This Supply and Install Agreement (Terms), together with any Sales Order (defined in clause 1), set out the agreement (this ‘Agreement’) under the terms of which FreshTrack Systems Pty Ltd ABN 13 146 508 590 (FreshTrack Systems) provides Products and/or Services (defined in clause 2) to you or the company which you represent (the Client).

(a) These Terms will apply to all the Client’s dealings with FreshTrack Systems, including being incorporated in all agreements, sales orders, quotations or orders under which FreshTrack Systems is to provide products and/or services to the Client (each a Sales Order) together with any additional terms included in such Sales Order (provided such additional terms are recorded in writing).

(b) The Client will be taken to have accepted this Agreement if the Client accepts a Sales Order, or if the Client orders, accepts or pays for any products and/or services provided by FreshTrack Systems after receiving or becoming aware of this Agreement or these Terms.

(c) In the event of any inconsistency between these Terms and any Sales Order, the clauses of these Terms will prevail to the extent of such inconsistency, except that any “Special Conditions” (being terms described as such in a Sales Order) will prevail over these Client Terms to the extent of any inconsistency.

(d) The Client is responsible for confirming that the Sales Order accurately specifies (if applicable):

(i) the quantity and specifications of the Products and/or Services required; and

(ii) the agreed Fees, other rates and the Installation Commencement Date.

(e) By signing these Terms, if the signatory represents (in the execution block) that they are duly authorised by the Client to bind the Client to these terms, they warrant that they are so authorised and personally indemnify FreshTrack Systems for any loss suffered if that warranty is untrue.

(a) In consideration for the payment of the fees set out in the Sales Order (Fees), FreshTrack Systems will provide the Client with services set out in a Sales Order (Services) and/or goods set out in a Sales Order (Products).

(b) Where the context permits the terms ‘Products’ and ‘Services’ shall be interchangeable when used in this Agreement.

(c) Unless otherwise agreed, FreshTrack Systems may, in its discretion:

(i) not commence work on any Products or Services until the Client has paid any Fees or deposit payable in respect of such Products or Services; and

(ii) withhold delivery of Services until the Client has paid an invoice in respect of such Services.

(a) As part of the Services outlined in the Sales Order, FreshTrack Systems may install cloud-based traceability management software for the Client (FreshTrack Cloud).

(b) In order to use FreshTrack Cloud, the Client will be subject to additional terms & conditions accessible at: https://freshtrack.com/terms-and-conditions (FreshTrack Cloud Terms).

(c) If the Client does not agree to the FreshTrack Cloud Terms, they will be unable to use FreshTrack Cloud and may not obtain the full benefit of the Products or Services.

(d) The Client acknowledges and agrees that:

(i) failure to agree to the FreshTrack Cloud Terms may result the Client being unable to use the Products or Services; and

(ii) FreshTrack Systems will not be liable for any loss arising from the Client’s inability to use the Products or Services in the event that the Client does not accept the FreshTrack Cloud Terms.

(a) (General) The Client must provide FreshTrack Systems with all documentation, information and assistance reasonably required for FreshTrack Systems to perform the Services.

(b) (Liaison) The Client agrees to liaise with FreshTrack Systems as it reasonably requests for the purpose of enabling FreshTrack Systems to provide the Services.

(c) (Ownership) The Client warrants that it is the owner of the Site or has obtained authority from the owner/s of the Site for the Services to be performed on the Site.

(d) (Access to Site) The Client agrees to provide FreshTrack Systems with access to the Site and the Client’s personnel, to the extent reasonably required by FreshTrack Systems to perform the Services.

(e) (Permits) The Client warrants that they hold valid licences or are otherwise permitted to own and use the Products, and to have the Products installed at the Site (Permits). FreshTrack Systems reserves the right to request proof of such Permits, cancel any Sales Order in the absence of such Permits and charge administration fees if orders are placed for Products where the Client does not hold such Permits.

(f) (WH&S) The Client must ensure that the Site complies with Work Health and Safety standards and is otherwise in a suitable condition for FreshTrack Systems personnel to perform the Services.

If in performing the Services, FreshTrack Systems receives any Client Hardware:

(a) title and risk in all Client Hardware is retained at all times by the Client;

(b) FreshTrack Systems is not responsible for existing defects or deficiencies in Client Hardware and the Client accepts this risk (Client Hardware Defects);

(c) FreshTrack Systems will not be liable for any damage to or destruction of Client Hardware that arises due to Client Hardware Defects;

(d) FreshTrack Systems will not be required to investigate the suitability, quality or fitness for purpose of Client Hardware; and

(e) the Client acknowledges and agrees that where the Services include making alterations to Client Hardware could potentially cause damage to or destroy the Client Hardware.

The Client acknowledges and agrees that some or all of the FreshTrack Systems Hardware provided to the Client may have been manufactured by a third party (Third Party Hardware), and that FreshTrack Systems has only been involved in the provisioning and/or assembly of that Third Party Hardware.

(a) Delivery is to the delivery point specifically accepted by FreshTrack Systems.

(b) Any due date for delivery of the Products is an estimate only and is subject to change. FreshTrack Systems does not guarantee that the Products will be delivered within any specified period and will not be liable for any delays caused by circumstances outside of FreshTrack Systems’ control.

(a) The Client acknowledges and agrees that FreshTrack Systems may engage third parties in order to deliver the Products to the delivery point specifically accepted by FreshTrack Systems (Third Party Couriers).

(b) Third Party Courier terms apply to the delivery of the Products to the Client by Third Party Couriers. Any problems with delivery should be directed to FreshTrack Systems to troubleshoot the issue. FreshTrack Systems will endeavour to assist the Client to ensure delivery arrives. All delivery times provided to the Client are estimates only and are subject to postal delays and reasons beyond FreshTrack System’s control. FreshTrack Systems does not warrant or make any representation that the Client’s order will be delivered within the estimated due date. FreshTrack Systems will not be liable for any loss or damage suffered as a result of or in connection with late deliveries.

(c) FreshTrack Systems will endeavour to provide a delivery tracking number if this is provided to us by a Third Party Courier. However, the Client acknowledges and accepts that a tracking number will not always be provided by a Third Party Courier.

(a) If FreshTrack Systems is unable to deliver the Products by any estimated delivery date due to the Client’s breach of this Agreement, the Client’s absence or other fault of the Client, the Client will be liable for all charges and costs incurred, including but not limited to additional shipping costs, warehousing, transportation and redelivery of the Products.

(b) FreshTrack Systems may, at its discretion, deliver the Products to the Client in any number of instalments.

Unless FreshTrack Systems is delivering the Products, FreshTrack Systems shall not be liable for loss of or damage to the Products in transit and the Client must make all claims for such loss or damage against the Third Party Courier responsible for delivery. FreshTrack Systems encourages the Client to take out insurance to protect itself for loss or of damage to Products in transit.

If installation as a service by FreshTrack Systems (Installation) is included in the Sales Order, this clause 7 will apply.

FreshTrack Systems will be entitled to change the Installation Commencement Date:

(a) by giving the Client 7 days’ notice; or

(b) on the date of the installation, if lack of access or other circumstances beyond FreshTrack Systems’ control, do not permit the Services to be carried out.

On the Installation Commencement Date and during the Installation Period, the Client must:

(a) be present at the Site and, if reasonably requested by FreshTrack Systems, remain there while the installation is being carried out;

(b) provide access to all personnel, equipment and facilities reasonably required to carry out the installation;

(c) ensure that the Site is clean and ready for FreshTrack Systems to carry out the Services; and

(d) ensure that all necessary electrical connections, site survey and computer/internet network connections are available for use with the Product.

(a) If the Client is not at the Site on the Installation Commencement Date and/or the Site is not clean and ready, and/or FreshTrack Systems is unable to complete the Installation Services due to the Client’s breach of this Agreement (including any of the Installation Requirements set out at clause 7.3), the Client’s absence or other fault of the Client (Client Installation Fault), FreshTrack Systems will be entitled to charge the Client the Call-Out Charge specified in the Sales Order for each member of FreshTrack Systems’s personnel who were booked to attend the Site.

(a) The Client acknowledges the installation might occasion minor damage to the Site. Where such damage occurs, FreshTrack Systems will use its best endeavours to repair the damage however will not be liable for any minor damage or for damage arising out of any pre-existing conditions of the Site.

(b) Where the Client incurs costs repairing any damage to the Site occasioned during the installation, whether by employing third parties to conduct repairs or otherwise, FreshTrack Systems will not be liable for such costs, unless FreshTrack Systems agrees to remedy such damage in advance in writing.

(a) Until the price of Products is paid in full, title in those Products is retained by FreshTrack Systems.

(b) Risk in the Products will pass to the Client on delivery.

(c) If the Client fails to take delivery of the Products, FreshTrack Systems may, at its option, retake, keep or resell the Products provided that FreshTrack Systems provides the Client with a full refund, excluding any credit card surcharges or other transaction or administration fees (Administration Fees).

(d) If the Client does not pay for any Products on the due date for payment, the Client authorises FreshTrack Systems, its employees and agents to enter any premises occupied by the Client or any other place where the Products are located and use reasonable force to retake possession of the Products without liability for trespass or damage.

(e) FreshTrack Systems may at its option keep or resell Products retaken from the Client.

(f) If FreshTrack Systems keeps or resells Products retaken from the Client, the Client may be required to pay Administration Fees reasonably incurred by FreshTrack Systems.

(g) If the Client sells Products or sells items into which Products are incorporated before payment in full to FreshTrack Systems, the Client acknowledges that such sale is made by the Client as bailee for and on behalf of FreshTrack Systems, to hold the proceeds of sale on trust for FreshTrack Systems, in an account in the name of FreshTrack Systems, and must pay that amount to FreshTrack Systems on demand.

Where the Client considers that any Products provided by FreshTrack Systems are defective, the Client must, within a reasonable time of receiving the Products, inform FreshTrack Systems of that fact via hello+returns@freshtrack.com.

Where Products are the subject of a notice under clause 9.1:

(a) the Client must, at FreshTrack Systems’ option:

(i) leave the Products in the state and condition in which they were delivered until such time as FreshTrack Systems or its duly authorised agent has inspected the Products; or

(ii) send FreshTrack Systems photographs, descriptions or other material evidencing the defects in the Products at hello+returns@freshtrack.com;

(b) FreshTrack Systems will inspect the Products and/or evidence of defects in the Products within a reasonable time after notification by the Client; and

(c) if paragraph 9.2(a) is not complied with, the Client will be taken to have accepted the Products and FreshTrack Systems will be entitled to the price for the Products set out in any Sales Order.

FreshTrack Systems reserves the right to charge the Client a call out fee, if upon inspection of the Products in accordance with clause 9.2(a)(i), FreshTrack Systems determines that the Products are not defective in accordance with clause 9.5.

Subject to clause 16, if, upon inspection, in the reasonable opinion of FreshTrack Systems:

(a) the Products are defective; and

(b) the Products were not damaged by the Client and/or the Client did not fail to take reasonable steps to prevent the Products from becoming damaged; or

(c) the Products are otherwise not in conformity with the Sales Order, then at the discretion of the Client, FreshTrack Systems will:

(i) replace the Products or supply the equivalent of the Products;

(ii) repair the Products;

(iii) pay the Client the cost of replacing the Products or acquiring equivalent Products; or

(iv) pay the Client the cost of having the Products repaired.

If, upon inspection, in the reasonable opinion of FreshTrack Systems:

(a) the Products are not defective; or

(b) the Products are defective due to an act or omission of the Client, misuse, failure to use in accordance with the manufacturer’s instructions, or failure to take reasonable care by the Client; and

(c) the Products are otherwise in conformity with the Sales Order, FreshTrack Systems will refuse the Client’s return, the Client will be taken to have accepted the Products and FreshTrack Systems will be entitled to the price for the Products set out in any Sales Order.

Except where notice has been given in accordance with clause 9.1, acceptance of the Products is deemed for all purposes to have taken place:

(a) when the Client makes known to FreshTrack Systems that it has accepted the Products;

(b) when the Client, after delivery of the Products, does any act in relation to them which is inconsistent with FreshTrack Systems’s ownership of the Products; or

(c) upon the expiry of seven days from the date of delivery, whichever first occurs.

Products that have been subject to regular wear and tear will not be considered to be defective.

(a) All FreshTrack Systems Hardware provided by FreshTrack Systems are covered by FreshTrack Systems’ limited warranty against defects (FreshTrack Systems Warranty).

(b) For further information about the scope of the FreshTrack Systems Warranty and how to make a claim under it, please refer to the FreshTrack Systems Warranty available here: Https://freshtrack.com/warranty.

The Client must pay to FreshTrack Systems fees in the amounts and at the times set out in the Sales Order or as otherwise agreed in writing.

Unless otherwise agreed in the Sales Order:

(a) if FreshTrack Systems issues an invoice to the Client, payment must be made by the time(s) specified in such invoice; and

(b) in all other circumstances, the Client must pay for all goods and services within 2 weeks of receiving an invoice for amounts payable.

The Client must pay Fees using the Fee Payment Method specified in the Sales Order.

Unless otherwise agreed in writing:

(a) the Client will bear all travel, accommodation, office stationery, computer storage, media and related expenses reasonably incurred by FreshTrack Systems in connection with a Sales Order; and

(b) any third party costs incurred by FreshTrack Systems in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in the Sales Order.

Unless otherwise indicated, amounts stated in a Sales Order do not include GST. In relation to any GST payable for a taxable supply by FreshTrack Systems, the Client must pay the GST subject to FreshTrack Systems providing a tax invoice.

FreshTrack Systems reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).

If the Client does not pay an amount due under this Agreement on or before the date that it is due:

(a) FreshTrack Systems may seek to recover the amount due by referring the matter to debt collectors;

(b) the Client must reimburse FreshTrack Systems for any costs it incurs, including any legal costs, in recovering the amount due or enforcing any of its rights under these terms;

(c) the Client authorises FreshTrack Systems, its employees and agents to enter any premises occupied by the Client or any other place where Products are located and use reasonable force to retake possession of the Products without liability for trespass or any reasonable damage; and

(d) FreshTrack Systems retains the right, without limiting any other rights under this Agreement, to charge the Client interest at a rate of 10% per annum on the outstanding amount. However, before applying this interest, FreshTrack Systems will provide the Client with a written notice giving an additional 7 days to complete the payment. If payment is still not received by the end of this 7-day grace period, interest will accrue from the expiration of that period until the date the full payment is received by Company.

In the event that the Client and FreshTrack Systems are both parties to an Additional Agreement and the Client fails to make the required payment for the Additional Agreement, FreshTrack Systems reserves the right to:

(a) suspend the provision of Products and/or Services under this Agreement until payment is received; and

(b) suspend access to any subscriptions the Client may have with FreshTrack Systems under any Additional Agreement until payment is received.

FreshTrack Systems endeavours to ensure that the descriptions and specifications in relation to the Products on its website, quotes, solution proposals, workflow process scoping materials, other scoping materials, sales, marketing materials or in catalogues are accurate (Quotation Documents). However, photographs, drawings, illustrations, weights, dimensions and any other particulars accompanying, associated with or given in any Quotation Documents, descriptive literature or a catalogue are based on information provided by manufacturers and suppliers and, as such FreshTrack Systems does not guarantee that those descriptions and specification are accurate or free from errors or omissions, except to the extent required by applicable law. FreshTrack Systems reserves the right to make any necessary corrections to the descriptions or specifications without notice.

(a) The Client must pay additional service fees for changes to Services requested by the Client which are outside the scope set out in the relevant Sales Order (Changes).

(b) Unless otherwise agreed in writing, FreshTrack Systems may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.

(a) If FreshTrack Systems is required to acquire goods or services supplied by a third party, the Client may be subject to the terms and conditions of that third party (‘Third Party Terms’).

(b) Provided that FreshTrack Systems has notified the Client of such Third Party Terms and provided the Client with a copy of those terms, the Client agrees to any Third Party Terms applicable to any goods or services supplied by a third party that the Client or FreshTrack Systems acquires as part of providing the goods or services and FreshTrack Systems will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.

(c) The Client has the right to reject any Third Party Terms. If the Client rejects the Third Party Terms, FreshTrack Systems cannot provide the Products or Services to the Client and clause 19 will apply.

(a) Except as contemplated by this Agreement, each party must not, and must not permit any of its officers, employees, agents, contractors or related companies to, use or disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.

(b) This clause 15 does not apply to:

(i) information which is generally available to the public (other than as a result of a breach of this Agreement or another obligation of confidence);

(ii) information required to be disclosed by any law; or

(iii) information disclosed by FreshTrack Systems to its subcontractors, employees or agents for the purposes of performing the Services or its obligations under this Agreement.

(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.

(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.

(a) To the maximum extent permitted by law and subject to clause 17.1(b), the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the amount paid by the Client to FreshTrack Systems in the 6 months preceding the date of the event giving rise to the relevant liability.

(b) Clause 17.1(a) does not apply to the Client’s liability in respect of loss or damage sustained by FreshTrack Systems arising from the Client’s breach of clauses 3, 5.1, 7.3, 7.4, 8(c), 8(d), 8(g), 11 and 15.

To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with this agreement or any goods or services provided by FreshTrack Systems, except:

(a) in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or

(b) to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).

18 SUBCONTRACTING

FreshTrack Systems may subcontract any aspect of providing the Services and the Client hereby consents to such subcontracting.

Either party may terminate this agreement for convenience by providing 10 Business Days’ notice to the other party.

(a) Either party may terminate this agreement immediately by written notice if there has been a Breach of this agreement.

(b) A “Breach” of this agreement means:

(i) a party considers the other party is in breach of this agreement and notifies that other party;

(ii) the other party is given 10 Business Days to rectify the breach; and

(iii) the breach has not been rectified within 10 Business Days or another period agreed between the parties in writing.

Upon termination of this agreement, each party must:

(a) the Client must pay any outstanding Fees for Products or Services already supplied or performed up to the date of termination;

(b) return all Confidential Information and property of other parties to those respective parties;

(c) each party must immediately return to each other party, or (if requested by that party) destroy, any documents in its possession or control containing Confidential Information of the other party;

(d) no rights, liabilities or remedies of any party will be invalidated by the termination; and

(e) if the Client terminates this agreement in accordance with clause 19.1, then the Client must pay FreshTrack Systems the Termination Fee referred to in the Sales Order, this being a genuine pre-estimate of FreshTrack System’s losses.

Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this Agreement will survive and be enforceable after such termination or expiry.

(a) A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.

(b) A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.

(c) If the Client is the party claiming that a dispute has arisen, written notice must be sent the Address specified in the Sales Order.

(d) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith.

(e) If the dispute is not resolved within a period of 14 days after the date of the notice, a party may by notice to the other party or parties to the dispute refer the dispute for mediation by the Australian Disputes Centre (the ADC) in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to the ADC (Guidelines). The terms of the Guidelines are hereby deemed incorporated into this agreement.

(f) If the dispute is not resolved within 28 days after the appointment of the mediator any party may take legal proceedings to resolve the dispute.

(a) If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:

(i) reasonable details of the Force Majeure Event; and

(ii) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.

(b) Subject to compliance with clause 21(a) the relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.

(c) The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible.

(d) For the purposes of this agreement, a ‘Force Majeure Event’ means any:

(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;

(ii) strikes or other industrial action outside of the control of the Affected Party;

(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or

(iv) any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of the Affected Party, to the extent it affects the Affected Party’s ability to perform its obligations.

(a) A notice or other communication to a party under this agreement must be:

(i) in writing and in English; and

(ii) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.

(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:

(i) 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this Agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or

(ii) when replied to by the other party,

whichever is earlier.

(a) (Governing law & jurisdiction) This Agreement is governed by the law applying in Queensland, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

(b) (Assignment) A party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior consent of each other party (such consent not to be unreasonably withheld).

(c) (Relationship) The parties acknowledge and agree that:

(i) nothing contained in this Agreement creates an agency, partnership, joint venture or employment relationship between FreshTrack Systems and the Client or any of their respective employees, agents or contractors.

(ii) neither party nor any person acting on its behalf may hold itself out as being entitled to contract or accept payment in the name of or on account of the other party.

(d) (amendments) This Agreement may only be amended by a document signed by each party.

(e) (waiver) No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

(f) (further acts & documents) Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this Agreement.

(g) (entire agreement) This Agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this Agreement.

In these terms and conditions, the following words and phrases have the following meaning: