This Agreement is entered into between U Be Fit Pty Ltd (ACN 129 190 450) ATF Stallworthy Business Trust t/as Your Reformer (ACN 129 190 450) (we, us or our) and you, the company which applies for, and if approved, purchases wholesale Goods from us for the purpose of resale or use in its business (you or your), together the Parties and each a Party.

1.               Wholesaler Application

1.1            You must apply to become our approved wholesaler by submitting an application in the form and manner we specify (Application). In your Application, you may apply either to purchase the Goods for your own use only, or to purchase the Goods with rights to onsell them.

1.2            You acknowledge and agree that:

(a)             we may request any information or documentation from you that we reasonably require to assess your Application, including information about your business, trading history, financial position, and your intended customer base and sales channel; and

(b)            we may make any enquiries we consider necessary to verify the information provided in your Application; and

1.3            We may, at our absolute discretion, accept your Application in part (where you will not have resell rights) or in full, or reject your Application, and we are not obliged to give reasons for any decision to reject your Application.

1.4            If we accept your Application, we will notify you in writing (including any limitations on your account), you must then set up an Account with us in order to order the Goods.

2.               Account

2.1            If we approve your Application, you must sign up for an Account to purchase Goods through our Site.

2.2            While you have an Account with us, you agree to:

(a)             keep your information up-to-date (and ensure it remains true, accurate and complete);

(b)            keep usernames and passwords secure and confidential, and protect them from misuse or being stolen; and

(c)             notify us if you become aware of, or have reason to suspect, any unauthorised access to your Account or any logins linked to your Account.

2.3            We may, at our absolute discretion and without liability to you, suspend or close your Account (including where we reasonably consider that you no longer meet the criteria on which your Application was accepted, or you have breached this Agreement), and if we do so, you will lose access to the Site and your ability to order Goods.

3.               Use of our Site

3.1            When using our Site, you must not:

(a)             breach any person's privacy or legal rights, or upload personal information without consent;

(b)            defame, harass, threaten or offend any person;

(c)             use our Site for any unlawful purpose;

(d)            interfere with other users or the operation of our Site;

(e)             introduce viruses, malware, or attempt to modify or tamper with our Site;

(f)              send spam or unsolicited messages;

(g)             use automated tools such as bots, scrapers or data mining software on our Site;

(h)            assist any other person to do any of the above;

(i)              provide false, inaccurate or misleading information;

(j)              use another person's details without authorisation; or

(k)             fail to maintain the security of any Account credentials we provide to you.

4.               Quotes and Orders

4.1            Orders: During the Term, you may place an order for Goods through the Site at the prices and on the terms displayed at the time of your order (Order). We are not obliged to accept any Order, and an Order will only become binding once we issue confirmation of acceptance to you.

4.2            Quotes: Alternatively, you may request a quote for Goods by notifying us in writing via email or by any other process we specify (Quote Request). If we accept a Quote Request, we will issue you a quote specifying the Goods, Price and other terms (Quote), which will become binding once you accept it in accordance with its terms.

4.3            Each Order and Quote is subject to, and will be governed by, this Agreement and any other conditions expressly set out in the Order or Quote (as applicable). To the extent of any ambiguity or discrepancy between an Order or Quote and this Agreement, the terms of this Agreement will prevail.

5.               Supply of Goods

5.1            In consideration of your payment of the Price, we will supply the Goods in accordance with this Agreement, whether ourselves or through our Personnel.

5.2            You must pay us the Price in full prior to us supplying the Goods, unless we have agreed to supply you the Goods on credit, in which case you must pay us in accordance with the Payment Terms.

5.3            If this Agreement expresses a time within which the Goods are to be supplied, we will use reasonable endeavours to provide the Goods by such time, but you agree that such time is an estimate only.

5.4            We reserve the right absolutely at any time and without notice or incurring any liability to you to:

(a)             discontinue or limit (whether temporarily or permanently) our production, supply or delivery of any of the Goods;

(b)            alter the design, construction, specifications, features or attributes of any of the Goods; and/or

(c)             add new, different, modified and/or extra products or lines of products to the Goods,

provided that, if any of the above affects Goods the subject of a Quote or Order that we have already accepted, we will notify you and, at our discretion, either supply you with a reasonable substitute for the affected Goods or refund any amount you have paid for those Goods.

5.5            We may, from time to time, offer promotions on the Site that affect the Price of Goods. Such promotions are governed by their own terms and conditions. If there is a conflict between the terms of a promotion and this Agreement in relation to pricing, the promotion terms will govern in relation to that pricing only; for all other purposes, this Agreement will prevail.

6.               Delivery, Title and Risk

6.1            Title in the Goods will only pass to you on the date that you pay the Price in full in accordance with this Agreement.

6.2            Responsibility for delivery of the Goods will be in accordance with the relevant Incoterm, including the costs of delivery.

6.3            Risk in the Goods will pass to you on delivery of the Goods to the Delivery Point.

6.4            We may, in our sole discretion, without liability or penalty, make partial shipments of Goods. Each shipment will constitute a separate sale, and you shall pay for the units shipped whether such shipment is in whole or partial fulfillment of your order in accordance with clause 8.

6.5            Where Goods are supplied to you without payment in full, you:

(a)             are a bailee of the Goods until title in them passes to you;

(b)            irrevocably appoint us to be your attorney to do all acts and things necessary to ensure our retention of title to the Goods, including the registration of any security interest in our favour with respect to the Goods; and

(c)             must not allow any other person to have or acquire any security interest in the Goods without our prior written consent.

6.6            It is your responsibility to ensure that the Delivery Point can be accessed safely and the Goods, once delivered, will be secure. You represent that the Delivery Point and surrounding areas are and will remain safe and free and clear of debris, hazards and dangers and is fit and suitable for the transportation and installation of the equipment.

6.7            If you fail to accept delivery, or we cannot deliver because you have not provided the required instructions or authorisations, or the Delivery Point is inaccessible, unsafe or unsecure, we will notify you and:

(a)             we are not liable for any delay in delivery to the extent caused by you or the state of the Delivery Point;

(b)            the Goods will be treated as delivered, and we may store them until you collect them, in which case you must pay our reasonable storage and insurance costs; and

(c)             we may arrange redelivery of the Goods to you, in which case you must pay our reasonable redelivery costs, or we may agree with you a new delivery date and Delivery Point, acting reasonably.

6.8            Subject to your Consumer Law Rights, any liability for non-delivery of the Goods other than as set out in clause 6.7 is limited to replacing the Goods within a reasonable time or adjusting the invoice for such Goods to reflect the actual quantity delivered. You must notify us in writing of any non-delivery as soon as reasonably practicable, and in any event within a reasonable time after the date the Goods would, in the ordinary course, have been received.

7.               Resale Obligations

7.1            This clause 7 applies only if we have approved you for resell rights under clause 1.

7.2            You may resell the Goods, during the Term, solely to your Permitted Customers. You must not resell (or knowingly supply to any person who intends to resell) the Goods to any person other than a Permitted Customer, or otherwise onsell the Goods on a wholesale basis, without our prior written consent. This is a non-exclusive appointment and we may sell, or appoint others to sell, the Goods to any person, and you may sell similar goods, at any time.

7.3            You must (and must ensure your Personnel):

(a)             comply with this Agreement, all applicable Laws, and our reasonable requests, and resell the Goods with due care and skill and in a proper, professional manner;

(b)            purchase the Goods only from us, and not alter the Goods, their packaging or labelling without our written consent;

(c)             not do anything that may adversely affect our (or the Goods') goodwill, brand or reputation, and not register any Intellectual Property Rights in connection with the Goods;

(d)            take reasonable steps to proactively resell the Goods to your Permitted Customers, and hold sufficient stock to meet expected demand;

(e)             notify us within 2 Business Days of becoming aware of:

(i)              any adverse incident (such as death, injury or damage) connected with the Goods, or any incident that could require a product recall; or

(ii)            any defective Goods or other issue that may affect our (or the Goods') brand or reputation, and cooperate with us to remedy it;

(f)              maintain records of your resale of the Goods and provide them to us on request;

(g)             obtain any approvals, consents, licences or permits we reasonably request to allow us to comply with our obligations under this Agreement or at Law;

(h)            promptly refer to us any enquiries from persons seeking to purchase the Goods otherwise than as a Permitted Customer (for example, for onselling or wholesale purposes);

(i)              only use the most recent Marketing Materials we provide, and not use any other material to market or promote the Goods; and

(j)              not make any warranty, guarantee or representation about the Goods other than those we expressly provide.

7.4            Resale Price: It is recognised that we have certain knowledge in evaluating market conditions, and developing marketing policy, and may recommend the prices at which you may resell the Goods. Any such recommended retail prices will in no way be binding upon you, and you will be free to determine its own selling price for the Goods; provided, however, you may not establish or otherwise offer, or honour a price or otherwise provide a discount or series of discounts, rebates, or incentives that result in an effective purchase price for a Good that is less than twenty-five percent (25%) of the retail price identified on our retail website for our retail sales of the Good.

7.5            Recall of the Goods: You must give us all reasonable assistance with any recall of the Goods, within the timeframe we require. We will reimburse your reasonable direct costs of assisting with a recall, unless you or your Personnel caused or contributed to the recall.

7.6            You agree to pay our additional costs reasonably incurred as a result of you failing to comply with this clause 7.

8.               Price and Payment

8.1            You agree to pay us the Price and any other amounts due under this Agreement in accordance with the Payment Terms.

8.2            After payment, absolutely no cancellations can be made to the order without our consent. To the maximum extent permitted by law, and without limiting your Consumer Law Rights, the price paid for all cancelled orders is non-refundable.

8.3            We may, from time to time, set minimum order values or quantities for Goods, as notified to you or published on the Site. We are not obliged to accept any Order or Quote Request that does not meet the applicable minimum.

8.4            If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion, and without

8.5            prejudice to any of our rights or remedies under this Agreement or at Law):

(a)             after a period of 5 Business Days from the relevant due date, cease supplying the Goods, and recover, as a debt due and immediately payable from you, our reasonable additional costs of doing so (including all recovery costs);

(b)            charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the relevant due date in accordance with the Payment Terms; and/or

(c)             enter any premises where the unpaid Goods are stored or held, for the purpose of retrieving and taking possession of those Goods, and you agree to provide any access, items and consents required to enable us to do so.

8.6            As an Australian business, we may be required by Law to charge GST on the Price. When applicable, GST payable will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges at the same time you pay us the Price. “GST” has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

8.7            You are responsible for paying any taxes imposed by any government authority relating to your acquisition of the Goods, including but not limited to any customs tax, excise tax, sales tax, use tax, or value added tax.

9.               Security Interest

9.1            You acknowledge and agree that:

(a)             this Agreement is a ‘security agreement’ under the Personal Property Securities Act 2009 (Cth) (PPSA);

(b)            this clause 9.1 creates a security interest in the Goods and any proceeds from any sale or disposal of the Goods, and we are a secured party in relation to the Goods and any such proceeds;

(c)             we are entitled to register our interest on the relevant register as (at our discretion) a security interest, and if applicable, a ‘purchase money security interest’; and

(d)            you must (at your cost), where we request, take all steps that we consider necessary or desirable to assist us to register our security interest, to ensure our security interest in the Goods and the proceeds is enforceable, and to perfect, or better secure our position under this Agreement, or ensure our priority over all other security interests

9.2            Until such time as title in the Goods has passed to you as contemplated under clause 6.1, you must not allow any other person to have or acquire any security interest in the Goods, unless with our prior written consent.

9.3            To the extent the Law permits, you waive your right to receive any notice (including notice of a verification statement) that is required by the PPSA, including but not limited to notices under sections 95, 118, 121, 130, 132, 135 or 157. However, this does not prevent us from giving a notice under the PPSA.

9.4            You must not disclose any information of the kind referred to in section 275 of the PPSA, to the extent permitted under that section.

9.5            Nothing in this clause 1 is intended as an agreement to subordinate a security interest arising under this Agreement and conditions in favour of any person under section 61 of the PPSA.

9.6            In this clause 9, a ‘security interest’ includes any form or lien, encumbrance or a security interest under the PPSA.

9.7            Terms used in this clause 9 but not defined have the same meanings as in the PPSA.

9.8            This clause 9 will survive the termination or expiry of this Agreement.

10.            Intellectual Property

10.1         As between the Parties:

(a)             we own all Intellectual Property Rights in Our Materials;

(b)            you own all Intellectual Property Rights in Your Materials; and

(c)             nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.

10.2         As between the Parties, ownership of all Intellectual Property Rights in any New Materials will at all times vest, or remain vested, in us upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials does not automatically vest in us, you hereby assign all such Intellectual Property Rights to us and agree to do all other things necessary to assure our title in such rights.

10.3         We grant you a non-exclusive, revocable, royalty-free, worldwide, non-sublicensable and non-transferable right and licence, to use Our Materials that we provide to you and the New Materials, solely for your use and enjoyment of the Goods, as contemplated by this Agreement.

10.4         You grant us a non-exclusive, irrevocable, royalty-free, worldwide, non-sublicensable (other than to our related bodies corporate, as that term is defined in the Corporations Act 2001 (Cth)) and non-transferable right and licence to use Your Materials that you provide to us solely for the purpose of performing of our obligations or exercising our rights under this Agreement.

10.5         If you (if you are an individual) or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and will procure that your Personnel) consent to our use or infringement of those Moral Rights.

10.6         This clause 10 will survive termination or expiry of this Agreement.

11.            Confidential Information

11.1         Subject to clause 11.2, each Party must (and must ensure that its Personnel and third party service providers) keep confidential, and not use or permit any unauthorised use of, information provided by the other Party, other than for the purposes of performing its obligations under this Agreement.

11.2         Clause 11.1 does not apply where the disclosure is required by Law, the Confidential Information is in the public domain (other than through breach of this Agreement) or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the disclosing Party ensures the adviser complies with the terms of clause 11.1.

11.3         This clause 11 will survive the termination of this Agreement.

12.            Returns

12.1         We do not accept returns for change of mind. However, you may have rights to a repair, replacement or refund under the Australian Consumer Law (see below).

13.            Australian Consumer Law

13.1         Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Goods by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights at Law, nothing in this Agreement excludes those Consumer Law Rights.

13.2         Subject to your Consumer Law Rights, we provide all material, work and goods (including the Goods) to you without conditions or warranties of any kind, implied or otherwise (including without limitation any implied warranties of merchantability or fitness for a particular purpose), whether in statute, at Law or on any other basis, except where expressly set out in this Agreement.

13.3         If the Australian Consumer Law applies to us as a “manufacturer” (as defined under the Australian Consumer Law), you acknowledge and agree that if the Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, our maximum aggregate liability for any Liability to you in relation to the Goods will be an amount equal to the lowest cost of:

(a)             replacing the Goods;

(b)            obtaining equivalent Goods; or

(c)             having the Goods repaired.

13.4         This clause 12 will survive the termination or expiry of this Agreement.

14.            Liability

14.1         To the maximum extent permitted by Law, but subject to your Consumer Law Rights, you indemnify us, including our officers, directors, managers, partners, members, shareholders, employees, agents, affiliates, successors, and permitted assigns, from and against any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with the Goods or your (or your Personnel’s) use, storage, handling or reselling of the Goods, including without limitation any: 

(a)             any property loss or damage, or personal injury or death, howsoever caused;

(b)            any infringement by you or any of your Personnel of the Intellectual Property Rights of us or a third party; or

(c)             any breach by you (or any of your Personnel) of clauses 7.4(i), 7.4(j) 10 or 11 of this Agreement or any Law.

14.2         Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by Law: 

(a)             neither Party will be liable for Consequential Loss;

(b)            a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and

(c)             except where clause 13.3 applies, our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to the aggregate Price paid by you to us for Goods in the 12-month period immediately preceding the event giving rise to the Liability.

14.3         This clause 14 will survive the termination or expiry of this Agreement.

15.            Customer Complaints

15.1         In the event you receive any complaint or adverse claim about the Goods or their use or any potential product safety issue related to the Good, you must:

(a)             promptly inform us of all the details of the complaint within 5 Business Days of receipt of such complaint;

(b)            allow us access to any documentation or Goods we request in order to investigate the complaint; and

(c)             cooperate with and provide all reasonable assistance to us in dealing with the complaint.

15.2         Any Goods the subject of a customer complaint that are returned to us without our prior written consent will not be credited to you.

16.            Term and Termination

16.1         This Agreement commences on the date you submit your Application and continues until terminated in accordance with this clause 16 (Term).

16.2         Either Party may terminate this Agreement at any time by giving written notice to the other Party, or (in your case) by cancelling your Account, provided no Quote or Order is outstanding at that time.

16.3         This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:

(a)             the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or

(b)            the Defaulting Party goes bankrupt, insolvent or is otherwise unable to pay its debts as they fall due.

16.4         Upon expiry or termination of this Agreement:

(a)             without limiting and subject to your Consumer Law Rights, any payments made by you to us for Goods already supplied are not refundable to you;

(b)            you are to pay for all Goods supplied prior to termination, including Goods which have been supplied and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;

(c)             you agree to grant us such rights of access to any premises where the Goods are located to allow us (or our Personnel) to recover or repossess any Goods which we retain title to;

(d)            by us pursuant to clause 16.3, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees);

(e)             you agree to immediately cease using all Marketing Materials and return all Marketing Materials to us at your own cost, or dispose of the Marketing Materials if directed by us in writing;

(f)              if the Agreement is terminated by us without cause, you may continue to utilise the applicable Marketing Materials with respect to the Goods you have in stock, in accordance with this Agreement for a period of up to 2 months following the depletion of your stock of such Goods;

(g)             we may, at our sole discretion, buy-back any Goods on-hand, which are of merchantable quality, for the same price you paid for those Goods less any handling or delivery fees;

(h)            upon our request, you must provide reasonable assistance and cooperation to us for the purpose of transferring any customers or residual stock of the Goods to a new distributor;

(i)              we may retain your documents and information (including copies) to the extent required by Law or pursuant to any information technology back-up procedure, provided that we handle your information in accordance with clause 11; and

(j)              you agree to promptly return (where possible), or delete or destroy (where not possible to return), any documentation, information or material provided to you by us that is in your possession or control.

16.5         Unless otherwise agreed between the Parties, if this Agreement is terminated:

(a)             by us, any current Order or Quote will also terminate on the date of termination, we will cease supplying the Goods, and we will refund any amount you have paid for Goods not yet supplied; or

(b)            by you, any outstanding Order or Quote will continue in accordance with its terms (and this Agreement) until it is complete or otherwise terminated in accordance with its terms.

16.6         Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it. 

16.7         This clause 16 will survive the termination or expiry of this Agreement.

17.            General

17.1         Amendment: We may update this Agreement at any time by giving you at least 30 days' written notice, including by publishing revised terms on our website. The version of this Agreement that applies to a Quote or Order is the version in effect at the time that Quote or Order becomes binding.

17.2         Assignment: Subject to clauses 17.3 and 17.10, a Party must not assign, novate or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

17.3         Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.

17.4         Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first complying with this clause 17.4. A Party claiming that a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute (Dispute Notice). The Parties must meet (whether in person, by telephone or video conference) within 10 Business Days of service of the Dispute Notice to seek (in good faith) to resolve the Dispute.

If the Parties do not resolve the Dispute within 20 Business Days of the date the Dispute Notice was served (or such further period as agreed in writing by the Parties), either Party may:

(a)             where you are resident or incorporated in Australia, refer the matter to mediation, administered by the Australian Disputes Centre, to be conducted in Lebourne, Victoria, in accordance with the Australian Disputes Centre Guidelines for Commercial Mediation.

(b)            where you are not resident or incorporated in Australia, refer the matter to arbitration administered by the Australian Centre for International Commercial Arbitration, with such arbitration to be conducted in Mornington, Victoria, before one arbitrator, in English and in accordance with the ACICA Arbitration Rules.

Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

17.5         Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:

(a)             as soon as reasonably practical, notifies the other Party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and

(b)            uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.

Where the Force Majeure Event prevents a Party from performing a material obligation under this Agreement for a period in excess of 60 days, then the other Party may by notice terminate this Agreement, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.

17.6         Governing Law: This Agreement is governed by the laws of Victoria.  Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts. The Parties agree that the U.N. Convention on Contracts for the Sale of International Goods is excluded from application to this Agreement.

17.7         Notices: Any notice given under this Agreement must be in writing addressed to the address most recently provided by each Party, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

17.8         Publicity: Despite clause 11, with your prior written consent, you agree that we may advertise or publicise the broad nature of our supply of the Goods to you, including on our website or in our promotional material.

17.9         Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

17.10      Subcontracting: We may subcontract the supply of any part of the Goods without your prior written consent.  We agree that any subcontracting does not discharge us from any liability under this Agreement and that we are liable for the acts and omissions of our subcontractor.

18.            Definitions

In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the the Agreement, Order, Quote and as set out below:

Account means the wholesale account on our Site, which you use to place Orders or submit Quote Requests for the Goods in accordance with this Agreement.

Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.

Agreement means these terms and conditions and any agreed Order or Quote issued under it and any documents attached to, or referred to in, each of them.

Business Day means a day on which banks are open for general banking business in Melbourne, Victoria, excluding Saturdays, Sundays and public holidays.

Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us the Price will not constitute “Consequential Loss”.

Consumer Law Rights has the meaning given in clause 13.1.

Delivery Point means the location which you provide in the Order or Quote for us to deliver the Goods.

Goods means the goods to be supplied as set out in the Order or Quote, as adjusted in accordance with this Agreement.

Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.

Intellectual Property Rights or Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.

Law means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement or the supply of the Goods.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.

Marketing Materials means any marketing or promotional materials we provide to you for use in connection with the marketing, advertising or promotion of the Goods.

Moral Rights has the meaning given in the Copyright Act 1968 (Cth) and includes any similar rights in any jurisdiction in the world.

New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with this Agreement or the supply of the Goods, whether before or after the date of this Agreement and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials and Your Materials.

Order has the meaning given in clause 4.1.

Our Materials means all Intellectual Property which is owned by or licensed to us, including the Marketing Materials, and any improvements, modifications or enhancements of such Intellectual Property, but excludes New Materials and Your Materials.

Payment Terms means the payment method, timing and any credit terms applicable to your purchase of Goods, as set out in your Application, the relevant Order or Quote, our invoice, or as otherwise agreed in writing between the Parties.

Permitted Customers means the customers, clients or members of your business, as approved by us in connection with your Application (or as otherwise agreed by us in writing).

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.

Price means the price set out in the Order or Quote, as adjusted in accordance with this Agreement.

Quote has the meaning given in clause 4.2.

Quote Request has the meaning given in clause 4.2.

Site means our wholesale portal in which you may make Orders and manage your Account.

Your Materials means all Intellectual Property owned or licensed by you or your Personnel before the commencement of this Agreement (which is not connected to this Agreement) and/or developed by or on behalf of you or your Personnel independently of this Agreement and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials and New Materials.