Terms & Conditions

These Terms and Conditions shall apply to any provision of Goods and/or Services to Gruma Oceania Pty Ltd (A.B.N. 35 117 976 002) (hereinafter referred to as ‘‘Gruma’’) by a Supplier who received, accessed, or viewed a copy of these Terms and Conditions (including an electronic copy provided by email or website) and has thereafter supplied Goods or provided Services to Gruma, or who entered into the Master Agreement and or a Supply Agreement.

In the event that Buyer and Supplier have entered into a Supply Agreement, these Terms and Conditions shall apply as a supplement to such Supply Agreement, only to the extent of the subjects not covered by such Supply Agreement.

Except for any particular arrangement contained in a Supply Agreement between Gruma and Supplier, these Terms and Conditions apply only to an individual order and supply of Goods or provision of Services between Gruma and Supplier, and must not be construed as conferring an ongoing relationship or term contract between Supplier and Gruma.

Gruma has no obligation to place Purchase Orders or Work Orders, as it may apply, with the Supplier and Supplier has no exclusivity rights to supply Goods or provide Services to Gruma.

SECTION I

DEFINITIONS

1.1. DEFINITIONS AND INTERPRETATION.-

‘Bribery Legislation'’ means all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption, including but limited to, the United States of America Federal Corrupt Practices Act and the Australian Criminal Code Act 1995 (Cth), and any applicable local, national or international anti-bribery or anti-corruption law, convention or legislation.

‘Buyer’ means Gruma or any of its divisions, subsidiaries, affiliates, holding companies or joint ventures throughout the world.

‘Confidential Information’ means, except as otherwise provided for herein, all information provided from one Party to the other, including these Terms and Conditions. However, Confidential Information does not include information which (i) is in the public domain prior to the date of its disclosure by the disclosing Party to the receiving Party, (ii) is known and can be shown to be known by the receiving Party prior to the date of its disclosure by the disclosing Party to the receiving Party, (iii) becomes a part of public domain by publication or otherwise not as the result of any unauthorized act or omission on the part of the receiving Party, (iv) can be demonstrated to have been supplied to receiving Party by a third party who is under no obligation to the disclosing Party to maintain such information in confidence, or (v) is independently developed by the receiving Party without the use of the Confidential Information.

‘Force Majeure Event’ means a fire, flood, earthquake, explosion, epidemic, tornado, or other significant natural disaster or an act of terrorism. No other event is considered a Force Majeure Event, even if outside of the control of the Parties.

‘Goods’ means those Goods the subject of a Purchase Order submitted by Buyer to the Supplier and supplied by the Supplier to Buyer.

‘Master Agreement’ means the Master Supply Agreement for Goods and Services that is executed by and between Buyer and Supplier and which incorporates these Terms and Conditions.

‘Modern Slavery’ means the conduct described in the definition of “modern slavery” in section 4 of the Modern Slavery Act 2018 (Cth).

‘Modern Slavery Laws’ means the Modern Slavery Act 2018 (NSW), or the Modern Slavery Act 2018 (Cth), whichever are applicable to the Supplier.

‘Parties’ means Supplier and Buyer collectively.

‘Party’ means either Supplier or Buyer individually.

‘Price’ except where further qualified by these Terms and Conditions, means the price stated in the corresponding Purchase Order or Work Order, as placed by Buyer.

‘Purchase Order’ means a purchase order, email correspondence, electronic data interchange, or other communication submitted by Buyer to Supplier requiring that Supplier deliver to Buyer certain described Goods.

‘Services’ means those Services the subject of a Work Order submitted by Buyer to the Supplier and provided by the Supplier to Buyer.

‘Specifications’ means, in connection with the supply of Goods, the product specifications applicable to the Goods, which may be set forth in one or more proposals, quality assurance presentations, diagrams, or Purchase Orders. In connection with the provision of Services, it means the specifications applicable to the Services, which may be set forth in one or more proposals, quality assurance presentations, diagrams, or Work Orders. In the event that the Parties fail to provide Specifications, industry standards will be used.

‘Supplier’ means the Supplier as defined in a Purchase Order or Work Order.

‘Supplier-Caused Regulatory Action’ has the meaning given in clause 2.6. of these Terms and Conditions.

‘Supply Agreement’ means any written agreement for the supply of Goods or Services by Supplier to Buyer that is executed by and between Buyer and the Supplier.

‘Terms and Conditions’ means these Terms and Conditions for Suppliers.

‘Work Order’ means a work order, scope of services, scope of work, e-mail correspondence or other communication requiring or requesting that Supplier provide Services to Buyer.

‘Work Product’ means any deliverables, designs, results, technical information, recipes, formulas, drawings, source codes or other materials created by or for Supplier in connection with the Goods or Services, at or in response to Buyer’ request, not including Supplier’s pre-existing Confidential Information and intellectual property.

In these Terms and Conditions unless the context otherwise requires:

1. a reference to these Terms and Conditions means these Terms and Conditions as amended, novated, supplemented, varied or replaced from time to time;
2. masculine gender will include the feminine gender;
3. where a word or an expression is defined, any other part of speech or grammatical form of that word or expression has a corresponding meaning;
4. words in the singular include the plural and vice-versa;
5. a reference to a ‘day’, ‘month’, ‘quarter’ or ‘year’ is a reference to a calendar day, calendar month, a calendar quarter or calendar year;
6. the headings will not affect the interpretation or construction of these Terms and Conditions;
7. reference to any statute will mean that statute as amended, modified or replaced from time to time and includes orders, ordinances, regulations and rules and by-laws made in terms of or pursuant to the relevant legislation;
8. reference to a Party or Parties includes a reference to its successors and permitted assigns in accordance with this Contract; and
9. ‘including’ means ‘including (without limitation)’.
   
   

SECTION II

SUPPLY OF GOODS

2.1. PURCHASE ORDERS.- From time to time, after relevant discussions or negotiations, Buyer may submit to Supplier a Purchase Order for the supply of Goods, or Buyer may submit a floor stock Purchase Order setting forth a minimum and maximum volume of Goods which Supplier will maintain in its possession for the period stated therein, for the account of Buyer. Following receipt of a floor stock Purchase Order, a certain quantity of the Goods must be released and delivered to Buyer pursuant to its submission of individual call-off Purchase Orders, each setting forth the portion of the Goods to be delivered.

Buyer may change any of the terms in a Purchase Order or the Specifications by a written change order. Should such change result in any documented cost differential, the Parties will mutually agree to the applicable price adjustment. Any forecasted volumes are estimates only and not volume commitments of Buyer.

Following the relevant discussions or negotiations between Buyer and Supplier, Purchase Orders will be binding upon Supplier at the moment of receipt and must be complied with on the date set forth on the corresponding Purchase Order.

Supplier must make available for purchase by Buyer the volume of Goods stated in each Purchase Order.

Buyer has no obligation to submit Purchase Orders to Supplier, which will be submitted at Buyer’s sole discretion.

2.2. DELIVERY AND PROPERTY.- Except to the extent otherwise agreed in writing between the Parties from time to time, Supplier must deliver the Goods to Buyer on the date set forth on the corresponding Purchase Order (i) DDP at Buyer’s facilities in 49 Gateway Boulevard, Epping, VIC 3076 for Goods sourced from within Australia or (ii) CIF Melbourne, Victoria for Goods sourced from outside Australia. Risk and title to the Goods will pass to Buyer according to the applicable incoterm as defined under “Incoterms 2010”.

Supplier must ship the Goods in accordance with Buyer's written shipping specifications, including but not limited to packaging standards, pallet dimensions, and bar code label standards, using, if requested by Buyer, a shipper named by Buyer. If no shipping specifications are provided by Buyer, Supplier must use best commercial practices for packaging, shipping and handling.

In the event of a late delivery (other than for delays caused by Buyer), in addition to any other remedies available to Buyer, Buyer may require that Supplier ship the Goods in an expedited manner at Supplier’s expense, or Buyer may cancel Purchase Order without further obligations to Supplier. Any Supplier sourcing or manufacturing problems that may impact the delivery date must be reported in writing to Buyer immediately.

Supplier will be responsible for any additional charges, including but not limited to freight charges, incurred due to any failure by Supplier to comply with these Terms and Conditions or the shipment instructions provided by Buyer.

Supplier must provide Buyer any document reasonably required by Buyer, including without limitation transportation documents, bills of lading, certificates of origin, material safety data sheets, and quality management documents.

2.3. SAMPLES.-The Supplier, at its own risk and cost, will manufacture the samples requested from time to time for approval or rejection by Buyer.

Furthermore, Supplier must collect and retain, for a reasonable period not less than its shelf life, samples of each batch of Goods and every raw material used to produce such Goods. Upon request by Buyer, Supplier will provide the samples to Buyer.

2.4. QUALITY CONTROL.-

1. Specifications. Supplier must supply the Goods using the highest quality ingredients or materials and comply with the applicable Specifications.

2. Storage. Supplier must store all raw materials, ingredients, packaging materials, in-process Goods, and finished Goods in a clean, dry area, free from insects, rodents, and cross contamination, at such temperature and in such a manner as to prevent entry of foreign materials, contamination, spoilage, reduced shelf life or adulteration. Storage and handling must be strictly in accordance with the applicable Specifications, industry standards, all applicable laws, and any reasonable written instructions issued by Buyer, and in the event that no specifications were provided by Buyer, Supplier must follow the best practices for such purpose.

3. Quality of Materials. Supplier must maintain the integrity of the Goods and, upon request, must provide Buyer sufficient information (including but not limited to batch reports, quality assurance reports, site audit reports, and certificates of analysis) to monitor integrity and safety of the Goods.
   
   Third party laboratory testing must be performed before shipment of Goods if determined by Supplier or Buyer to be reasonably required. All such testing is at Supplier's expense. All test results must be documented by Supplier and copies provided to Buyer upon request.

4. Production Quality. Supplier will perform all in-process and finished product checks necessary to assure the highest quality, identity, and function of the Goods, including routine testing of shipping and storage environmental conditions. These tests must be undertaken as a routine part of the manufacturing process, the cost of which is included in the Price payable by Buyer. All test results must be documented by Supplier with copies provided to Buyer upon request.

5. Release of the Goods. Supplier must not release Goods for shipment unless the Goods comply with the Specifications provided by Buyer, all applicable laws, rules, and regulations, and these Terms and Conditions. Supplier must place any non-complying Goods on hold, notify Buyer immediately of the non-compliance, and only release the non-complying Goods with the prior approval of Buyer.

2.5. INSPECTIONS.- Buyer, or a third party inspection firm designated by Buyer, has the right (but not the obligation) to inspect, without prior notice and during normal business hours, (i) the plant and manufacturing facilities where the Goods are produced, (ii) all of the Supplier's facilities and equipment relating to manufacture, storage, and delivery of the Goods, and (iii) the Goods (prior to their shipment), to assure Supplier’s compliance with these Terms and Conditions.

Additionally, Buyer requires that all of the facilities referred to in clause (i) and (ii) above be inspected on an annual basis, at Supplier’s sole cost and expense, by a third party inspection firm approved by Buyer. All auditing systems recognized by the Global Food Safety Initiative (GFSI) are acceptable to Buyer. The annual inspection results must show that each such facility has obtained a score of 90% or greater. The results must be sent to Buyer’s quality assurance department, together with a corrective action plan in the event the results disclose a score under 90%. Acceptance of the corrective action plan is at the sole discretion of Buyer.

If evidence of potential food safety hazards or non-compliance with the Specifications and/or these Terms and Conditions is found during any inspection, Supplier agrees to pay the cost of subsequent inspections (in addition to the annual inspection) of Supplier’s premises, facilities, equipment or the Goods. Any failure of Buyer to inspect Supplier's facilities will not constitute a waiver of Buyer’s inspection rights or Buyer’s remedies with respect to Supplier's obligations to provide the Goods in compliance with these Terms and Conditions.

2.6. REGULATORY ACTION.-

1. In the event of a recall or market withdrawal of all or a portion of Goods for any reason, reasonably determined by Buyer to be resulting in whole or in part, based on available facts and information, from the fault or negligence of Supplier (hereinafter a “Supplier-caused Regulatory Action”), Supplier agrees to diligently comply with the product recall or market withdrawal procedures established by Supplier. Supplier will submit to Buyer’s quality assurance department a list of persons (and related contact information) available on a twenty-four hour/seven-day basis for purposes of coordinating any Supplier-Caused Regulatory Action. Supplier must bear and reimburse all costs and expenses incurred by Buyer or its affiliates in complying with a Supplier-Caused Regulatory Action, including without limitation replacement of recalled or withdrawn Goods, freight and service charges, reasonable attorney fees, and any laboratory testing fees and costs. In the event Supplier fails or refuses to comply with the product recall or market withdrawal procedures established by Supplier, or if Buyer reasonably determines that Supplier’s recall or withdrawal procedures are inadequate, Buyer may take such action as it deems necessary to recall or withdraw the applicable Goods, and Supplier must reimburse Buyer for its costs and expenses incurred. Any reimbursement is in addition to, and not in lieu of, any other amounts Buyer is entitled to recover from Supplier under these Terms and Conditions or the law.

2. Supplier must immediately notify Buyer in the event of a Supplier-Caused Regulatory Action. Furthermore, Supplier must immediately notify Buyer when any federal, state, or local authority makes an inspection or inquiry, either directly or indirectly, regarding the Goods, seizes any Goods, or otherwise directs Supplier to take or cease taking any action in connection to the Goods. Duplicates of any samples of Goods taken by such agency must be sent to Buyer promptly. Supplier will provide to Buyer copies of any and all communications to or from such federal, state, or local authority that relate in any way to the Goods as such communications are sent or received.

2.7. WARRANTIES (GOODS).- In addition to any other representations or warranties set forth hereunder, any other implied warranty under applicable law, and any other warranties made by Supplier, either expressed or implied, Supplier warrants that upon delivery:

1. the Goods are not subject to any lien or restriction on sale, transfer, or otherwise, and Supplier has the unlimited authority to sell and deliver unencumbered title to the Goods to Buyer;

2. the Goods will comply strictly with the conditions of quality and Specifications as requested by Buyer;

3. the Goods will be fit for the purpose intended;

4. the Goods will be manufactured in accordance with the Specifications provided by Buyer;

5. the Goods will be of merchantability quality, fit for human consumption and free from defects in material and workmanship;

6. the Goods, as well as all aspects of its business, including its performance under these Terms and Conditions, will comply with all applicable federal, state and local laws, regulations and regulatory and governmental requirements; and

7. all Goods delivered under any and all purchase orders will remain in saleable condition through the code dates (shelf life) imprinted thereon.

Buyer has the right to inspect the delivered Goods when and as it deems appropriate and to reject acceptance of any or all of the Goods which do not conform in any degree to the Specifications provided or are defective. Any quantities delivered in excess of a Purchase Order by Supplier may be rejected as non-conforming.

The rejected Goods will be returned to the Supplier at the Supplier’s own cost, in which case Buyer may retain payment until the Supplier strictly complies with the Specifications of the corresponding Purchase Order. Rejected Goods may be disposed of in a manner consistent with the law and as approved by the Parties. Supplier’s approval for disposal must be provided within 5 business days after the Buyer’s request, and will not be unreasonably withheld. Nevertheless, if the rejected Goods are contaminated or hazardous, Buyer, in its sole discretion, may dispose of the Goods without the approval of Supplier. The Supplier agrees to reimburse Buyer any amounts incurred by Buyer in the process of rejecting, retaining or correcting the Goods, in case of failures or defects that prevent their normal use.

Buyer’s remedies set forth below are cumulative. Therefore, for any breach by Supplier of these warranties, Buyer retains all rights and remedies available under applicable law, including but not limited to the following:

1. the replacement of any non-conforming Goods;

2. credit for the Price payable for the Goods;

3. reimbursement of payment made by Buyer for the Goods under the Purchase Order;

4. payment of losses and damages pursuant to the indemnity clause contained in these Terms and Conditions; and/or

5. any other remedies requested by Buyer at the time of the breach or that are agreed upon by the Parties in the future.

SECTION III

PROVISION OF SERVICES

3.1. WORK ORDERS.- From time to time, after relevant discussions or negotiations, Buyer may submit to Supplier a Work Order requiring or requesting that Supplier provide the Services to Buyer described in such Work Order.

Buyer may change any of the terms in a Work Order or the Specifications by a written change order. Should such change result in any documented cost differential, the Parties will mutually agree to the applicable price adjustment. Any forecasted Service volumes are estimates only and not volume commitments of Buyer.

Following the relevant discussions or negotiations between Buyer and Supplier, Work Orders will be binding upon Supplier at the moment of receipt and must be complied with on the date set forth on the corresponding Work Order.

Buyer has no obligation to submit Work Orders to Supplier, which will be submitted at Buyer’s sole discretion.

3.2. SUSPENSION OF SERVICES.- Buyer may suspend Supplier’s performance of the Services from time to time in whole or in part, without cause, and for Buyer's own convenience. Any such suspension is effective upon delivery to Supplier of a written “Notice of Suspension” specifying which portion of the Services is suspended and when the suspension is effective.

3.3. WARRANITIES (SERVICES).- In addition to any other representations or warranties set forth hereunder, any other implied warranty under applicable law, and any other warranties made by Supplier, either expressed or implied, Supplier represents and warrants that:

1. The Services will (i) comply with the description of the Services set forth in the corresponding Work Order and the Specifications, (ii) be performed by qualified workers, legally authorized to work for Supplier, using commercially reasonable skill and care; and (iv) be of quality conforming to generally accepted industry standards.
   
   Except as otherwise agreed to by the Parties or any longer period of time established under applicable law, Supplier guarantees all Services (materials and workmanship) for one year from the date of completion of the Services.

2. Any Work Product resulting from the Services (i) is the property of Buyer and not subject to any lien or restriction on sale, transfer, or otherwise, and Supplier has the unlimited authority to produce the Work Product for Buyer; (ii) is of the highest quality; (iii) is merchantable and fit for the purpose intended; (iv) complies with all applicable federal, state, or municipal laws and regulations; (v) does not, and will not, violate or infringe the intellectual property rights, or any other rights, of any third party; (vi) strictly conforms with the Specifications therefor; (vii) is free of defects in materials and workmanship; (viii) if likely to come into contact with any food item, is free from any poisonous or deleterious substance which may render food products injurious to health or may cause food products to be adulterated within the provisions of applicable federal, state, or local laws. In the event that the Parties fail to adopt a clear description of the Services or Specifications therefor, the Supplier will be deemed to warrant that the Services comply with applicable industry standards.

3.4. NONCONFORMING SERVICES.- Buyer has the absolute right to perform inspections during or after the provision of the Services by Supplier and/or of any Work Product when and as Buyer deems appropriate and to reject any or all Services or Work Product which are defective or inadequate in Buyer's judgment. Buyer has no payment obligation with respect to any Services or Work Product that do not comply with these Terms and Conditions or the corresponding Specifications.

In the event any Services or Work Product are rejected by Buyer, Supplier must, at Buyer's option, (i) perform replacement Services as soon as possible in a manner which fully complies with the applicable Specifications, or (ii) within five (5) days of Buyer’s request, issue a credit or refund (as applicable, and in Buyer's sole discretion) to Buyer. In addition, within five (5) days of Buyer’s demand therefor, Supplier must refund Buyer the reasonable expenses of any testing, surveying, or inspecting of any nonconforming Services or Work Product incurred by Buyer.

SECTION IV

GENERAL TERMS

4.1. CHANGES.- Buyer may at any time modify the Specifications of the Goods or Services and must notify the Supplier in writing within two days after doing so, in order for the Supplier to comply with the new Specifications.

The Supplier is not authorized to make any changes in the design and/or Specifications of the Goods or Services without prior written authorization by Buyer. The Supplier will immediately proceed with the changed Specifications upon receiving orders from Buyer.

4.2. PRICES.- The total Price payable by Buyer for the Goods or Services is the Price set out in the corresponding Purchase Order or Work Order, as applicable. Unless otherwise specified in the Purchase Order or Work Order, the Price for the Goods or Services will include all taxes and other charges, including but not limited to, shipping and delivery charges, customs, tariffs, imposts and any government-imposed surcharges. Supplier will have to break down from the Price all taxes and charges in its invoices. No extra charges will be accepted by Buyer.

Any Prices set forth in a Purchase Order or Work Order accepted by Supplier shall be firm and binding pursuant to clauses 2.1. and 3.1. above and are not subject to change unless agreed in writing by Buyer.

4.3. PAYMENT.- Unless otherwise agreed in writing by both Parties, invoices submitted to Buyer hereunder are payable within 30 days after the end of the month in which the invoice is issued; payment will be done within 7 days from such due date, through electronic funds transfer to the account indicated by the Supplier, who must provide all data and information required to Buyer before Buyer's obligation to make payment arises, failing which, Buyer will retain payment until obtaining the necessary information to carry out the electronic funds transfer. All invoices will be paid in lawful currency of Australia.

Payment of an invoice will not constitute acceptance of the Goods or Services. Buyer will not have any obligation to pay for Goods or Services delivered in excess of its corresponding Purchase Order or Work Order. Any invoices disputed by Buyer will not be payable until such dispute has been completely resolved and must be paid within 30 days of resolution.

In the event Buyer makes an advance payment, down payment, or any other sum for prepayment of the Goods or Services, to Supplier, Supplier agrees to provide Buyer, upon request, a guaranty, bond, or standby letter of credit in the same amount, in terms satisfactory to Buyer, securing performance of Supplier’s obligations.

4.4. INSURANCE.- The Supplier must maintain at all times a commercial general liability insurance policy with a first level insurance company acceptable to Buyer, including product liability coverage and contractual liability coverage insuring against the liabilities assumed hereunder, in minimum amounts of $5,000,000.00 per occurrence for bodily injury and property damage and $5,000,000.00 general aggregate, which must also cover liability arising from premises, operations, products-completed operations, personal and advertising injury, and liability assumed under an insured contract.

All insurance policies required hereunder must irrevocably name Gruma Oceania, Pty. Ltd. as additional insured on a primary and noncontributory basis and, upon placement of the first Purchase Order or Work Order by Buyer, Supplier must deliver to Buyer certificates of insurance for each above-referenced policy and evidence of the Buyer’s appointment as an insured party thereunder.

4.4. INDEMNITIES.- SUPPLIER WILL AT SUPPLIER’S SOLE COST AND EXPENSE, DEFEND, INDEMNIFY, AND HOLD HARMLESS BUYER AND BUYER’S OWNERS, DIRECTORS, OFFICERS, AFFILIATES, EMPLOYEES, AGENTS, AND INDEPENDENT CONTRACTORS, FROM AND AGAINST ANY AND ALL LIABILITY, LOSS, COST, EXPENSE (INCLUDING REASONABLE ATTORNEY'S FEES), JUDGMENTS, AND DAMAGES INCURRED OR SUFFERED DIRECTLY OR INDIRECTLY AND ARISING OUT OF OR IN CONNECTION WITH SUPPLIER'S NEGLIGENCE, ANY BREACH OF THESE TERMS AND CONDITIONS BY SUPPLIER, OR ANY CLAIM THAT: (A) ARISES OUT OF SUPPLIER'S ACTS OR OMISSIONS; (B) THE GOODS SUPPLIED OR SERVICES PROVIDED BY SUPPLIER DO NOT COMPLY WITH ANY WARRANTY, REPRESENTATION, OR TERM SET FORTH IN THESE TERMS AND CONDITIONS; (C) THE GOODS DO NOT CONTAIN THE INGREDIENTS STATED ON THE PRODUCT LABELS IN THE AMOUNTS SHOWN ON THE PRODUCT LABELS; (D) THE GOODS, SERVICES OR WORK PRODUCT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS, OR ANY OTHER RIGHTS, OF ANY THIRD PARTY; (E) THE GOODS WERE SUPPLIED UTILIZING IMPROPER SANITARY CONDITIONS, MANUFACTURING PRACTICES, OR PACKAGING; (F) THE GOODS CONTAINED IMPROPER INGREDIENT PURITY OR FOREIGN OBJECTS; (G) THE GOODS WERE NEGLIGENTLY OR DEFECTIVELY MANUFACTURED OR SUPPLIED BY SUPPLIER; (H) ARISES FROM ANY ALLEGATION THAT AN EMPLOYEE OR AGENT OF SUPPLIER IS AN EMPLOYEE OF BUYER; OR (I) ARISES FROM A SUPPLIER-CAUSED REGULATORY ACTION. HOWEVER, IF A COURT OF COMPETENT JURISDICTION MAKES A FINAL NON-APPEALABLE DETERMINATION THAT BUYER IS THE ONLY PARTY RESPONSIBLE FOR ANY CLAIMED LIABILITY, LOSS, COST, EXPENSE, JUDGMENTS, OR DAMAGES, SUPPLIER WILL HAVE NO OBLIGATION TO INDEMNIFY BUYER IN THAT INSTANCE.

4.5. REMEDIES.- All remedies set forth hereunder are cumulative. Therefore, for any breach of these Terms and Conditions, Buyer retains all remedies at law and in equity including (i) the remedies of a temporary and permanent injunction; (ii) breach of contract; (iii) specific performance; (iv) rights of set-off of amounts owed to Buyer against amounts payable to Supplier whether under these Terms and Conditions, any related Purchase Orders or Work Orders, or other agreement between Buyer and Supplier; and (v) all rights and remedies available under the applicable laws, except as expressly limited hereunder.

4.6. FORCE MAJEURE. No Party will be liable to the other Party for a failure to timely perform any obligations under these Terms and Conditions when such failure is substantially the result of a Force Majeure Event. If, as a result of a Force Majeure Event, it becomes impossible or impractical for either Party to carry out the Party’s obligations in whole or in part, then such obligations will be suspended to the extent necessary during the Force Majeure Event. The Party affected by the Force Majeure Event must give written notice to the other Party of the nature and probable duration of the Force Majeure Event and the Force Majeure Event’s possible effects on the affected Party's performance of these Terms and Conditions. Each Party must, in the event the Party experiences a Force Majeure Event, use all commercially reasonable efforts to eliminate the effects of the Force Majeure Event on its performance as soon as reasonably possible. In no event will a Force Majeure Event be a reason for Supplier to raise prices or supply a lesser quantity than is stated in any Purchase Order or Work Order prior to the occurrence of the Force Majeure Event.

Notwithstanding the foregoing, if any delay caused by a Force Majeure Event exceeds fourteen (14) days, Buyer may cancel any Purchase Order or Work Order under these Terms and Conditions upon written notice to Supplier, without any liability whatsoever.

4.7. INTELLECTUAL PROPERTY.- Each Party will retain ownership in and rights to any intellectual property (designs, patents, Goods, formulations, processes, etc) that they bring to the commercial relationship. Any intellectual property, know-how or technology of Buyer included in the Goods, Services or the Specifications provided by Buyer is and remains the property of Buyer.

Nothing contained in these Terms and Conditions, shall give either Party the right to use any trademark, trade name, copyright, patents, recipes, formulations, logos and/or designations and/or any other intellectual property belonging to the other, other than for the sole purpose of fulfilling their obligations under these Terms and Conditions.

Both Parties are prohibited from, at any time during or after these Terms and Conditions, doing anything that may adversely affect the validity or enforceability or, infringe or contribute to the infringement of the other’s intellectual property.

Notwithstanding the above, Buyer owns, and Supplier hereby transfers and assigns to Buyer, all right, title and interest in and to any Work Products developed hereunder and Supplier must take all necessary steps to assign and transfer such Work Products to Buyer, free of any claims, interest or rights of third parties.

4.8. CONFIDENTIALITY.- If the Parties have previously signed a non-disclosure or confidentiality agreement, the provisions of that agreement are incorporated into these Terms and Conditions. Each Party will retain any ownership rights such Party has in their respective Confidential Information that may be disclosed to the other Party.

Each Party must hold Confidential Information received from the other Party in confidence and undertake the following obligations with respect to the Confidential Information: (i) use the Confidential Information solely for the purposes contemplated hereunder, including fulfilling the receiving Party's obligations under these Terms and Conditions; (ii) not disclose the Confidential Information to any outside person or entity without the disclosing Party's prior written consent; (iii) limit dissemination of the Confidential Information to only those of the receiving Party's employees and professional advisors who have a need to know the information to enable the receiving Party to perform the receiving Party’s obligations under these Terms and Conditions; (iv) inform its employees, agents, and professional advisors to whom the Confidential Information is disclosed of the receiving Party's obligations under this Section; and (v) return all Confidential Information to the originating Party immediately upon the termination of these Terms and Conditions. In the event a dispute arises regarding the Confidentiality of Information, the information disclosed must be treated as Confidential Information until the dispute is resolved by the Parties or a final non-appealable determination is made by a court of law or arbitrator.

All obligations of the Parties with regards to Confidential Information of the other Party (including, without limitation, the obligation to not disclose the Confidential Information as stated above), shall survive the termination of these Terms and Conditions or any other agreement between the Parties for a period of five (5) years following the termination of these Terms and Conditions or until the Expiration Date (as defined below), whichever happens last. The “Expiration Date,” as applied to any Confidential Information disclosed to a Party, is the date on which such information (a) ceases to be protected by laws pertaining to trade secrets or intellectual property, when applicable; or (b) otherwise ceases to qualify as Confidential Information.

The Supplier will return or destroy as much of such written information as Buyer may request. The Parties agree that a breach of this section by the other Party will cause irreparable harm to the non-breaching Party. The Parties recognize that damages are insufficient to compensate the non-breaching Party for such a loss and agree that, in addition to any other remedy to which it may be entitled to hereunder or by law, it shall be entitled to seek injunctions to prevent breaches of this section and to seek orders compelling specific performance of the other Party’s obligations hereunder.

4.9. ETHICS CODE.- At all times during its dealings with Buyer, the Supplier agrees to conduct its actions in accordance with, and abiding to, Buyer’s Code of Ethics which can be found at https://www.gruma.com/en/investors/investors-gruma/corporate-governance/bylaws-and-code-of-ethics.aspx, as well as the following:

1. The Supplier shall comply with all applicable legal requirements in the country in which its Goods are grown, produced, packed and/or manufactured.

2. The Supplier shall comply with the applicable employment, wages and benefits, working hours, overtime compensation, health, safety and freedom of association regulations.

3. The Supplier shall not employ people younger than 16 (or any higher age that may be required by Law), use forced labor, encourage or tolerate sexual harassment, abuse or discriminatory practices.

4. The Supplier must not permit or tolerate convictions of peonage, physical violence against Supplier’s workers by an employee, supervisor or crew leader. If any of these events occur Buyer may revoke the Supplier's approval to be a supplier to Buyer or may determine another disciplinary action.

4.10. GIFT ACCEPTANCE.- The Supplier or any of its employees or officers, must not offer, solicit or attempt to offer or solicit gratuities to any employee, officer or affiliate of Buyer with the intention of gaining an advantage or influencing their business relationship with Buyer in any way.

In addition, any and all of the Supplier’s directors, officers, employees, agents and advisors, individually, through or in conjunction with any other Party must not give to any of Buyer’s directors, officers, employees, agents and advisors gifts, attentions, goods, recreational trip invitations or benefits for their services or any other special consideration when the value exceeds USD$50.00 (fifty dollars of the United States of America) or its equivalent in AUD for each event.

It is unacceptable to solicit or receive:

1. hotel rooms for non-business travel;

2. use of vacation condos, homes or equivalents;

3. cash, gift certificates, stock or other marketable securities;

4. invitations to events involving any kind of trips; or

5. any gifts or repeated gifts given with the intent of influencing Buyer’s business decision-making.

Guidelines regarding gifts, attentions, goods, benefits, trips, etc. can be found in Buyer’s Code of Ethics found at https://www.gruma.com/en/investors/investors-gruma/corporate-governance/bylaws-and-code-of-ethics.aspx

4.11. CONDUCT WHILE IN BUYER’S PREMISES.- Supplier agrees to comply with all policies and procedures of Buyer while delivering Goods, rendering Services or otherwise being present in the Buyer’s premises, including any policies with respect to security, safety and hygiene. Supplier shall not take pictures, video, make any sort of recordings, including voice recordings, or otherwise capture images while in Buyer’s premises.

4.12. ANTI-BRIBERY PROVISIONS.- The Supplier represents, warrants and undertakes that:

1. it complies with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including (but not limited to) the Criminal Code Act 1995 (Cth) and any applicable local, national or international anti-bribery or anti-corruption law, convention or legislation;

2. it will procure that it will use all reasonable endeavors to ensure that each of its agents, sub-contractors and others performing services in relation to these Terms and Conditions, has in place and monitors, adequate and effective procedures to prevent a breach of the Bribery Legislation;

3. neither the Supplier nor its employees, sub-contractors or agents or others performing services in relation to these Terms and Conditions has done (or agreed to do) or will do (or agree to do) anything which constitutes an offence or a breach by it and/or them and/or Buyer of the Bribery Legislation; and

4. will report in writing to Buyer any suspicion of any breach or alleged breach of any Bribery Legislation, and co-operate with Buyer and/or any regulator and/or prosecutor in any investigation relating to the same.

Buyer may cancel a Purchase Order or Work Order made under these Terms and Conditions at any time if in its opinion a breach of paragraphs (a) to (d) above has occurred, or Buyer suspects that a breach of paragraphs (a) to (d) above has occurred.

Buyer recognizes the United States of America Federal Corrupt Practices Act guidelines as applicable to the Supplier, any of its employees or officers that offer or solicit or intend to offer or solicit gratuities to and/or from Buyer, therefore it is the Supplier’s obligation to review such Act and be in compliance with it.

4.13 MODERN SLAVERY COMPLIANCE.- The Supplier represents, warrants and undertakes that:

1. to the best of its knowledge, neither the Supplier nor its personnel nor its third party suppliers has been or is the subject of any investigation, proceeding or claim by a government authority regarding Modern Slavery offences or a breach of the Modern Slavery Law;

2. it will ensure compliance with the Modern Slavery Laws, and has implemented, or is in the process of implementing, reasonable processes and procedures to assess the risk of Modern Slavery occurrences in its own operations, supply chain and in general any part of its business;

3. it shall provide such information as may be reasonably requested by Buyer to enable Buyer’s own compliance under Modern Slavery Laws; and

4. agrees to give Buyer immediate notice if the Supplier becomes aware of a breach or alleged breach of Modern Slavery Laws by its personnel or third party suppliers.

4.14. DEFAULT AND TERMINATION.- If Supplier fails or refuses to perform, observe, or comply with any representation, warranty, covenant, provision, obligation, or condition contained in these Terms and Conditions and/or any Purchase Order or Work Order, or if Supplier suspends business operations, files any petition in bankruptcy, or commits any act amounting to a default of its obligations under these Terms and Conditions and/or any Purchase Order or Work Order, and fails to cure such default within ten (10) days after receipt of a written demand for performance by Buyer, Buyer may, in its sole discretion, terminate these Terms and Conditions by written notice to the Supplier without incurring any liability to Supplier.

On termination of these Terms and Conditions:

1. the accrued rights and remedies held by Buyer are not affected;

2. any sums owed to Buyer are immediately due and any and all obligations of Buyer hereunder for the purchase of Goods to Supplier cease; and

3. orders for Goods which have been accepted but have not been fulfilled by Supplier are cancelled without any liability.

Furthermore, upon termination of these Terms and Conditions, Supplier will provide Buyer with all non-proprietary, non-confidential, and non-trade secret information necessary to transition to another supplier and must cooperate to make the transfer as efficient as possible for Buyer. Supplier will also provide Buyer with the specific composition, formulation, and specifications of any Work Products developed in conjunction with Buyer or in any way containing Buyer’s Confidential Information. Buyer has the right to use such composition, formulation, and specifications without further compensation to Supplier, regardless of the extent of Buyer’s prior or future contribution to the development or refinement of such Work Products. Such information must be made available to Buyer within fifteen (15) days of Buyer’s request.

4.15. ASSIGNABILITY AND SUBCONTRACTING.- The rights and obligations of Supplier hereunder may not be transferred, assigned or delegated, by operation of law or otherwise, except to the extent otherwise consented to in writing by Buyer.

If any Goods or Services are provided by a subcontractor, Supplier guarantees and will remain fully liable for Supplier’s obligations under these Terms and Conditions and Buyer will have no obligation whatsoever under any subcontract relationship or to any subcontractor.

4.16. APPLICABLE LAW AND DISPUTE RESOLUTION.- These Terms and Conditions are governed and construed by the laws of the State of Victoria, Australia.

Except that injunctive relief may be sought in a court of law, any and all controversies, disputes, or claims arising out of or relating to these Terms and Conditions, or any part hereof, are to be resolved by mediation to be conducted in accordance with the Australian Commercial Disputes Centre ("ACDC") Mediation Guidelines, which set out the procedures to be adopted for the mediation, the process of selection of the mediator and the costs involved (the terms of the ACDC Mediation Guidelines are deemed to be incorporated into these Terms and Conditions).

In the event a resolution is not successful in mediation, the Parties agree the matters are to be settled and resolved by the courts of the State of Victoria (and any courts that may hear appeals from those courts).

4.17. ENTIRE AGREEMENT.- These Terms and Conditions, as amended or supplemented from time to time by Buyer, together with any Purchase Order and/or Work Order placed by Buyer subject to these Terms and Conditions (in the understanding that each such Purchase Order or Work Order shall include the corresponding Specifications) and any Master Agreement and/or Supply Agreement, constitute the entire agreement between the Parties and supersede any and all prior communications or agreements between the Parties with respect to its subject matter. Should there be a conflict between these Terms and Conditions, any Purchase Order, any Work Order or any Supply Agreement, such conflict must be resolved by giving precedence in the following order: (i) any Supply Agreement; (ii) these Terms and Conditions; and (iii) any Purchase Order or Work Order, as the case may be.

These Terms and Conditions may not be amended except by a written agreement executed by both Parties. ANY AGREMENT IN WRITING NOT SIGNED BY BUYER WILL NOT BE CONSIDERED VALID, INCLUDING ANY TERMS AND CONDITIONS OF SUPPLIER, WHICH ARE EXPRESSLY DISCLAIMED BY THE PARTIES.

4.18. GENERAL PROVISIONS.-

1. If any part of these Terms and Conditions becomes void or unenforceable in a jurisdiction for any reason, then that part will be severed in respect of that jurisdiction only with the intent that all remaining parts will continue to be in full force and effect and be unaffected by the severance of any other parts.

2. No delay or omission to exercise any right, power or remedy accruing to Buyer upon any continuing breach or default under these Terms and Conditions will impair any such right, power or remedy, nor will it be construed to be a waiver of any right of Buyer to take action or make a claim in respect of a continuing breach or default or to be acquiescence to it.

3. Buyer is in no way obliged to buy any Goods or request any Services exclusively from the Supplier and may refuse to buy Goods or request Services from the Supplier at its absolute discretion.

4. The terms and the covenants, conditions, provisions, obligations, undertakings, rights, and benefits hereof are binding upon the Parties and the Parties’ respective heirs, assigns, administrators, executors, officers, directors, shareholders, partners, employees, successors, agents, servants, and representatives.

5. Supplier will not publish or use Buyer’s name or any of its intellectual property on or in connection with advertising, sales promotion, publication, or publicity matter, unless otherwise agreed in advance and in writing by Buyer.

6. Each Party is an independent contractor and not a manager, employee, partner, or agent of the other Party. Nothing in this Agreement or in the relationship of the Parties may be construed as in any way creating a partnership or any fiduciary obligation between the Parties. Except as expressly set out in this Agreement, neither Party has the authority to act for or incur any obligation on behalf of the other Party or any affiliate of the other Party.
   
   Supplier is responsible for and will promptly pay all federal, state, and municipal taxes chargeable or assessed with respect to Supplier’s employees including, but not limited to, social security, unemployment, workers' compensation, and federal and state withholding taxes.

7. Notwithstanding anything in these Terms and Conditions to the contrary, Sections 4.4., 4.5., 4.7., 4.8., 4.13, 4.16., 4.17., 4.18., and 4.19. hereunder shall survive the termination of these Terms and Conditions.

4.19. NOTICES.- All notices and other communications under these Terms and Conditions must be in writing and will be deemed to have been given if delivered personally, sent by facsimile (with confirmation), mailed by certified mail postage prepaid, delivered by an overnight delivery service (with confirmation), or sent by electronic mail (with confirmation sent by certified mail on or prior to the next business day) to the Parties at the addresses, facsimile numbers, or email addresses set forth below (or at such other address or facsimile number as a Party may designate by like notice to the other Parties):

If to Buyer:

Gruma Oceania Pty. Ltd.

49 Gateway Boulevard,

Epping, VIC 3076

Telephone: (03) 8401- 1428

With an electronic copy in PDF format to rzozaya@missionfoods.com.au

If to Supplier:

Notices may be provided at any address or email of the Supplier provided on the Purchase Order or Work Order, or in the event the Purchase Order or Work Order does not provide any address, notices may be provided to any address of Supplier (physical, fax, telephone, electronic, or otherwise) publically available.

Any notice or other communication will be deemed to be given (a) on the date of personal delivery, (b) at the expiration of the 3rd day after the date of deposit in Australia’s mail, (c) upon sending the electronic mail, or (d) on the date of confirmed delivery by facsimile or overnight delivery service.