parliament, and any regulations, orders, by laws, instruments made under or pursuant to any Act of Parliament and any other subordinated legislation of any kind; and
    7. “Week” means the period commencing on a Saturday and ending on a Friday (inclusive).k

SCHEDULE

Particulars of Insurances: