Website Terms of Use

In this agreement unless inconsistent with the context or subject matter:

Approved Trade Channels means the approved trade channels as agreed by the parties from time to time in accordance with this agreement, including approved physical stores, Customer owned e-commerce websites and temporary storefronts such as pop-ups and at events.

Confidential Information means all commercially valuable or sensitive information in whatever form, including know-how, financial information, customer lists, industry contacts, pricing, processes, product formulations, business plans, new product information, project information, techniques, designs, samples, patents, trade secrets, and any other materials or information of whatever description which a party regards as confidential, proprietary or of a commercially sensitive nature, but excludes information that a party:

1. is already lawfully in the public domain or enters the public domain otherwise than as the result of an unauthorised disclosure;
2. can establish is known by, or, in a party’s possession or control, other than through a breach of this agreement and is not subject to any obligation of confidence; or
3. is required by law to disclose or retain, but only to the extent that the law requires such disclosure or retention.

Force Majeure Event means an event, circumstance or cause beyond a party's reasonable control, including (but not limited to) strikes, lock-outs or other industrial action; civil commotion, riot, invasion, cyber-attack, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war; fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, health emergencies, disease, or other natural disaster; unavailability of stock or supplier delays; impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; interruption or failure of utility services (including the inability to use public or private telecommunications networks); and the acts, decrees, legislation, regulations or restrictions of any Government Agency. However, it does not include a lack of funds.

Insolvency Event means any insolvency related event that is suffered by a party including without limitation where:

1. the party is insolvent as defined by or presumed by an applicable law;
2. the party ceases to be able to pay its debts as they fall due;
3. any step is taken to appoint a liquidator, administrator, controller, receiver or trustee in bankruptcy to the party;
4. any step is taken to wind up, dissolve or declare bankruptcy of the party;
5. the party ceases to carry on business or threatens to do so, other than in accordance with this agreement; or
6. in the case of an individual, becomes bankrupt or ceases to carry on business.

Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks, designs, circuit layouts, data and databases, the right to keep Confidential Information confidential, know-how, and all other rights resulting from intellectual activity.

Loss means any loss, liability, cost, charge, expense, tax, duty or damage of any nature whatsoever, including special, incidental, or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).

Price List means the prices of the Supplier’s Goods as applicable from time to time, as listed on the Supplier’s Website at https://www.b2b.splosh.com.au, in digital and printed catalogues published by the Supplier and through the order-taking platform Pepperi accessible at https://www.pepperi.com.

Supplier Intellectual Property means all Intellectual Property Rights in the Goods, any literature, advertising or promotional materials supplied by the Supplier about the Goods, and any other materials supplied under this agreement by the Supplier to the Customer.

Supplier Trade Marks means any registered or unregistered trade marks owned by the Supplier, including but not limited to the Australian trade mark registration nos. 2141342, 1452733, 2192373, 2105983, 2236241, 2203347, 2250649 and 2337383, the New Zealand trade mark registration nos. 1187420, 1187422, 1187776, 1198063, 1203390 and 1232271, the Canadian trade mark registration nos. TMA1314920 and TMA1224358, and the international registration nos. 1609364 and 1758331.

Stockist Application Form means the online form available on the Supplier’s Website at /become-a-stockist-au.

Trade Mark and Brand Policy means any policy regarding the use of the Supplier’s brand, the Supplier Trade Marks and other copyright-protected materials, as notified by Supplier to Customer from time to time.

Unapproved Trade Channels means any trade channels which are not Approved Trade Channels, or any unapproved trade channels as made known by the Supplier to the Customer from time to time in accordance with this agreement. As at the date of this agreement, the Unapproved Trade Channels include but are not limited to the following (and the Customer must not market, promote or sell the Goods from such channels):

1. third-party online marketplaces, including but not limited to Amazon, eBay, Kogan, Etsy, Big W Marketplace, Kmart Marketplace, Bunnings Marketplace, TEMU Marketplace, Myer Marketplace, Baby Bunting Marketplace and similar websites;
2. drop-shipping platforms;
3. classified websites, including but not limited to Facebook Marketplace, Gumtree and similar websites;
4. social media websites and messaging platforms; and
5. discount or bargain stores or outlets.

Website means the Supplier’s websites at https://www.splosh.com.au and https://www.splosh.co.nz and their related subdomains, portals and websites.

In this agreement the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:

1. References to parties are references to the parties to this agreement and include those parties’ permitted assignees, successors, executors, administrators and legal representatives.
2. A reference to any agreement or document (including this agreement) includes any amendments to or replacements of that document.
3. A reference to a law includes legislation, regulations, judgments, principles of common law or equity, and any amendment or replacement of such law.
4. Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of and binds them jointly and each of them severally.
5. A reference to an amount of dollars or $ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.
6. Specifying anything in this agreement after the terms 'include', 'including', 'includes', 'for example', 'such as' or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.

2.1 Except where otherwise agreed by the parties in writing, this agreement will become binding on the parties upon (a) the Customer ticking a box expressly labelled to indicate acknowledgment of the terms of this agreement, via the Website or such other online portal or platform to which the Customer is directed; or (b) the Customer giving instructions to the Supplier to proceed, by placing a Purchase Order or otherwise; or (c) the parties signing it.

2.2 The terms of this agreement may be applied separately to any range of Goods specified by the Supplier from time to time, or collectively to multiple specified ranges or to all of the Supplier’s Goods, as the case requires.

2.3 In the event of any inconsistency between the terms of this agreement and any other agreement between the parties proposed by the Customer, the terms of this agreement will prevail.

3.1 The Customer must (and to the extent applicable, must ensure that its personnel):

1. only sell the Goods to end users and through the Approved Trade Channels;
2. not do any act or thing which may adversely affect the reputation of the Supplier or the Goods;
3. comply with the reasonable directions and instructions of the Supplier in respect of the performance of its obligations under this agreement, including requests for information;
4. use its best efforts to retain the goodwill of the Goods;
5. provide and keep the Supplier up-to-date with current and accurate details of its business, including but not limited to all retail store addresses, online store URLs and contact details;
6. only use the Supplier Intellectual Property in accordance with the licence granted by this agreement and with acknowledgement of the Supplier’s ownership; and
7. not use the Supplier Intellectual Property by itself or in relation to any products not produced, provided or supplied by the Supplier.

3.2 The Customer acknowledges that the Goods adhere solely to Australian and New Zealand product compliance standards and that, where the Customer is not based in Australia or New Zealand, the Customer must, at its own expense, conduct any necessary product testing to ensure the Goods’ compliance with any applicable regulatory requirements and laws.

4.1 Each order for Goods placed with the Supplier by the Customer (Purchase Order) shall:

1. be made by written request through the Supplier’s sale representatives or online wholesale portal, in an email to the Supplier, or through another approved ordering channel as prescribed by the Supplier from time to time; and
2. include the Customer’s trading name, delivery address, contact details and any relevant Purchase Order number.

4.2 The parties acknowledge that the Supplier may, at its sole discretion, reject any Purchase Order or suspend any pending Purchase Order or supply of Goods, in part or in whole, at any time and for any reason including but not limited to the Customer’s breach of this agreement.

4.3 Within a reasonable time after receipt of a Purchase Order, the Supplier will confirm whether the Purchase Order is accepted or not by issuing an order confirmation, invoice or dispatch notification.

4.4 Purchase Orders are processed on a first-come, first-serve basis and the supply of Goods under accepted Purchase Orders remains subject to availability and, where applicable, credit approval and compliance with the terms of credit under clause 6.

4.5 The Supplier may withdraw, modify or discontinue any Good or range of Goods, at its discretion, at any time. Where Goods, including any range of Goods specified by the Supplier, are not available for any reason, including but not limited to where the Goods are discontinued or temporarily out of stock, the Supplier may, at its discretion:

1. cancel all or part of a Purchase Order, in which case the Supplier will amend the Purchase Order to reflect the change;
2. substitute the unavailable Goods with like items, unless the Customer instructs otherwise as soon as practicable after being notified by the Supplier of the lack of stock; or
3. create a backorder, unless the Customer instructs otherwise as soon as practicable after being notified by the Supplier of the lack of stock, the Customer acknowledging in the event of a backorder that:
   1. backorders which fall below the Minimum Order Value after processing may, at the Supplier’s discretion, be held until further stock is ordered;
   2. backorders are invoiced at the prices contained in the then current Price List at the time the corresponding Purchase Order was placed; and
   3. either party may cancel backorders which remain unfulfilled for a period exceeding 90 days or where the associated Goods have been discontinued, and in either case will notify the other party of this cancellation.

4.6 Minimum Order Value

1. The Customer agrees that each Purchase Order will be for Goods the price which at least equals the minimum order value of $500.00, exclusive of GST (Minimum Order Value).
2. If the total price of the Goods ordered in a Purchase Order is less than the Minimum Order Value, then except to the extent the shortfall in volume purchased was caused by the Supplier's default or by a Force Majeure Event, the Supplier may, at its discretion:
   1. review the Minimum Order Value, and adjust the Minimum Order Value based on market conditions;
   2. reject and refuse to process the Purchase Order; and/or
   3. provide the Customer with notice in writing or via phone requiring the Customer to rectify the shortfall within 30 days, and if the Customer fails to do so by the expiry of the notice period, the Supplier retains the right to reject and refuse to process the Purchase Order.
3. The Supplier may adjust the Minimum Order Value at any time by providing 30 days’ notice to the Customer, such adjustment taking effect at the expiry of the notice period unless, at least 1 day prior to expiry, the Customer provides written notice to the Supplier of its refusal of the adjustment.

4.7 Changes or Cancellation of Orders

1. Once the Supplier has confirmed acceptance of a Purchase Order, the Customer may not make any further changes or otherwise cancel the Purchase Order or any part of it except with the written consent of the Supplier.
2. Where a Purchase Order is cancelled after the associated Goods have been dispatched, the Supplier may, at its discretion, charge the Customer a cancellation fee equal to 10% of the value of the invoice issued for the Purchase Order and pass on to the Customer any freight and administrative costs reasonably incurred in the dispatch and return of the dispatched Goods;
3. The Supplier is not liable for any Loss arising from cancellation of a Purchase Order.

5.1 Once a Purchase Order is accepted, the Supplier will use its best endeavours to supply the Goods to the Customer as requested.

5.2 The Goods are to be delivered by the Supplier to the delivery site agreed between the parties and, where a date for dispatch is agreed, dispatched on such agreed date. Any timelines provided by the Supplier to the Customer in respect of the delivery or dispatch of the Goods are estimates only, and the Supplier will not be in breach of this agreement in the event that it is unable to procure delivery or dispatch by the communicated date. The Supplier will not be liable for any Loss suffered by the Customer in the event of delay. Late delivery or dispatch of the Goods does not entitle the Customer to:

1. refuse to take delivery of the Goods;
2. claim damages; or
3. terminate this agreement.

5.3 Delivery is deemed to occur when the Goods are delivered to the delivery site agreed between the parties or collected by the Customer from the Supplier’s warehouse.

5.4 Risk in the Goods shall pass from the Supplier to the Customer at the time of the Supplier’s delivery to the delivery address or the Customer’s collection of the Goods from the Supplier.

5.5 The Customer must accept delivery of the Goods on the date on which delivery is made. The Supplier will not be liable for any Loss arising from the Customer’s non-acceptance of Goods delivered in accordance with this agreement.

5.6 The Customer must ensure, at the time of delivery, the availability of an adequate means of access to the agreed delivery site and the presence of suitable personnel to receive and check the delivered Goods.

5.7 Without limitation to any other clause of this agreement, where delivery is to be made without signature on delivery as per prior written agreement between the parties, the Supplier accepts no responsibility in the event the delivery site agreed between the parties is left unattended at the time of delivery of the Goods.

5.8 Where the Customer elects to arrange delivery independently from the Supplier, the Supplier will not be liable for any Loss to the Goods which occurs during delivery or any additional costs incurred as a result.

6.1 Accounts and Payment Arrangements

1. At the time of entering this agreement, the Customer must complete and submit to the Supplier a Stockist Application Form. Following receipt of the submitted Stockist Application Form, the Supplier will process it and either:
   1. approve it and open an Account, as defined in clause 6.1(b)(i), for the Customer;
   2. reject it and offer a Prepaid Arrangement, as defined in clause 6.1(b)(ii), to the Customer; or
   3. reject it for any reason and refuse to proceed.
2. Prior to execution of this agreement and only once a Stockist Application Form has been submitted by the Customer under clause 6.1(a), the parties must agree for payments under this agreement to be made on the basis of one of the following arrangements:
   1. an account (Account), being billed either:
      1. directly to the Customer (Direct Account); or
      2. centrally to a head office or other entity (Responsible Office) which is responsible for executing payment on behalf of the Customer whether or not Customer has paid the Responsible Office for the Goods (Indirect Account); or
   2. only upon an offer made by the Supplier at its sole discretion, a prepaid arrangement, the terms of which are to be agreed by the parties in writing prior to execution of this agreement (Prepaid Arrangement).
3. Where the Customer holds an Account:
   1. the Supplier will notify the Customer in writing of the approved credit limits and terms, which the Customer must not exceed unless permitted by the Supplier in writing;
   2. the Supplier may increase or decrease the Customer’s approved credit limits at any time by providing the Customer with notice in writing; and
   3. subject to the Customer’s consent where required by the applicable laws, the Supplier may obtain credit reports and trade references relating to the Customer and share the Customer’s relevant payment history with credit reporting agencies and other credit providers.
4. Where the Customer is the holder of an Indirect Account:
   1. the Responsible Office is wholly responsible for all debts incurred by and payments required of the Customer under this agreement, notwithstanding any failure or delay on the part of the Customer in providing that entity with the necessary funds or taking any other steps regarded by that entity as necessary for the performance of the Customer’s payment obligations;
   2. in addition to the Accounts held by any Customers for which it is responsible, the Responsible Office must hold an independent Account which may only be used for the purposes of administration, reporting and communication and must not be used to place Purchase Orders;
   3. each Customer for which a Responsible Office is responsible must hold its own Indirect Account, which will be linked by the Supplier to the Responsible Office’s administrative Account referred to in clause 6.1(d)(ii);
   4. in the event that the Responsible Office advises the Supplier that it will not longer accept liability for the Customer, the Indirect Account is immediately closed and the Customer must submit a new Stockist Application Form in order to continue its relationship with the Supplier, in which case:
      1. the relationship between the parties will operate on the basis of a Prepaid Arrangement until the Stockist Application Form is approved by the Supplier; and
      2. any Purchase Order placed by the Customer during the period referred to in clause 6.1(d)(iv)(A) will require full upfront payment prior to dispatch; and
   5. For the purposes of eligibility for rebates and other benefits under clause 6.13, the Responsible Office and all Customers for which it is responsible are collectively treated as a single entity.

6.2 The Supplier may, at its discretion, impose additional charges for costs including but not limited to those incurred due to inadequate or incorrect information provided by the Customer, late changes made to a Purchase Order, special packing or delivery requirements, urgent courier services, storage of Goods, return carriage, and any other cost reasonably incurred by the Supplier.

6.3 The Supplier will issue the Customer with an invoice in respect of a Purchase Order placed for all amounts payable by the Customer for that Purchase Order (Invoice):

1. where the Customer holds an Account, upon dispatch of the associated Goods;
2. where the Customer has a Prepaid Arrangement, prior to dispatch of the associated Goods.

6.4 The Customer must pay:

1. the price for each Good as specified in the Invoice pursuant to its then current Price List at the time the Purchase Order is placed; and
2. the costs associated with the delivery of and insurance for the risk during transit to the Goods, as arranged by the Supplier, as specified in the Invoice.

6.5 The Customer must pay each Invoice according to the terms of the Account or Prepaid Arrangement agreed between the parties, including but not limited to those relating to due dates for payments. Where the Customer has a Prepaid Arrangement, the Customer acknowledges that the Goods associated with the Purchase Order will not be dispatched until payment of the Invoice to which the Purchase Order relates has been received in full by the Supplier.

6.6 All amounts received, due and payable to the Supplier are to be paid in cleared funds via direct deposit or credit card payment, or via other methods as approved by the Supplier from time to time. The Customer acknowledges that a surcharge may apply to payments made by credit card or other non-standard payment methods. Payments must be made in full without deduction, set off, or counterclaim. Payment is taken to have been made only once the funds are received in the Supplier’s nominated bank account.

6.7 The Supplier may, at its sole discretion, apply any payment received from the Customer to any amount payable by the Customer to the Supplier. Where a Customer makes a repayment of an overdue amount, notwithstanding any preference of the Customer, the payment will be applied by the Supplier to the amount which has been outstanding for the longest period unless the parties agree otherwise in writing or the Supplier elects otherwise.

6.8 Title to Goods supplied under any Purchase Order shall only pass from the Supplier to the Customer upon full payment of all outstanding amounts, including amounts associated with other Purchase Orders and any additional charges as referred to in clause 6.2. Until title to Goods passes in accordance with this clause, the Customer holds the Goods as bailee for the Supplier and the Supplier retains the right to, without prior notice, enter any premises where the Goods are stored to repossess them, and may resell the Goods at its discretion to recover any outstanding amounts.

6.9 The Supplier reserves the right to increase the price and the Price List on providing the Customer with 30 days’ written notice.

6.10 Unless otherwise agreed by the parties in writing, freight costs charged to the Customer will be calculated separately for each Purchase Order taking into account the delivery site agreed between the parties and the overall weight and dimensions of the Goods purchased.

6.11 The parties agree to comply with their obligations under any applicable laws governing GST, including but not limited to the A New Tax System (Goods & Services Tax) Act 1999 (Cth).

6.12 Late Payments

1. If payment is not made in accordance with the terms of this agreement, the Supplier at its sole discretion may:
   1. suspend supply of the Goods to the Customer until all outstanding monies, including any accrued interest, are paid in full;
   2. vary the payment terms to require the Client to pay amounts in advance or on deposit and the Client is deemed to have accepted such payment terms;
   3. where the Customer holds an Account, withdraw credit facilities or close the Customer’s Account and require that future payments be made on the basis of a Prepaid Arrangement; and/or
   4. terminate this agreement whereupon all amounts that are payable under this agreement which are unpaid will be immediately due and payable.

6.13 Rebates, Concessions and Performance Review

1. The Supplier may, at its sole discretion, offer rebates, discounts, concessions and other trade benefits, including waivers of freight costs, to the Customer at any time by communicating this offer to the Customer in writing, subject to any conditions specified by the Supplier which it sees fit.
2. The Customer acknowledges that an offer of a benefit under this clause may, but is not required to be linked to performance criteria reviewed under clause 6.13(c)(i), and the Customer’s performance of actions previously indicated to have prompted a prior offer does not obligate the Supplier to make any subsequent offer.
3. The Customer acknowledges that:
   1. the Supplier may monitor and review the Customer’s performance, including but not limited to order sales, frequency, sell-through, compliance with brand standards and performance of payment obligations;
   2. the Supplier may monitor and review the Customer’s compliance with this agreement; and
   3. upon the Supplier’s request, the Customer must provide sell-through data, sales records, financial records or any other information or records reasonably required by the Supplier for the purpose of monitoring, reviewing or verifying the Customer’s performance or compliance under this clause.
4. Any offer of a benefit under this clause may be varied or withdrawn by the Supplier at any time for any reason, including but not limited to changes in the Customer’s performance or to the terms of this agreement.
5. The amount of any rebate offered under this clause shall be calculated based on the net amount of the Customer’s sales for the period specified by the Supplier in its offer, less any applicable credits or discounts.
6. No rebate or other benefit offered under this clause will be applied to an Account with overdue payments, however the Supplier may, at its sole discretion, offset a benefit against any outstanding amount payable by the Customer.

7.1 Recommended Retail Pricing
The Supplier may publish recommended retail pricing which is to be used as a guideline only. The Customer is responsible for determining the price at which it sells the Goods and is not bound to accept any recommendations.

7.2 Terms of sale

1. The Customer must not alter or tamper with the Goods, their labelling or packaging in any way.
2. The Customer must not make any representation or give any warranty in relation to the Goods not expressly authorised by the Supplier in writing.
3. Unless otherwise agreed or required by law, all contracts and dealings with the end user, including costs associated with freight of the Goods to the end user, are the responsibility of the Customer and not the Supplier.

7.3 Trade Channels

1. The Customer must only market and/or sell the Goods through the Approved Trade Channels. The Supplier reserves the right to vary the Approved Trade Channels and Unapproved Trade Channels from time to time on giving at least 60 days’ written notice to the Customer.
2. The Customer must only sell the Goods to end users and must not sell the Goods to wholesalers, resellers or third-party websites, except with the prior written consent of the Supplier.
3. The Supplier reserves the right to cease supply or suspend Purchase Orders or terminate this agreement upon the Customer’s breach of this clause.

7.4 Display Materials

1. Any display units, shelving or fixtures provided by the Supplier at no additional cost to the Customer (Display Materials) remain the property of the Supplier and may only be used by the Customer for the purpose of displaying or promoting the Supplier’s Goods.
2. The Customer must not sell, alter or dispose of Display Materials without the Supplier’s prior written consent.
3. The Supplier may, at its sole discretion, require the Customer to remove, dispose of, permit inspection of or return any Display Materials provided, at any time including after the termination of this agreement.
4. Where the Supplier requires return of Display Materials under clause 7.4(c), the Customer must comply with all reasonable requests made by the Supplier for this purpose, including but not limited to return delivery or preparation and packaging of the Display Materials for collection. Any associated costs of collection or return delivery will be borne by the Supplier. If the Customer refuses or fails to comply with any request made by the Supplier under this clause, the Customer will be liable to the Supplier for the cost of any Display Material not recovered and for any additional costs incurred as a result of the Customer’s refusal.

8.1 The Supplier warrants that the Goods will be reasonably fit for any disclosed or represented purpose (Goods Warranty). The Customer acknowledges that minor variations in colour, design or packaging that do not materially affect the use or value of a Good are not considered a breach of this warranty.

8.2 No returns or exchanges of Goods or awards of credit will be permitted for change of mind, over-ordering or failure to sell except as expressly permitted by the terms of this agreement.

8.3 The Customer must inspect all Goods immediately on receipt and within 28 days of the date of the associated Invoice, notify the Supplier of any Good that breaches the Goods Warranty via the online credit request form available from the Supplier’s Website at https://www.b2b.splosh.com.au/credit-request-form. The Customer’s written notice must include sufficient details of the relevant Invoice and Good to enable their identification by the Supplier.

8.4 If no notice is received by the Supplier within 28 days of the date of the associated Invoice, the Goods will, to the extent permitted by law, be deemed to have been accepted in full by the Customer.

8.5 The Customer must provide any photographic evidence or supporting documentation requested by the Supplier to prove the breach of the Goods Warranty of which complaint is made.

8.6 The Customer must allow the Supplier to inspect the Good to determine whether the Good does not comply with the Goods Warranty, which may include the Customer sending the Good back to the Supplier at the Customer’s cost. If the Supplier accepts that the Good is in breach, the Supplier will pay the Customer’s costs of returning the Good, provided that such costs had been agreed by the Supplier before the Good was returned.

8.7 The Customer must not return any Good to the Supplier without the Supplier’s written request or approval. Any Goods approved for return must be returned in their original condition, being undamaged, in their original packaging and suitable for resale.

8.8 If the Supplier is notified of a Good which breaches the Goods Warranty and agrees that it is in breach (acting reasonably), then the Supplier will, at its option, either:

1. replace the Good with a Good that complies with the terms of this agreement;
2. provide a full refund for the Good;
3. provide the Customer with credit equal to the value of a refund of the Good; or
4. repair the Good, and return the Good to the Customer.

8.9 Notwithstanding the above clauses, the Supplier will not be liable for or required to accept any return for any breach of the Goods Warranty or damage where such breach or damage is caused or partly caused by fair wear and tear, the Customer’s acts, omissions or instructions not expressly required by this agreement, or any circumstance outside the reasonable control of the Supplier.

8.10 The Customer must notify the Supplier as soon as practicable after becoming aware of any claim made against the Customer arising out of or in connection with the Goods’ sale, supply, breach of warranty or damage.

9.1 If the Customer is the subject of a request, court order or other directive of a government agency to recall or withdraw any Goods from the market (Recall Notice) it must immediately notify the Supplier in writing and enclose a copy of the Recall Notice.

9.2 Unless required by law, the Customer must not undertake any recall or withdrawal of the Goods from the market without the written permission of the Supplier.

9.3 If any Goods are the subject of a Recall Notice, or the Supplier has other reasonable grounds to recall or withdraw the Goods from the market, the Customer must comply strictly with any requirements set out in the relevant Recall Notice and the Supplier's instructions about the process to implement the recall or withdrawal.

9.4 For the purposes of clause 9.3, reasonable grounds for the Supplier to recall or withdraw the Goods include, but are not limited to where:

1. supply or use of the Goods infringes, or may infringe, a third party's Intellectual Property Rights;
2. the Goods are, or may be, unsafe; or
3. the Goods’ breach of the Goods Warranty may cause harm to the Supplier's reputation or brand.

10.1 Standard supply

1. The Customer must only sell the Goods under the Supplier’s brand and comply with the Trade Mark and Brand Policy, and any other brand guidelines provided by the Supplier, at all times. The Customer must only use the marketing, promotional and packaging materials which are provided or approved by the Supplier. The Customer is strictly prohibited from altering and/or modifying such materials without the approval of the Supplier, and must not re-SKU, re-label, bundle or otherwise relist the Goods without the Supplier’s prior written consent.
2. The Customer must ensure that the Customer’s actions do not damage the reputation of the Supplier and are not likely to confuse customers about the brand origin of the Goods.
3. The Customer must only sell the Goods in their original condition.
4. The Customer must not use the Supplier Trade Marks, any trade marks in which the Supplier holds exclusive distribution rights, or the Supplier’s trade names or product names in any of the Customer’s domain names, social media handles or company or business names without the prior written consent of the Supplier.

11.1 The parties acknowledge and agree that in entering into this agreement they are doing so as independent contractors and that neither this agreement nor the provision of the Goods or the Intellectual Property will create any relationship of partnership or joint venture between the Supplier and the Customer.

12.1 The Customer hereby assigns to the Supplier all Intellectual Property Rights from the date of their creation, which subsist in or may be obtained from any materials created by the Customer in connection with the Goods, and will promptly sign all documents and do all things necessary to register, vest or transfer any interest or ownership in such additional or further intellectual property to the Supplier.

12.2 Supplier Intellectual Property

1. The Supplier Intellectual Property is the property of the Supplier. The Customer must not claim a right or property in any Supplier Intellectual Property or any imitation of it or try to register any of the Supplier Intellectual Property as their own rights in any part of the world.
2. The Customer must not:
   1. take or permit or omit any action which might invalidate, put in dispute or support the removal of the Supplier’s title to any of the Supplier Intellectual Property;
   2. use, copy, reproduce, distribute, export, adapt, alter, modify, translate, create derivate works, or publicly display any of the Supplier Intellectual Property anywhere in the world, without the prior written consent of the Supplier;
   3. tamper with, remove or obliterate any trade marks or copyright warning notices that are on the Goods or their packaging.
3. The Supplier grants the Customer a revocable, non-exclusive, non- transferable licence to use the Supplier Intellectual Property solely for the purpose of fulfilling its obligations under this agreement.

12.3 Continuous Obligations
The obligations contained in this clause shall survive termination of this agreement and endure for so long as a party shall have an interest in any or all of its Intellectual Property Rights.

13.1 Each party (Recipient) owes to the other party a duty of confidence in respect of the Confidential Information whereby all Confidential Information is to be maintained in confidence by the Recipient, is not to be disclosed to any third party, and is to be protected with reasonable care, except where:

1. the disclosure is expressly permitted or necessarily required by this agreement;
2. the disclosure is made to the Recipient’s personnel to the extent necessary to enable the Recipient to properly perform its obligations under this agreement or to conduct its business generally, in which case the Recipient must ensure that such persons do not disclose the information to any other person;
3. the disclosure is required for use in legal proceedings regarding this agreement; or
4. the party to whom the Confidential Information relates has provided prior written consent to the disclosure.

13.2 Each Recipient must ensure that its personnel, representatives and related entities comply in all respects with the Recipient's obligations under this clause.

14.1 Subject to the other terms of this clause, the Supplier’s maximum aggregate liability to the Customer for any Loss arising out of or in connection with this agreement, including any breach by that party of this agreement however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual amount paid by the Customer to the Supplier under this agreement in respect of the Goods, Purchase Order or event giving rise to the claim.

14.2 The Customer indemnifies the Supplier against any Loss arising from or in relation to:

1. the Customer’s breach of the terms of this agreement;
2. any negligence on the part of the Customer in relation to the Goods; or
3. any public statement, announcement or communication made by the Customer in relation to the subject matter of this agreement without the prior written consent of the Supplier.

14.3 Without limitation to the other terms of this agreement, each party excludes any liability to the other party, whether in contract, tort (including negligence) or otherwise, for any Loss arising under or in connection with this agreement.

14.4 Notwithstanding anything else in this clause, each party’s liability will be reduced to the extent the Loss is caused by or contributed to by the other party or their personnel.

15.1 Termination for cause

1. Either party may, by written notice to the other party, immediately terminate this agreement or one or more Purchase Orders:
   1. if the other party breaches any term contained in this agreement and either:
      1. the breach is irremediable; or
      2. the breach is able to be remedied, and the breaching party fails to remedy that breach within 30 days of being given notice to do so; or
   2. to the extent permitted by law, if the other party suffers an Insolvency Event.
2. The Supplier may, by written notice to the Customer, immediately terminate this agreement or one or more Purchase Orders if the Customer obtains credit by fraud or dishonesty.

15.2 Termination without cause
Either party may terminate this agreement without cause by providing 30 days’ written notice to the other party.

15.3 This agreement will apply to each Purchase Order made under it. Termination of a Purchase Order does not automatically terminate this agreement.

16.1 On termination of this agreement:

1. the Customer may continue to sell any Goods purchased prior to termination and use the intellectual property until such Goods are sold;
2. the Supplier will accept no further Purchase Orders, and for outstanding Purchase Orders that have been accepted and are in production, the Supplier may:
   1. fulfil such Purchase Orders, in which case, the terms of this agreement will continue until the completion of those Purchase Orders;
   2. if requested by the Customer, cancel an outstanding Purchase Order, in which case the Customer will be liable for costs incurred by the Customer as a result of such cancellation;
   3. cancel outstanding Purchase Orders without the request of the Customer; and
3. all amounts owed to the Supplier by the Customer under this agreement become immediately due and payable.

16.2 Expiry or termination of this agreement for any reason does not affect any rights of the parties accrued prior to termination or the provisions of any clauses which by their nature survive termination.

17.1 The Supplier will not be in breach of this agreement or liable to the Customer for any Loss incurred by that other party as a direct result of the Supplier failing or being prevented, hindered or delayed in the performance of its obligations under this agreement where such prevention, hindrance or delay results from a Force Majeure Event.

17.2 If a Force Majeure Event occurs, the Supplier must notify the Customer in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay or other consequences.

17.3 On providing the notice in clause 17.2, the Supplier may, at its discretion:

1. extend the time for performance of the affected obligations for a period equivalent to the period during which performance has been delayed, hindered or prevented;
2. suspend or modify performance of the affected obligations; or
3. terminate the affected Purchase Order or this agreement, without liability.

17.4 To the extent the affected obligations remain in force under clause 17.3, the performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.

18.1 The Customer shall not assign its rights or obligations under this agreement without obtaining the Supplier’s prior written consent, which must not be unreasonably withheld.

19.1 Any dispute arising between the parties in connection with this agreement must initially be referred to senior management of both parties by a party giving notice to the other party of the dispute. Within 30 business days of notice being given (or such other period as agreed), each party must use its best efforts to resolve the dispute in good faith.

19.2 If the dispute is not resolved within 30 business days of notice being given, the parties agree to refer the dispute to mediation conducted by the Australian Commercial Disputes Centre, in accordance with the ACDC Guidelines for Commercial Mediation. Neither party may commence legal proceedings, except for interlocutory relief, until 30 business days has passed since the appointment of a mediator without resolution of the dispute.

19.3 Despite the existence of a dispute, both parties must continue performance of their obligations under this Agreement in accordance with its terms.

19.4 Any information exchanged during the dispute resolution process is confidential and may only be used for the sole purpose of resolving the dispute, unless required otherwise by law or a court order.

20.1 Variation
An amendment or variation of any term of this agreement must be in writing and signed by each party.

20.2 No Waiver

1. No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this agreement unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
2. Words or conduct referred to in clause 20.2(a) include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
3. A single exercise of a right under this agreement does not prevent the further or subsequent exercise of that or any other right.

20.3 Assignment, Novation and Other Dealings
Any rights of a party that arise out of or under this agreement are not assignable or capable of novation by that party without the prior written consent of the other party, whose consent must not be unreasonably withheld.

20.4 Severability

1. If the whole or any part of a provision of this agreement is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not and any remaining provisions remain in full force and effect.
2. Clause 20.4(a) does not apply if the severance of a provision of this agreement in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under this agreement.

20.5 Entire Agreement

1. This agreement, together with any written variations signed by both parties, states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, representations, understandings, negotiations and discussions in respect of its subject matter.
2. Where multiple agreements have been signed by the parties in relation to the same Goods supply arrangement and relationship referred to in this agreement, this agreement shall prevail to the extent of any inconsistency unless expressly agreed otherwise by the parties in writing.

20.6 No Reliance
No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in this agreement. All advice, recommendations and information provided by the Supplier in relation to any Goods is given in good faith but without warrant or liability.

20.7 Notices

1. A notice, consent or other communication under this agreement is only effective if it is in writing and sent to the addressee by mail or email to the address specified in the Particulars of this agreement or the Stockist Application Form.
2. A notice, consent or other communication that complies with this clause is regarded as received:
   1. if sent by mail, on the second business day after posting; or
   2. if sent by email, by 4.00pm Australian Eastern Standard Time the day of sending, unless sent on a non-business day, in which case by 4.00pm Australian Eastern Standard Time on the next business day.
3. Either party may update its contact details for the purpose of notices by providing written notice to the other party.

20.8 Governing Law and Jurisdiction
This agreement is governed by the law in force in Queensland, Australia. Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in Queensland, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement.