1. DEFINITIONS & INTERPRETATION
1.1 Definitions
In these Wholesale Terms and Conditions (Terms) unless inconsistent with the context or subject matter the following terms have the corresponding definitions:
(a) Account: the Retailer’s Account to access and use the portion of the Website designated for wholesale ordering.
(b) Address for Service: a party’s email address or address for service advised by a party to the other in writing from time to time. For the Retailer this will be the address set out in their Account.
(c) Applicable Laws: any laws, orders, by-laws and regulations made thereunder in any way governing or affecting the distribution and sale of the Goods.
(d) Australian Consumer Law: the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
(e) Authorised Address: means such locations as the Retailer is authorised to sell the Goods from, and as that term is defined under clause 3.3.
(f) Commencement Date: the date these Terms become binding on the parties.
(g) Confidential Information: all information (in any form) relating to or arising from the supply of Goods, the manufacturing or distribution of the Goods or these Terms, including without limitation trade secrets, methods, strategies, client and manufacturing lists, product details, pricing and other business processes.
(h) Corporations Act: the Corporations Act 2001 (Cth).
(i) Customer: has the definition given in clause 4.1(b).
(j) Delivery Address: the address specified in an Order or any other address agreed by the parties from time to time.
(k) Event of Default: those events set out in clause 22.2.
(l) Force Majeure Event: events, circumstances or causes beyond a party's reasonable control including (but not limited to):
i) strikes, lock-outs or other industrial action;
ii) civil commotion, riot, invasion, cyber-attack, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
iii) fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, health emergencies, disease, or other natural disaster;
iv) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
v) interruption or failure of utility services (including the inability to use public or private telecommunications networks); and
vi) the acts, decrees, legislation, regulations or restrictions of any Government Agency,
however does not include a lack of funds.
(m) Goods: means those goods made available for purchase on the Supplier’s Website from time to time.
(n) Government Agency: any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.
(o) GST Law: has the same meaning as GST Law in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).
(p) Insolvency Event: any insolvency related event that is suffered by a party including without limitation where:
i) a controller (as defined in section 9 of the Corporations Act), administrator or similar officer is appointed in respect of a person or any asset of a person;
ii) a liquidator or provisional liquidator is appointed in respect of a person;
iii) any application (that is not withdrawn or dismissed within seven days is made to a court for an order, or an order is made, or a meeting is convened or a resolution is passed, for the purpose of (i) appointing a person referred to in paragraph i) or ii) of this definition; (ii) winding up or deregistering a person; or (iii) proposing or implementing a scheme of arrangement of a person, other than with the prior approval of the Agent under a
scheme of arrangement pursuant to Part 5.1 of the Corporations Act;
iv) any action, proceedings, procedure or step is taken for the purpose of implementing or agreeing (i) a moratorium of any indebtedness of a person; (ii) any other composition, compromise, assignment or arrangement with any creditor or creditors of a person; or (iii) any similar proceeding or arrangement by which the assets of a person are subjected conditionally or unconditionally to the control of its creditors or a trustee;
v) any event occurs in relation to a person in any jurisdiction that is analogous, or has a substantially similar effect, to those set out in paragraphs i) to iv) of this definition (inclusive); or vi) a person is or admits in writing that it is, or is declared to be, or is taken under any applicable law to be (for any purpose), insolvent or unable to pay its debts.
(q) 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 and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from
intellectual activity.
(r) Loss: 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).
(s) Order: means an order for Goods made by the Retailer through the Website in accordance with clause 4.1.
(t) Personnel: the directors, officers, employees, contractors, suppliers, advisers or agents of a party.
(u) Pre-Existing IP Rights: has the meaning given in clause 18.1(a).
(v) Price: the price payable by the Retailer to the Supplier for each Good in accordance with these Terms.
(w) Related Entity: has the meaning given in section 9 of the Corporations Act.
(x) Retailer: the Retailer identified in the application form the Retailer submits of the address as set out in the application form (or as updated in the Retailer’s Account).
(y) Retailer Materials: has the meaning given in clause 18.2(a).
(z) State: Victoria, Australia.
(aa) Supplier: The Plant Runner Pty Ltd ACN 622 357 582 of 10 Helen Street, Heidelberg West VIC 3081.
(bb) Supplier Intellectual Property: has the meaning given in clause 18.3(a).
(cc) Tax: any tax, levy, charge, impost, duty, fee, deduction, goods and services tax, compulsory loan or withholding, which is assessed, levied, imposed or collected by any Government Agency including any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any of the above.
(dd) Term: means the period commencing on the Commencement Date and continuing until terminated in accordance with these Terms.
(ee) Terms: these Wholesale Terms and Conditions.
(ff) Website: theplantrunner.com.
1.2 Interpretation  
In these Terms the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:
(a) Headings and subheadings are for convenience only and do not affect the interpretation of these Terms.
(b) References to clauses, schedules, annexures, appendices, attachments and exhibits are references to the clauses
of, and the schedules, annexures, appendices, attachments and exhibits to, these Terms.
(c) References to parties are references to the parties to these Terms.
(d) References to a party to any agreement or document include that party's permitted assignees and successors, including executors and administrators and legal representatives.
(e) Words denoting the singular include the plural and words denoting the plural include the singular.
(f) Words denoting any gender include all genders.
(g) The word 'person' ; includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency.
(h) A reference to a body (other than a party to these Terms), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.
(i) A reference to any agreement or document (including these Terms) includes any amendments to or replacements of that document.
(j) A reference to a law includes:
i) legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them;
ii) any constitutional provision, treaty or decree;
iii) any judgment;
iv) any rule or principle of common law or equity, and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.
(k) Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.
(l) Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally.
(m) No provision of these Terms will be construed adversely to a party because that party was responsible for the preparation of that provision or these Terms.
(n) If a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day.
(o) A reference to time is a reference to time in the capital city of the State.
(p) A reference to a day is a reference to a day in the capital city of the State.
(q) A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
(r) If any act is required to be performed under these Terms by a party on or by a specified day and the act is performed
after 5.00 pm on that day, the act is deemed to be performed on the next day.
(s) If any act is required to be performed under these Terms on or by a specified day and that day is not a business day,
the act must be performed on or by the next business day.
(t) A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.
(u) Specifying anything in these Terms 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.
(v) Where these Terms is executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.
(w) These Terms includes all schedules, annexures, appendices, attachments and exhibits to it.
(x) A reference to writing or written includes email.
(y) Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

2. APPLICATION
2.1 These Terms will become binding on the Retailer upon (a) the Retailer indicating its acceptance to it; or (b) the Retailer giving instructions to the Supplier to proceed; or (c) the Retailer making payment of any amount to the Supplier in respect of the Goods; or (d) the Retailer accepting or proceeding with the Goods.
2.2 These Terms apply to all Goods supplied by the Supplier to the Retailer at any time following the time when these Terms become binding on the Retailer.
2.3 The Retailer cannot terminate these Terms except to the extent as expressly permitted by these Terms.
2.4 No invoice, terms or other document issued by or on behalf of the Retailer (including the terms on any warranty or other agreement given to the Supplier) will vary or form part of these Terms unless otherwise agreed by the Supplier in writing. These Terms replace and supersede any invoice, terms or other document given by the Retailer to the Supplier.
2.5 If a person is agreeing to these Terms on behalf of the Retailer, the person agreeing on behalf of the Retailer warrants that it has the irrevocable authority and agreement of the Retailer to be bound by these Terms.

3. APPOINTMENT
3.1 Applying to be a distributor Retailers are required to submit an application form on the Website to register as a distributor and gain access to the rights as set out in these Terms. The Supplier may in its absolute discretion accept or reject any application. Retailers may be subject to an initial and ongoing identification check. By submitting an application form, the Retailer represents and warrants that all information provided is true and correct.
3.2 Appointment
Upon the Retailer’s application form being accepted, the Retailer will be granted access to an Account and appointed as a distributor of the Goods for the Term on the terms contained herein. The Retailer is solely responsible for maintaining the confidentiality of their Account and are liable for all activities that happen under the Account. The Retailer must not share
access of the Account with any third party.
3.3 Grant of Right
The Supplier grants to the Retailer the right to market, sell and distribute the Goods for the Term from the Retailer’s authorised selling locations as nominated and approved by the Supplier in the Retailer’s application form (each an Authorised Address) in accordance with these Terms.
3.4 Exclusivity
The terms of any exclusivity of appointment will be as agreed between the parties in writing. Where the Supplier agrees to such exclusivity, the Retailer’s exclusive area will be for the Retailer’s Authorised Addresses (unless otherwise agreed by the Supplier). Any exclusivity terms do not apply to any marketing, selling or distribution of the Goods that has taken place within the exclusive area that is a result of an online representation (such as the Supplier’s website).
3.5 Restrictions
The Retailer must not, except with the prior written consent of the Supplier:
(a) appoint a sub-distributor or sub-licence the rights granted to them under these Terms to a third party; or
(b) market, sell and/or distribute any Goods other than from the Authorised Addresses. The Retailer must not market, sell and/or distribute any Goods:
i) on any third-party marketplaces such as Facebook Marketplace or Ebay; or
ii) from a market or other location that is not an Authorised Address; or
iii) to a third party for wholesale purposes, wholesale pricing or other similar purposes relating to the wholesale of goods.
3.6 Relationship of parties
(a) These Terms do not create any relationship of employment, joint venture, partnership or principal and agent between the Supplier and the Retailer.
(b) The Retailer shall not enter into any agreements on behalf of the Supplier, shall not incur any liability on behalf of the Supplier, or in any way pledge or purport to pledge the Supplier’s credit or purpose to make any contract binding upon the Supplier, shall make no warranty either expressed or implied on behalf of the Supplier and shall not incur any expenses or other obligations on behalf of the Supplier.

4. ORDERING GOODS
4.1 Orders
(a) The Retailer may order Goods from the Supplier online via the Website or by other means if approved by the Supplier. Where another method is approved by the Supplier then references to the Website in these Terms shall include reference to such other method as applicable (such as by purchase order or invoice). Whether an Order is placed on the Website or by other means (as approved) these Terms will apply to the Retailer. The parties
acknowledge that the Supplier may reject any Order without reason, in part or in whole.
(b) Unless otherwise agreed, all contracts and dealings with the end-customer (Customer) are the responsibility of the Retailer and not the Supplier.
(c) Within a reasonable time after receipt of an Order, the Supplier will:
i) confirm receipt of the Order; and
ii) confirm whether the Order is accepted or not.
(d) If the Order is accepted, the Supplier will use its best endeavours to supply the Goods as requested and payment and delivery of the Order is to take place in accordance with these Terms.
(e) The supply of Goods under accepted Orders remains subject to availability. The Supplier’s rights to cancel an Order are set out in clause 4.3.
4.2 Changes to Orders Once an Order has been placed no changes may be made by the Retailer except with the agreement of the Supplier.
4.3 Cancellation of Orders The Supplier reserves the right to cancel any Order at any time for any reason in its absolute discretion, including after an Order has been placed and a confirmation email and/or invoice has been sent. The Supplier may cancel the Order for example, in the following circumstances (without limitation):
(a) if the Goods are not available;
(b) if there is an error in the description or price of the Goods in the Order.
The Retailer may not cancel an Order or any part of it without the agreement from the Supplier at any time after it has been accepted by the Supplier.
4.4 Agreement
These Terms will apply to each Order made on or after the Commencement Date. Termination of an Order does not automatically terminate these Terms.

5. PRICE AND PAYMENT TERMS
1.1 Price
(a) The Retailer must pay: i) the Price for each Good as displayed on the Website at the time the Order is placed (or on the invoice); and ii) the costs associated with the transport/delivery and insurance (during transit) of the Goods as specified on the relevant checkout page at the time the Retailer places their order (or as stated on the invoice).
(b) Prices and other details of Goods are subject to change without notice.
1.2 Payment and invoicing
(c) Payment of the Price and any other fees for an Order is due to the Supplier at the time the Order is placed, except where otherwise agreed.
(d) The Supplier will issue the Retailer with an invoice in respect of an Order placed for all amounts payable by the Retailer for that Order. Invoices are sent out each Monday (for Orders made the previous week and will be provided digitally (unless otherwise agreed).
(e) All amounts received, due and payable to the Supplier are to be paid in full without set off or counter claim and in cleared funds via a payment method as approved by the Website (or some other method approved by the Supplier).

5.2 Late payment
If payment is not made in accordance with the terms of these Terms, the Supplier at its entire discretion may:
(a) require the Retailer to pay the Supplier interest on all outstanding monies from the due date until the date of payment at the rate of 12% per annum accruing daily;
(b) refuse to supply the Goods to the Retailer until all outstanding monies, including any accrued interest, are paid in full;
(c) exercise such other rights in accordance with clause 7.5; and/or
(d) terminate these Terms whereupon all amounts that are payable under these Terms which are unpaid will be immediately due and payable.

5.3 General terms
(a) Without prejudice to its other rights and remedies, the Supplier may set-off and deduct from the sums due to the Retailer pursuant to any agreement any sums (whether liquidated or not) owed by the Retailer to it, irrespective of whether the liability to pay those sums arose under or in connection with these Terms.
(b) The Retailer may not withhold payment or make any deduction from any amount owing without the Supplier’s prior written consent, irrespective of any claim the Retailer may have against the Supplier for anything or matter whether related to the provision of the Goods or not.
(c) All amounts owed to the Supplier by the Retailer under these Terms become immediately due and payable on termination of these Terms for any reason, or if the Retailer becomes subject to an Insolvency Event.

6. SHIPPING & DELIVERY OF GOODS
Available delivery options, terms and charges for the Goods will be shown on the relevant checkout page at the time the Retailer places their Order. The option selected by the Retailer and the applicable costs of delivery and estimated delivery times will be shown in the Retailer’s checkout summary at the time the Order is placed.
Unless otherwise agreed, the Supplier will use reasonable endeavours to process the Order by the timeframes as stated on the Website, however the Supplier does not guarantee delivery within those timeframes.
6.1 Any processing and shipping times are an estimate of delivery only, and to the extent permitted by law, the Supplier cannot and is unable to guarantee any timelines for delivery of the Goods. Although the Supplier will use reasonable endeavours to deliver Goods on time, sometimes delays are inevitable and the Supplier will not be responsible for any Losses suffered by the Retailer in the event of delay. Late delivery of the Goods does not entitle the Retailer to:
(a) refuse to take delivery of the Goods;
(b) claim damages; or
(c) terminate these Terms.
The Retailer must pay all transportation and delivery costs associated with the delivery of the Goods to the Delivery Address at the same time as payment for the relevant Order is made or at other times requested by the Supplier. The cost for transportation and logistics is indicative only and may be varied by the Supplier upon giving the Retailer notice. A change in the transportation and delivery costs does not entitle the Retailer to dispute payment of such costs. Delivery of the Goods to a third party nominated by the Retailer or to its Personnel is deemed to be delivery to the Retailer for the purposes of these
Terms.
6.2 Delivery of the Goods is completed when:
(a) the Retailer (or its employees or agents) takes possession of the Goods at the Supplier's address;

(b) the supplier transports or delivers (as appropriate) the Goods at the Delivery Address (in the event that the Goods are delivered by the Retailer).

6.3 If the Retailer fails to take delivery of the Goods on the date for delivery the Supplier will store the Goods at the risk of the Retailer until delivery takes place again, and may charge the Retailer for all related costs and expenses (including insurance).

7. OWNERSHIP, RISK AND ASSESSMENT
7.1 Notwithstanding anything to the contrary express or implied in these Terms, the parties agree that the Supplier retains full
title to the Goods and title will not at any time pass to the Retailer until the Price for the Goods and all other amounts owing
in respect of the Goods are paid to the Supplier notwithstanding:
(a) the transportation or collection of the Goods to/by the Retailer (as the case may be); and/or
(b) the possession and use of the Goods by the Retailer.
Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
7.2 Even if the Supplier retains ownership of the Goods, all risk for the Goods passes to the Retailer:
(a) on transportation or collection of the Goods to/by the Retailer or the nominee of the Retailer (as the case may be); or
(b) if the Supplier’s nominated delivery carrier is unable to deliver the item to the place nominated by the Retailer for any reason, when the Supplier’s nominated delivery carrier makes their first attempt to deliver.
7.3 The Retailer must insure the Goods on or before delivery. If the Retailer requests the Supplier to leave Goods outside the Supplier’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Retailer’s sole risk.
7.4 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Retailer, the Supplier is entitled to:
(a) receive payment for the Goods; and

(b) for any shortfall of the payment of the Goods, receive the insurance proceeds payable for the Goods (for the amount of the shortfall). The production of these Terms by the Supplier is sufficient evidence of the Supplier's rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
7.5 The Retailer acknowledges and agrees that prior to ownership passing to the Retailer:
(a) it holds the benefit of the Retailer’s insurance of the Goods on trust for the Supplier, and must pay to the Supplier the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(b) it will, if requested by the Supplier, return the Goods to the Supplier following non-fulfilment of any obligation of the Retailer (including payment of monies) without limiting any other right the Supplier may have;
(c) it will not agree, attempt, offer or purport to sell, assign, sub-let, lend, pledge, mortgage, let, hire or otherwise part or attempt to part with personal possession of or otherwise deal with the Goods without the express written consent of the Supplier;
(d) it will deliver up the Goods to the Supplier upon demand by the Supplier and give the Supplier or its agents or authorised representatives the right to enter any premises occupied by the Retailer and any premises where it believes any Goods may be stored (without liability for trespass or any resulting damage) and to use the name of the Retailer and to act on its behalf, if necessary, to recover possession of the Goods and agrees to indemnify the
Supplier and its agents and/or authorised representatives from any damage, injury and/or loss arising from such recovery or attempted recovery of the Goods from the Retailer’s possession or control;
(e) it holds the proceeds, book debts and accounts receivable arising from selling or hiring of the Goods on trust for and as agent for the Supplier immediately when they are receivable or are received; and
(f) the Supplier may recover as a debt due and immediately payable by the Retailer all amounts owing by the Retailer to the Supplier in any respect even though title to the Goods has not passed to the Retailer.

8. SALE OF GOODS
8.1 Recommended retail pricing
The Supplier may publish recommended retail pricing which is to be used as a guideline only. The Retailer is responsible for determining the price which it sells the Goods for and is not bound to accept any recommendations. Subject to Applicable Laws, the Supplier may withhold the supply of Goods where the Retailer has sold the Goods at a price below cost for the purpose of attracting customers or loss leader selling.
8.2 Terms of sale
(a) The Retailer must sell the Goods to third parties on terms that are compliant with Applicable Laws and on terms that are consistent with these Terms. The Retailer must ensure that the sale contract for the Goods contains provisions:
i) at least as protective of the Supplier’s Confidential Information and Intellectual Property Rights as contained in these Terms;
ii) that do not impose any liability on the Supplier, and indemnify and limit the Supplier’s liability to the same extent as these Terms;
(b) The Retailer must not make any representation or give any warranty in relation to the Goods not expressly authorised by the Supplier in writing.
(c) The Retailer must not do anything which might affect the reputation of any of the Goods and/or the Supplier.

9. GOODS WARRANTY AND SUPPORT
9.1 The Goods are subject to warranties applicable to Customers under the Australian Consumer Law.
9.2 Where a warranty claim is made by a Customer, which is the responsibility of the Supplier under the Australian Consumer
Law:
(a) the Retailer must provide notice to the Supplier of the warranty claim and include all reasonable details that the Supplier requires (such as photographic evidence and any additional documentation); and
(b) the Retailer must make the Goods available to the Supplier (or an authorised repair agent) to inspect and test the Goods to determine whether they are defective (this includes granting the Supplier unimpeded access to inspect such Goods) unless the Supplier otherwise accepts in writing that the Goods are defective or the warranty claim is
accepted.
9.3 Where the warranty claim is properly accepted by the Retailer and the Supplier, then:
(a) the Supplier will at its election either:
i) repair the defective Goods or the defective part of the Goods and return the Goods to the Retailer; or ii) cause the defective Goods or the defective part of the Goods to be replaced or repaired by a qualified repairer (if applicable), unless a full refund is required by law; and
(b) the Supplier will bear the transportation and delivery costs of the Retailer for the Goods to the Delivery Address from the Supplier’s warehouse; and
(c) the Retailer shall be responsible for and shall bear all transportation and delivery costs associated with the transportation and delivery of the Goods to the Supplier’s warehouse (if required) and the return of the Goods to the Customer following delivery to the Delivery Address by the Supplier in accordance with this clause.
9.4 The Supplier expressly excludes all warranties with respect to any defect or damage that occurs as a result of:
(a) the transport and logistics of the Goods from:
i) the Delivery Address to the Supplier’s warehouse; and
ii) the Delivery Address to the Customer;
(b) the Retailer’s acts or omissions, including the Retailer failing to take reasonable steps to prevent them from becoming defective or the Retailer failing to follow the Supplier’s  instructions or best industry practice or any other obligations set out in these Terms;
(c) the Supplier following any instructions supplied by the Retailer;
(d) the Retailer altering or repairing the Goods without the written consent of the Supplier;
(e) wilful damage, negligence, or incorrect storage; or
(f) fair wear and tear.

10. RELOCATION
10.1 The Retailer acknowledges that the rights granted to it under clause 3.3 are for the Authorised Addresses only.
10.2 If the Retailer intends to relocate its nominated Authorised Address the Retailer must give at least 30 days’ notice to the  Supplier of its intention to relocate its nominated Authorised Address to another address with such notice including details of the relocated address and such other details as reasonably requested by the Supplier.
10.3 In the event the Retailer gives such notice of its intention to relocate, then the Retailer acknowledges and agrees that it must not market, sell nor distribute the Goods from the relocated address without the written approval of the Supplier. The Supplier may withhold its consent to a relocation request in its absolute discretion.

 10.4 Any requests for additional Authorised Addresses will be dealt with in the same manner.

11. RETAILER OBLIGATIONS
11.1 The Retailer must (and to the extent applicable, must ensure that its Personnel):
(a) comply with all Applicable Laws, regulations, permits, consents, approvals and relevant industry codes of conduct (this includes relevantly the Australian Consumer Law);
(b) not do any act or thing, which may adversely affect the reputation of the Supplier or the Goods;
(c) ensure that it has adequate stock on hand to fulfil orders for the Goods;
(d) comply with the reasonable directions and instructions of the Supplier in respect of the performance of its obligations under these Terms, including the rights granted under these Terms;
(e) use its best efforts to market, sell and distribute the Goods during the Term;
(f) endeavour to create, promote and retain the goodwill of the Goods;
(g) act diligently as a distributor of the Goods;
(h) inform the Supplier of any matter which may affect or assist in the distribution of the Goods from the Authorised Addresses or elsewhere;
(i) maintain such records of transactions enquiries and complaints as reasonably required by the Supplier and these Terms;
(j) as soon as practicable on request by the Supplier provide any information sought by the Supplier regarding sales inventories or other factors which might reasonably be considered relevant to the distribution capacity, marketing strategy or future distribution policy of the Supplier for the Goods;
(k) refer to the Supplier all enquiries relating to the sale or distribution of the Goods outside the Authorised Addresses;
(l) ensure that no advertising, marketing or promotional material used contravenes any Applicable Laws (including consumer protection or similar legislation);
(m) not use the Supplier Intellectual Property by itself or as part of any other identification or name in relation to any products not manufactured, produced, provided or supplied by the Supplier;
(n) keep abreast of and maintain conformity with all Applicable Laws (including the legal and regulatory requirements in relation to the sale of the Goods from the Authorised Addresses); and
(o) observe and perform its obligations under each agreement with a Customer of Goods including ensuring the timely delivery of the Goods.

11.2 The Retailer agrees that it will not by receiving or requesting the Goods:
(a) breach any Applicable Laws, rules and regulations (including any applicable privacy laws); or
(b) infringe the Intellectual Property Rights or other rights of any third party or breach any duty of confidentiality.

12. ACCEPTANCE AND DEFECTIVE GOODS
12.1 The Retailer must inspect all Goods immediately on delivery of the Goods and before use or sale.
12.2 The Retailer may reject as defective any Goods delivered to it that do not comply with the requirements of these Terms provided that the Retailer gives notice of rejection:
(a) in the case of a defect that is apparent on normal visual inspection within the earlier of one Business Day of delivery or before the Goods are sold; or
(b) in the case of a latent defect, within a reasonable time of the latent defect having become apparent (as determined by the Supplier at its absolute discretion).
12.3 Upon such notification of defective Goods, the Retailer must:
(a) provide any photographic evidence requested by the Supplier; and
(b) make the Goods available to the Supplier (or an authorised repair agent) to inspect the Goods to determine whether they are defective (this includes granting the Supplier unimpeded access to inspect such Goods).
12.4 If the Retailer is aware or ought reasonably to be aware that the Goods are defective for any reason, then the Retailer must take all necessary steps to mitigate any Loss.
12.5 If the Supplier is notified of a defective Good and agrees it is defective (acting reasonably) then the Supplier will at its election either:
(a) repair the defective Goods or the defective part of the Goods and return the Goods to the Retailer; or
(b) cause the defective Goods or the defective part of the Goods to be replaced or repaired by a qualified repairer (if applicable), unless a full refund is required by law.
12.6 Subject to the terms of this clause, Goods will only be dealt with in accordance with this clause provided that:
(a) the Retailer has complied with the other terms of this clause;
(b) the Supplier has agreed (in its reasonable opinion) that the Goods are defective;
(c) the Goods are returned (if necessary) as soon as possible to the Supplier; and
(d) the returned Goods are accompanied by all original delivery documentation.
12.7 Notwithstanding the above clauses, the Supplier will not be liable for or required to accept any return for any defect or damage where such defect or damage is caused or partly caused by or arises as a result of:
(a) the Retailer’s acts or omissions, including the Retailer failing to take reasonable steps to prevent them from becoming defective or the Retailer failing to follow the Supplier’s instructions or best industry practice or any other obligations set out in these Terms;
(b) the Supplier following any instructions supplied by the Retailer;
(c) the Retailer altering or repairing the Goods without the written consent of the Supplier;
(d) wilful damage, negligence, or incorrect storage (including failing to store the Goods as required under these Terms);
(e) fair wear and tear; or
(f) any accident or circumstance outside the reasonable control of the Supplier.
12.8 The Retailer acknowledges and agrees that the Retailer must obtain and is solely responsible to obtain all certificates, consents and approvals required for the Retailer's marketing, selling and distribution of the Goods. The Retailer is solely responsible for ensuring that the Goods are suitable or adequate for its purposes. The Retailer acknowledges that prior to execution it has satisfied itself by independent investigation as to the suitability of the Goods for its purposes and as to the requirements of any applicable legislation or any relevant government authority. To the fullest extent permitted by law all warranties as to suitability and as to adequacy otherwise applicable are expressly negatived.
12.9 Where the Retailer arranges for the transport and logistics of the Good, the Retailer takes sole responsibility of such, and the Supplier expressly excludes all warranties with respect to any defect or damage that occurs as a result of the transport and logistics arranged by the Retailer.
12.10 For the avoidance of doubt, the Supplier does not accept any returns for change of mind.

13. GOODS LIABILITY
13.1 If any claim is made against the Retailer arising out of or in connection with the distribution of, supply of or any defect in the Goods, the Retailer must release and indemnify the Supplier against, and hold the Supplier harmless from, all Loss and claims to the extent that the Loss or claims relate in any way to:
(a) the Retailer failing to comply with the terms of these Terms (including its obligation to store the Goods; and/or
(b) any act or omission of the Retailer.
13.2 The Retailer must notify the Supplier as soon as practicable after becoming aware of the claim, and take all action reasonably requested by the Supplier to avoid, compromise or defend the claim and any proceedings in respect of the claim, subject to the Retailer being indemnified and secured to its reasonable satisfaction against all costs and expenses which
may be incurred in doing so.
13.3 If the Supplier proposes to discontinue the marketing and sale of the Good in Australia, then the Supplier may remove that Good, on 30 (thirty) days; written notice to the Retailer.
13.4 Other than those expressly set out in these Terms, the Supplier excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Goods to the maximum extent permitted by law.

14. INSURANCE
14.1 From the date of collection and/or delivery of the Goods the Retailer must maintain in force the following insurance policies with reputable insurance companies:
(a) public and product liability insurance with a limit of at least $20,000,000 per occurrence; and
(b) workers’ compensation insurance in accordance with all applicable State and Territory legislation.
14.2 If the Supplier requests, the Retailer must promptly send to the Supplier a copy of the certificate of currency for each insurance policy held by the Retailer and details of the cover provided.
14.3 The Retailer must immediately notify the Supplier if any policy is (or will be) cancelled or its terms are (or will be) subject to material change.

15. GOODS RECALL
15.1 If the Retailer 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.
15.2 Unless required by law, the Retailer may not undertake any recall or withdrawal of the Goods from the market without the written permission of the Supplier.
15.3 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 Retailer must comply strictly with:
(a) any requirements set out in the relevant Recall Notice; and
(b) the Supplier's instructions about the process to implement the recall or withdrawal.
15.4 For the purposes of clause 15.3, reasonable grounds for the Supplier to recall or withdraw the Goods include, but are not limited to where:
(a) supply or use of the Goods infringes, or may infringe, a third party's intellectual property rights;
(b) the Goods are, or may be, unsafe; or
(c) a defect in the Good may cause harm to the Supplier's reputation or brand.

16. MARKETING, PROMOTION AND PACKAGING
16.1 Standard supply 
The Retailer must only sell the Goods under the Supplier’s brand. The Retailer must only use the marketing, packaging and promotional materials which are provided by the Supplier or has been approved by the Supplier in connection with the Goods. The Retailer is strictly prohibited from altering and/or modifying such materials without the approval of the Supplier.
The Retailer must ensure that the Retailer’s actions:
(a) do not damage the reputation of the Supplier; and
(b) are in compliance with Applicable Laws.
The Supplier may list, and the Retailer grants the Supplier an irrevocable licence to list, the Retailer (with its logo, business name and address details) on its Website as a stockist, provided that the Retailer has a physical Authorised Address in which it is selling the goods from. If the Retailer has an online Authorised Address only, then it will not be listed.
16.2 Supplier marks, images and representations
The Retailer is expressly prohibited from copying, reproducing, or using the Supplier’s trade marks, business names, logos, and any images owned by the Supplier, including such images found on the Supplier’s website and social media pages without the express written consent of the Supplier. The Retailer must comply with any directions or limitations specified by the
Supplier when marketing the Goods.

17. MODIFICATION OF GOODS & PACKAGING MATERIALS
17.1 Subject to the further provisions of this clause the Retailer shall not modify the Goods or any packaging technical information and/or instructions for use of the Goods without the prior written permission of the Supplier which may be granted on such conditions as the Supplier shall consider appropriate.
17.2 Should the Retailer require modifications, then the Retailer may request the Supplier provide such modifications, and the Supplier may accept or reject such request at its sole discretion. If the Supplier accepts such request then the Supplier will provide an additional quote (with additional fees required to be paid as advised by the Supplier) and if accepted by the Retailer, an invoice will be issued to accommodate these amendments.
17.3 Any modifications to the Good will be at the Retailer’s risk, and the Retailer will be solely responsible for ensuring such modified Goods are of acceptable quality and fit for purpose.

18. TITLE TO GOODS AND INTELLECTUAL PROPERTY

Pre-Existing IP
(a) Each party acknowledges that the Intellectual Property Rights of any materials developed by a party prior to the Commencement Date or that is created independently of these Terms (together the 'Pre-existing IP Rights') remain the sole property of the owner (such as a party’s business logo). Ownership of Pre-existing IP Rights remains unchanged by these Terms, other than as expressly set out in these Terms.
(b) The Retailer grants the Supplier a worldwide, non-exclusive, royalty free, non-transferable licence to use the Pre-existing IP Rights owned by it for the purpose of the Retailer obtaining a benefit under these Terms.
Retailer materials
(c) The Supplier acknowledges that ownership of all “Retailer Materials” (being all works, designs or materials supplied by (or on behalf of) the Retailer for use in relation to (or incorporation into) the distribution and supply of Goods shall remain vested in the Retailer and/or its licensors (as the case may be).
(d) The Retailer grants the Supplier a worldwide, non-exclusive, royalty free, non-transferable licence to use the Retailer Materials for the purpose of the Retailer obtaining a benefit under these Terms.
(e) The Retailer warrants that such Retailer Materials:
i) will not breach any third party rights (including any third party Intellectual Property Rights); and ii) will not, when used by the Supplier, cause the Supplier to be liable to any third party (including for any payments of royalties).
Supplier Intellectual Property
(f) The Retailer acknowledges that the Supplier shall retain all title, interest and rights (including Intellectual Property Rights) which subsist in or which may be obtained from the following:
i) any material the Supplier creates which is based upon or derived from the Retailer Materials or any Intellectual Property Rights owned by or licensed to the Retailer or is made to the design or at the direction of the Retailer (including without limitation any drawings, and reports); 
ii) the Supplier’s trade marks, business names, logos and other branding imagery;
iii) the Supplier’s marketing, packaging and promotional materials;
iv) the Goods and any specifications of the Goods (whether they are designed, drawn or developed alone by the Supplier or with the assistance of the Retailer or solely by the Retailer); and
v) any additional or further intellectual property created, formulated or discovered by either party in connection with the Goods (including any developments, improvements, revisions and updates to the Goods) whether or not the Supplier and/or Retailer contributed to them, and whether or not the addition was at the direction or suggestion of the Retailer,
(collectively the “Supplier Intellectual Property”).
(g) The Retailer undertakes not to:
i) take or permit or omit any action which would or might:
A. invalidate or put in dispute the Supplier’s title to the Supplier Intellectual Property or any part of it;
B. oppose any application for registration or invalidate any registration of the Supplier Intellectual Property or any part of it (including without limitation a registration of the Supplier Intellectual Property as a patent worldwide);
C. support any application to remove or undo the Supplier’s title in the Supplier Intellectual
Property or any part of it; or 
D. assist any other person directly or indirectly in any of the above;
ii) 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.
(h) The Retailer 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.
(i) In the event the Supplier provides the Retailer with access to the Supplier Intellectual Property and/or Confidential Information, the Supplier grants the Retailer a revocable, non-exclusive, non-assignable or transferable licence to use the Supplier Intellectual Property and/or Confidential Information solely for the purpose of fulfilling its obligations
under these Terms during the Term.
18.2 Continuous Obligations
The obligations contained in this clause shall endure for so long as a party shall have an interest in any or all of its Intellectual Property Rights.

19. CONFIDENTIALITY
19.1 Each party (Recipient) must keep secret and confidential and not disclose any Confidential Information, except: 
(a) where the Confidential Information is in the public domain as at the date of these Terms (or subsequently becomes in the public domain other than by breach of any obligation of confidentiality binding on the Recipient);
(b) if the Recipient is required to disclose the Confidential Information by applicable law or the rules of any recognised stock exchange or other document with statutory content requirements, provided that the Recipient has, to the extent practicable having regard to those obligations and the required timing of the disclosure, consulted with the provider of the Confidential Information as to the form and content of the disclosure;
(c) where the disclosure is expressly permitted under these Terms;
(d) if disclosure is made to its officers, employees and professional advisers to the extent necessary to enable the Recipient to properly perform its obligations under these Terms, in which case the Recipient must ensure that such persons keep the Confidential Information secret and confidential and do not disclose the Confidential Information to
any other person;
(e) where the disclosure is required for use in legal proceedings regarding these Terms; or
(f) if the party to whom the information relates has consented in writing before the disclosure.
19.2 Each Recipient must ensure that its directors, officers, employees, agents, representatives and Related Entities comply in all respects with the Recipient's obligations under this clause.
19.3 A party may not make or send any public announcement, communication or circular relating to the subject matter of these Terms unless the other party has consented to the announcement, communication or circular in writing (including the timing, form and content of that disclosure).

20. INDEMNITY
20.1 Except to the extent caused or contributed to by the breach of these Terms by the Supplier, the Retailer indemnifies the Supplier against any Losses, liabilities, costs, charges or expenses and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by the Supplier arising out of or in connection with:
(a) any breach or negligent performance or non-performance of these Terms by the Retailer, including any failure to pay any fees on time;
(b) any Claim made against the Supplier and/or the Retailer by a third party:
i) for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Retailer’s marketing, sale and/or distribution of the Goods;
ii) for death, personal injury or damage arising out of or in connection with defective Goods,
to the extent that such Claim arises out of the breach, negligent performance or failure or delay in performance of these Terms, or the acts or omissions of the Retailer or the Retailer’s Personnel;
(c) arising from any event or cause, beyond the control of the Supplier;
(d) the enforcement of these Terms; and
(e) any negligent act, omission or wilful misconduct of the Retailer.
20.2 The Retailer must make payments under this clause:
(a) in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
(b) in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.
20.3 The indemnities in this clause:
(a) are continuing obligations of the Retailer, independent from its other obligations under these Terms and survive termination or expiry of these Terms; and
(b) are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting the liability of the Retailer.

21. EXCLUSION AND LIMITATION OF LIABILITY
21.1 The Supplier provides the Goods on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. The Supplier excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Goods that are not expressly set out in these Terms to the maximum extent permitted by law.
21.2 Subject to the other terms of this clause, the Supplier's maximum aggregate liability to the Retailer, is limited to:
(a) the remedies in clause 12.5 in respect of Goods deemed defective by the Supplier and rejected by the Retailer under clause 12;
(b) the actual charges paid by the Retailer to the Supplier under these Terms in the 1-month period preceding the matter or event giving rise to the claim for any other loss or damage or injury arising out of or in connection with these Terms, including any breach by the Supplier of these Terms however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis.
21.3 Without limitation to the other terms of these Terms, the Supplier excludes any liability to the Retailer, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with these Terms.
21.4 Notwithstanding anything else in this clause, the Supplier’s liability will be reduced to the extent the loss or damage is caused by or contributed to by the Retailer or the Retailer’s Personnel.
21.5 The Supplier will not be liable for any claim under or in relation to or arising out of these Terms including a breach of any warranty unless:
(a) the Retailer has first made a claim under any insurance policy held by the Retailer that may cover that claim; and
(b) that claim has been denied in whole or partly by the relevant insurer.
21.6 If the Retailer recovers any amount under an insurance policy in respect of a claim under or in relation to or arising out of these Terms and that amount is less than the loss or damage incurred by the Retailer, the amount of the shortfall will be the amount of the Retailer’s loss for the purposes of these Terms.

22. TERMINATION
22.1 Either party may terminate these Terms at any time and without cause, on giving written notice to the other party.
22.2 The occurrence of any of the following is an Event of Default in respect of the Retailer:
(a) the Retailer fails to pay any amount due under these Terms on the due date for payment;
(b) the Retailer commits a material breach of any other term of these Terms and that breach is irremediable or (if that breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; (c) the Retailer repeatedly breaches any of the terms of these Terms in such a manner to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Terms; or
(d) an Insolvency Event occurs in relation to the Retailer.

23. EFFECT OF TERMINATION
On termination of these Terms:
(a) the Retailer: i) may, unless an Event of Default occurs in respect of the Retailer at the time of termination, continue to sell the Goods and use the intellectual property (as permitted under these Terms until revoked);
ii) if an Event of Default occurs at the time of termination or the Supplier revokes such right referenced in clause 23.1(a)i):
A. the Retailer must immediately cease selling the Goods and using the intellectual property;
B. the Retailer must return the Goods to the Supplier; and
C. on receipt of all the remaining Goods, the Supplier agrees to refund all fees paid by the Retailer for such Goods except that an amount equal to 30% of the fees paid by the Retailer will be deducted (unless otherwise waived by the Supplier);
iii) must deliver to the Supplier all documents and other materials (including all copies) in its possession or control relating to the Intellectual Property and the Confidential Information;
(b) the Supplier will accept no further Orders, and will at its option either:
i) fulfil outstanding Orders, at which case, the terms of these Terms (including in relation to payment) will continue until the completion of those Orders; or
ii) cancel outstanding Orders and provide a refund to the Retailer (less any costs), except that no refund will be provided where these Terms is terminated under clause 22.1.
Any rights which may have accrued to either party prior to the termination shall be unaffected by the termination.

24. FORCE MAJEURE
24.1 The Supplier will not be in breach of these Terms or liable to the Retailer 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 these Terms where such prevention, hindrance or delay results from a Force Majeure Event.
24.2 If a Force Majeure Event occurs, the Supplier must notify the Retailer in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay.
24.3 On providing the notice in clause 24.2, the Supplier will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented, however, the Supplier must continue to use all reasonable endeavours to perform those obligations.
24.4 The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.

25. GENERAL PROVISIONS
25.1 Variation An amendment or variation of any term of these Terms must be in writing and signed by each party.
25.2 No Waiver
(a) 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 these Terms 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.
(b) Words or conduct referred to in clause 25.2(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.
25.3 Assignment, Novation and Other Dealings  
(a) The Supplier may assign or novate any rights that arise out of or under these Terms without the consent of the Retailer.
(b) Any rights of the Retailer that arise out of or under these Terms are not assignable or capable of novation by the Retailer without the prior written consent of the Supplier, whose consent must not be unreasonably withheld.
25.4 Counterparts
These Terms may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute these Terms by signing any counterpart. The date on which the last counterpart is executed is the date of
these Terms. Communication of the fact of execution to the other parties may be made by sending evidence of execution by email.
25.5 Costs

The parties must bear their own costs of and incidental to the negotiation, preparation and execution of these Terms.
25.6 Severability
(a) If the whole or any part of a provision of these Terms 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.
(b) Clause 25.6(a) does not apply if the severance of a provision of these Terms in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under these Terms.
25.7 No Merger
On completion or termination of these Terms, the rights and obligations of the parties set out in these Terms will not merge and any provision that has not been fulfilled remains in force.
25.8 Survival 
Any clause which by its nature is intended to survive termination or expiry of these Terms will survive such termination or expiry.
25.9 Remedies Cumulative  
Except as provided in these Terms and permitted by law, the rights, powers and remedies provided in these Terms are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of these Terms.
25.10 Entire Agreement  
These Terms states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements (including stockist agreements), understandings, negotiations and discussions in respect of its subject matter.
25.11 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 these Terms.
25.12 Governing Law and Jurisdiction  
(a) These Terms is governed by the law in force in the State.
(b) Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of
appeal from them in respect of any proceedings arising out of or in connection with these Terms.
(c) Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 25.12(b) on the basis that:
i) any proceeding arising out of or in connection with these Terms has been brought in an inconvenient forum;
or
ii) the courts described in clause 25.12(b) do not have jurisdiction.