AGREEMENTS AFFECTING COMPETITION: APPLICATION FOR AUTHORISATION

ACT HEALTH FOOD CO-OPERATIVE LTD

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ANNEXURE "A" I

PROPOSED CONTRACT BETWEEN ACT HEALTH FOOD CO-OPERATIVE LTD

AND MCP OPERATIONS PTY LTD tlas SYMBION CONSUMER

. r :

"SYMBION CONSUMER"

TERMS AND C~&DITIONS OF SALE

1. GENERAL

1 .l. These terms and 4 nditions and the schedules constitute the who! agreement ("Terms and Conditionsn) and tire understanding between MCP Operations Pt Ltd (ABN 43 076 651 959) trading as Symbiop Consumer ("Syrnbion Consumer") and A T Health Food Co-operative Limited ("Coopera ive"). i

1.3. The term is set Item 1 of Schedule I ("Term").

1.4. No term or

P

as an offer capable of

olumes, specifications, a provided by Symbion

rochures, catalogues, are by way of general y and shall not form part

I .8. All orders are deem4 to have been made by the P Cooperative and a pted by Symbion Consumer

upon and subject to ese Terms and Conditions.

2. ORDERING AND SUPP ' OBLIGATIONS lr 2.1. The Cooperative wil(:

I1 I 2.1.1. place an order/ r the Goods via telephone,

facsimile, ema\l or a direct order with the account contact set out in Item 3 of Schedule 1 ("Account CO~) actn) or as otherwise agreed by Symbion Cq sumer; and

2.1.2. quote the acco t number, relevant promotional co' or 'deal code' and goods code, followed 1 quantity.

2.2. The Cooperative

from time to time.

2.3. Quotation / I

2.3.1. These Terms and Conditions apply to all quotations issued by Symbion Consumer to the Cooperative for the sale of its Goods, all sales of Goods made by Symbion Consumer to the Cooperative and all Purchase Orders submitted by the Cooperative to Symbion Consumer.

2.3.2. Any quotation made by Symbion Consumer is not an offer to sell goods and the Cooperative's order made as a result of any quotation will not bind Symbion Consumer until accepted by Symbion Consumer in writing or by the commencement of supply of Goods.

2.4. Symbion Consumer must ensure that the Goods supplied to the Cooperative have, from the date the Goods are delivered to the Cooperative, a minimum of 9 month's shelf life, prior to the expiry date of the Goods.

3. PRICE

3.1. Wholesale prices quoted are exclusive of goods and services tax (GST) and rebates. .

3.2. Prices quoted include the prevailing rates and costs of material, labour, freight (other than end delivery freight), carrier's fees, Government tariffs, duties and taxes, and shall be subject to increase in respect of any variation in such rates or costs or new or different impositions of government taxes or the method of assessment of the same occurring before completion of the agreement. Syrnbion Consumer is entitled to increase the price without notice to the Cooperative.

4. GST

4.1; Where a party to these Terms and Conditions (Supplier) makes a Taxable Supply under or in connection with these Terms and Conditions or in connection with any matter or thing occurring under these Terms and Conditions to another party to these Terms and Conditions (Recipient) and the consideration otherwise payable for the Taxable Supply does not include GST, the Supplier will be entitled, in addition to any other consideration recoverable in respect of the Taxable Supply, to recover from the Recipient the amount of any GST on the Taxable Supply.

4.2. Where a party to these Terms and Conditions is entitled, under or in connection with these Terms and Conditions or in connection with any matter or thing occurring under these Terms and Conditions, to recover all or a proportion of its costs or is entitled to be compensated for all or a proportion of its costs, the amount of the recovery or compensation shall be reduced by the amount of (or the same proportion of the amount of) any Input Tax Credits available in respect of those costs.

4.3. In these Terms and Conditions, the following terms have the following meanings:

4.3.1. "GST" means the tax payable on a Taxable .Supply under GST Legislation.

4.3.2. "GST Legislation" means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

4.3.3. "Input Tax has the meaning given to it

4.4. "Taxable.Supplyn s the meaning given to that

Cooperative are strictly

5.2. The Cooperative to pay interest on any bill swap rate at close of

the amount is in default.

5.3. The Cooperative Member will have no right of to any moneys owed Cooperative or any

source Goods from

nd 8 of the Terms and Conditions.

the Cooperative shall 'inspect and give written notice to

6.3. Where Goods are g Id subject to inspection: Ii Y

6.3.2. if the Go

6.4. Subject to any r nd without limiting the entitlement of a rescind a contract

y order accepted by y be cancelled, varied

or suspension bei Cooperative unde indemnify Symbio expenses, charge by Symbion Consumer

execution of an order.

7.1. Metropolitan Areas Deliveries to metropolitan areas are free of charge with a minimum order value of $150.00 (excluding GST). Metropolitan areas include ACT, Brisbane, Gold Coast, Sunshine Coast, Ipswich, Toowoomba, Sydney, Newcastle, Wollonggong, Canberra, New South Wales Central Coast, Melbourne, Geelong, Mornington (and the peninsula areas), Bendigo, Ballarat, Adelaide and Perth. Should the Cooperative require a delivery of less than $150.00 (excluding GST), then a surcharge of $5.00 (excluding GST) will apply.

7.2. Country Areas. Deliveries to country areas will be subject to a surcharge of $10.00 (excluding GST). Country areas include all areas that are not specified as metropolitan areas above. This surcharge will be waived for all orders with a value in excess of $500.00 (excluding GST).

8. DELIVERY, RISK AND PROPERTY

8.1. Symbion Consumer shall not be liable for any damage caused to the Goods by a carrier whilst the Goods are in transit where Symbion Consumer are not in possession or control of the Goods.

8.2. Where Symbion Consumer agrees to deliver the Goods to the premises of the Cooperative and where Symbion Consumer contracts with a carrier nominated by the Cooperative to do so, delivery of the Goods to the carrier in all circumstances constitutes delivery to the Cooperative.

8.3. ' Risk in Goods passes,to the Cooperative on ddivery to the Cooperative.

8.4. Unless otherwise agreed in witing all Goods will be at the Cooperative's risk upon delivery to the Cooperative, the Cooperative's carrier or agent.

8.5. The Cooperative must insure Goods from the date of delivery to the earlier of the date of resupply by the Cooperative and the date ownership of the Goods passes to the Cooperative.

8.6. Ownership of Goods in each ddivery passes to the Cooperative only:

8.6.1. when all of the Goods in that delivery are paid for in full; and

8.6.2. when all of the Goods in all other deliveries of the same Purchase Order are paid for in full.

Until then: 8.6.3. ownership of the Goods remains with

Symbion Consumer; 8.6.4. The Cooperative holds the Goods on trust as

bailee for Syrnbion Consumer; and 8.6.5. The Cooperative must use reasonable efforts

to store the Goods separately from its own Goods, or enable the Goods to be sufficiently identified and separated, and at any time on request by Symbion Consumer, permit Symbion Consumer to enter any premises at which the Goods are said to be, or are, to inspect the Goods.

8.7. If the provisions of clause 8.6 cannot be fully enforced because of the words in clause 8.6.2, those words will be severed in accordance with Clause 15.6.

FREIGHT

, - 8.8.' If any event to in Clause 12 happens to the

8.8.1. immediately Symbion Consumer request must return to Symbion

it does not own; enter the premises stored and retake

8.10. The Cooperative s , II be responsible for Symbion Consumer's reasoq ble costs and expenses related to inspectio under these Terms and Conditions. Where; ymbion Consumer exercises

m the aforesaid power , such entry shall not give rise to any action of tre$ ass or similar adion on the part of the Cooperat ve against Symbion Consumer, its empl yees, servants or agents. i

8.1 1. In this clause paid ns receipt of cash or cleared funds.

dispose of or hand hereunder until ow Cooperative in acc h this condition.

are sold to a third party has passed to the

- not.

nsibility to ensure that are displayed and the to present Symbion nce with Symbion

promotional marketing the Cooperative from

time to time.

Consumer will use its reasonable endeavours to provide the marketing information at a minimum of three months in advance or as reasonably required.

9.4. The Cooperative will co-operate with Symbion Consumer to ensure the Goods are rotated so as to minimise loss through the expiry of the 'useby' date.

9.5. Symbion Consumer will provide product training on an ongoing basis to the Cooperative store assistants, other members of the team and shop

, assistants as and when Symbion Consumer's promotional activities require.

$I 9.6. Symbion Consumer and the Cooperative shall

conduct detailed business reviews of the nutraceuticals category on a half yearly basis.

10. DESCRIPTION, SPECIFICATIONS AND DATA

10.1. Any description, illustration and other material contained in any catalogue, price list, brochure, leaflet or other descriptive material provided by or on behalf of Symbion Consumer, is given by way of identification only and the use of such description, illustration or other material will not constitute a contract between Symbion Consumer and the Cooperative as a sale by description.

10.2. As between Symbion Consumer and the Cooperative, Symbion Consumer owns all right, tide and interest in and to the intellectual and industrial property rights embodied in or associated with the Goods (including the intellectual property rights existing in the labels applied to the Goods). The Cooperative agrees t6 promptly notify Symbion Consumer of any unauthorised use of Symbion Consumer's intellectual or industrial property rights of which it is aware.

11. FORCE MAJURE

11 .I. Symbion Consumer shall not be liable for any failure or delay to supply the Goods due in any part to any cause beyond its control such as, but not limited to, any act or neglect of any carrier, subcontractor, manufacturer or supplier of Symbion Consumer, acts of God, strikes, lock-outs, bans or other industrial disturbances, fire, flood, explosion, civil riot or commotion, Government interference or request by law, rules or regulations or orders of any competent authority. No such failure or delay shall entitle the Cooperative to terminate these Terms and Conditions and Symbion Consumer's obligations to the Cooperative shall be suspended without liability on the part of Symbion Consumer while such cause exists.

12. DEFAULT

Upon the happening of any of the following events:

12.1. The Cooperative becomes an extemally- administered body corporate under the Corporations Act 2001 (Cth);

12.2. a controller (as defined in section 9 of the Ccrporations Act 2001 (Cth)) is appointed to any of the property of the Cooperative or any steps are taken for the appointment of a controller; or

12.3. The Cooperative is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Corporations Act 2001 (Cth),

s and Conditions t law or in equity and

s not passed to the to Clause 8 the Cooperative

12.12.

with Clause 5.2 of delivered and for freight, storage, h

13. WARRANTY AND ITY OF SYMBION CONSUMER

13.1. All terms, condition4j warranties, undertakings, inducements and re esentations, whether expressed or implied statutory or otherwise, relating in any way to any G ' ds are excluded to the full extent pmitted by j S w.

use, liability of - Symbion

Consumer's option:

13.3. I not be liable for any costs or injury to or death of any

13.4. Each indemnity in th e Terms and Conditions has a continuing obligation eparate and independent from Symbion Consumer's ,other rights and obligations I

and survives termination of these Terms and Conditions.

13.5. It is not necessary for either party to incur expense or make payment before enforcing a right of indemnity conferred by these Terms and Conditions.

13.6. Neither party will be liable to the other party under these Terms and Conditions for any consequential .

loss other than consequential loss arising from the Cooperative's negligence.

13.7. The Cooperative hereby indemnifies Symbion Consumer and each of its related body corporate (within the meaning of the Corpcwations Act 2001 (Cth))) against any claim, action, damage, loss; liability, cost, expense or payment of any kind which Symbion Consumer pays, suffers, incurs or is liable for in connection with the Cooperatives breach of these Terms and Conditions, including the breach of any of its representations and warranties contained in these Terms and Conditions;

13.8 The Cooperative indemnifies Symbion Consumer (and each of its related body corporate) and shall bear and be responsible for any loss, liability, cost, expense or payment of any kind paid, suffered, incurred or arising in connection with a recall of the Goods supplied to the Cooperative under these Terms and Conditions unless the recall arises as a result of Symbion Consumer's breach of the Tenns and Conditions or Symbion Consumer's negligence.

13.9 Symbion Consumer holds the benefit of the . indemnities in favour of its related body corporate

on trust for those related entities.

14. PRODUCT RECALL

14.1. Symbion- Consumer may at any time recall the Goods either at its own instigation or pursuant to an order of a governmental body. Subject to Clause 13 Symbion Consumer shall be responsible for coordinating and canying out the product recall and the Cooperative must provide all reasonable assistance to Symbion Consumer in canying out the product recall as Syrnbion Consumer shall reasonably request.

14.2. The Cooperative must promptly notify Symbion Consumer's customer service or the Account Contact of any complaints relating to the Goods received by one of its customers

14.3. Symbion Consumer shall also be responsible for delivering any replacement Goods which are required to be provided to its customers as the result of a recall.

15. MISCELLANEOUS

15.1. All notices to be served upon the Cooperative or Member shall be deemed to be duly served if left at or sent by ordinary prepaid post, the email or facsimile transmission as specified in Item 2 of Schedule 1 to the last known address of the Cooperative. The Cooperative and each Member shall be deemed to have received any notice two (2) days after posting or upon receipt of email or the facsimile transmission confirmation.

15.2. The Cooperative shall not assign any rights or obligations under these Terms and Conditions

15.3. Any variations to Terms and Conditions by the expressly agreed to in writing

15.4. No waiver by Sym, on Consumer of any default of the Cooperative or nder performance of any obligation or condit on of these Terms and Conditions shall be or deemed to be a waiver of that or any other o ! igation or condition.

15.5. This singular shall lude the plural and vice versa.

and severally.

remain in force.

by Symbion h

at its sole discretion by

15.9.The parties agree these Terms and Conditions

Queensland.

the parties is that of nothing in these

P the parties as

16. TERRITORY i li ell or distribute the

hall not sell or distribute

16.3.These Terms and nditions are exclusive to the cooperative in thdlrritory.

16.4. In these Terms and/ onditions "Territory" means the "retail health foo store channel" in the Australian Capital f rritory.' f

17. PERFORMANCE

17.1. The Cooperative shall maintain commercial and positive relations with its customers and use its

' best endeavours to secure orders for the Goods.

17.2. The Cooperative will diligently attend to its responsibilities under these Terms and Conditions.

17.3. Not knowingly cause or suffer to be done any act or omission where any property or business of the Cooperative may be endangered or harmed.

17.4. Promptly advise the Cooperative of any facts, complaints or opinions from customers or any developments in the market for Goods in the Territory which the Cooperative believes or could reasonably be expected to have believed would affect sales of the Goods in the Territory.

18. DISPUTES

18.1. If a party claims that a dispute has arisen, that party must give written notice to the other parties. The written notice must specify the nature of the dispute.

18.2. On receipt of a notice delivered in accordance with clause 18.1, the parties must, in good faith and acting reasonably, do their best to resolve the dispute expeditiously through negotiation.

18.3. If the parties do not resolve the dispute by negotiation, the parties must, in good faith and acting'reasonably, do their best to resolve the dispute by participating in mediation with an independent mediator.

18.4. If the parties do not agree on a mediator, then the mediator will be appointed by the President of the Law Institute of Queensland.

18.5. Unless the parties agree otherwise, the mediator's fee and any other costs of the mediation itself (such as for venue hire or refreshments) will be shared equally between the parties, but the parties will each pay their own costs of preparing for and participating in the mediation (such as for travel and legal representation).

18.6. The parties must do whatever is reasonably necessary to put into effect any negotiated or mediated agreement or other resolution. This includes exercising voting rights and other powers as required.

18.7. During a dispute, each party must continue to perform its obligations under these Terms and Conditions.

18.8. This clause 18 does not restrict or limit the right of either party to obtain interlocutory relief, or to immediately terminate these Terms and Conditions where these Terms and Conditions provides such a right.

19. COOPERATIVE

19.1. The Cooperative and each of the Members shall be bound to Symbion Consumer jointly and severally.

19.2 Members of the Cooperative enter into these Terrns and Conditions in their own right and

application to wind-up of

uidator, receiver, receiver &

19.4 The obtain Symbion

membership and acknowledge that it intends to be bound by the terms of these Terms and Conditions. If so required by the Symbion Consumer each new Member must enter into an agreement substantially on the same terms as these Terms and Conditions.

19.4 In these Terms and Conditions "Member " means a member of the Cooperative from time to time which as at the date these Terms and Conditions were . entered into were the Members set out in Schedule 3.

19.5 each new Member in writing of its

I I We agree to comply with I the Terms and Conditions detailed above and in the Schedules. 4 I These Terms and Conditions a e dated:

" li t Signed for an on behalf of [ * PTY LTD (ABN 1 by its authorized representativ, in the presence of:

Signature of Witness . 11 I Signature of Authorised Representative

Name of Authorised Representative (BLOCK LETTERS) (BLOCK LElTERS)

MCP OPERATIONS PTY (ABN 43 076 651 959) by representative in the

I I ~ , I

I

Signature of Witness Signature of Authorised Representative

Name of Authonsed Representative (BLOCK LETTERS)

Schedule 1

2. THE COOPERATIVE lit 1 DDRESS FOR SERVICE

[insert contact nam ; email and fax contact numbers] 1' I 3. SYMBION CONSUME 'I k ACCOUNT CONTACT

Customer Service 87 Yarraman Place Virginia, Qld, 4014 Ph - 07 3212 8741

4. MARKETING - 5 is subject to the following deductible rebate:

The total monthly tible rebate is for purchase of Microgenics Goods from Symbion Consumer.

The Marketing subject and conditional on the Cooperative not being in breach of these Terms and Conditions.

in promoting, marketing and selling the Goods to customers, Symbion Consumer shall Marketing Rebate. The Cooperative agrees that the ~ i r k e t i n g Rebate shall be used as

of the Goods in accordance with this clause, provided that the Marketing if it can reasonably show that such amount is:

(a) to be external marketing purposes and not for the purposes of funding internal marketing Cooperative (such as the salary costs of an employee marketing manager or other

in the marketing and promotion of the Goods. I

The Marketing Rebate, hall be paid on a monthly basis and will be calculated according to sales of Goods by the Cooperative to in the previous month.

r

Notwithstanding that t , application of the Marketing Rebate shall be applied in a manner to be mutually agreed, suggested applicationd of the Marketing Rebate include:

I s in all catalogues and other advertising material produced by the clarity this does not include individual Members material) from time to

on Member's websites. in any newsletters or other product-based materials produced by the r otherwise made available to Customers from time to time. tising for the Cooperative on the website of the Cooperative (for the lude individual Members material) which shall include a hyperlink to

's website (www.carlsonhealth.com.au or .

iously agreed in writing by the Symbion Consumer.

For the purposes of the volume and extent of the promotional and marketing initiatives undertaken by the Cooperative of herein, the parties agree that the ordinary wholesale cost of such initiatives shall be applied as the Marketing Rebate. For example, if the Marketing Rebate for the previous month is the Cooperative shall ensure that marketing and promotional initiatives of the in or about the then current month to at least the value of $1 0,000.00.

a No:withstanding any provisions of this provision, the Cooperative shall ensure that initiatives of the kind contemplated herein value of the Marketing Rebate are fully undertaken every calendar quarter, failing which any of the Marketing Rebate shall be deducted from the value of the Marketing Rebate for which is required to pay the Cooperative in the following calendar quarter.

. The Cooperative s ate a representative who shall liaise with the Sales Manager of Symbion Consumer and, on at least a m basis, report to the Sales Manager as to the application of the Marketing Rebate and in particular the type a ue of the marketing and promotional initiatives undertaken by the Cooperative in the previous month. Th s further agree that the Cooperative and the Sales Manager of Symbion Consumer may, from time to d at the request of either of them) review the application of the Marketing Rebate and give consideration eps which may serve to improve the effectiveness of the marketing and promotional initiatives utilized b perative with respect to the Goods.

Symbion Consume rom time to time, provide suggestions to the Cooperative as to the application of the Marketing Rebate. suggestions may include notification to the Cooperative that Symbion Consumer is offering, or is intend offer, any special, promotion or other sales incentive in relation to the Goods and reasonably request e Cooperative apply all or part of the Marketing Rebate in support of any such promotion. Symbi mer acknowledges that the Cooperative shall not be obliged to implement such

ooperative agrees to give Symbion Consumer's suggestions reasonable and

asonable consideration to any suggestions made or opportunities given by major retail tion of the Marketing Rebate or otherwise the involvement of the Cooperative andlor

The Cooperative Symbion Consumer shall be entitled to have active involvement in The Cooperative's account manage omers. Additionally, the Cooperative agrees to disclose to Symbion Consumer,

tive, all Customer account particulars for the purposes of product tives conducted by, or at the direction of, Symbion Consumer. The

reasonable steps under the applicable privacy legislation within the Territory in order lvement and to only use such customer information for the purpose of which

In these Terms and "Marketing Rebate" means: combined sales are less than $25,000 an amount equal to 3% of the net value then current price) of all sales of the Goods calculated on a monthly basis in

(ii) w ere total combined sales are more than $25,000 an amount equal to 5% of the net value (d ing the then current price) of all sales of the Goods calculated on a monthly basis in a i a r s.

5. DISCOUNTS /~I - The payment in clause 5 is subject to the following discounts:

Level 1 Off lnvoice ~ id lount : Members of the Cooperative shall be entitled to an off invoice discount in respect of

any goods wholesale p ice less twenty five percent (25%). il . Level 2 Off Invoice nt: In the event an individual Member acquires more that $3,000.00 worth of the Goods

(calculated by refe the Off invoice discount price) in more than 3 consecutive calendar months (i.e. more ill be subsequently entitled to move frori, Level 1 to Level 2 Off lnvoice Discount and m of the goods shall be Symbion Consumer's wholesale price for such Goods less

thirty percent (30%). additional discount shall only apply to the Goods purchased by the individual Member in the relevant m uent to purchasing $9,000 of Goods in 3 consecutive months. In the event that a Member entitled ff Invoice Discount orders less that $3,000 worth of Goods (calculated by reference to the Off invoic ce) in more than 3 consecutive calendar months (i.e. less that $9,000) that Member

d from Level 2 to Level 1 Off lnvoice Discount.

Schedule 2

P.3 at the date of thi' ,Agreement the Members of the Co-operative are: 9 Go Vita (Health Spectrum)

Go Vita Jamieson ( e Allergy Centre) Shop 3 Jamieson Bowman Street, Macquarie, ACT,

Healthy Life Belcon Shop 9, Westfield Belconnen, ACT,

Healthy Life City A33 City Civic, ACT, 2601 1

/I Healthy Life Weston, G26 Cooleman COU'.!,

h Weston. ACT, 261 1 1; Dickson Health

Garema Health Foo! Shop 5, Florina Build ng, Garema Place, Civic, ACT, 2601 t Mountain Creek ~ e d l h Foods I4 Barker Street, / Griffith, ACT, 2603

Healthy Start Vitamins Civic Store Shop 6 Petrie Plz,

Queanbeyan Mega ealth 222 Crawford Street Queanbeyan, NSW, 620 4