Terms & Conditions - Buyer

RECITALS:

1. Freshey Pty Ltd (Freshey) ABN 30 669 805 592 is the owner of the Application.

2. Freshey wishes to permit the Buyer to purchase Goods using the Application.

3. The Buyer has agreed to use the Application in accordance with this Contract.

THE PARTIES AGREE AS FOLLOWS:

1. INTERPRETATION

1. Definitions

The following definitions apply in this document.

Acceptance when the Goods have been delivered and the Buyer has confirmed with Freshey that the Goods are in accordance with the Buyers’ order.

Account means either the PAYG Buyer’s or Prepaid Buyer’s account with Freshey, and where the context requires shall include any Linked Account.

Application means the Freshey online market platform developed and owned by Freshey for the purposes of permitting:

1. Sellers to sell their Goods; and

2. Buyers to purchase Sellers’ Goods,

using iOS, android and web desktop operating systems and provided to the Buyer under the terms of this Contract.

Application Materials means all IP Materials created or produced by or on behalf of the Buyer and uploaded to the Application.

Approval means any licence, approval, authorisation, code of conduct, government policy, consent, exemption, filing, licence, notarisation, permit, registration, waiver and conditions attaching to any of them (as applicable) by any Authority, and includes any renewal of, or variation to, any of them and any management plans or documents developed or required to be developed under any of them, in the Territory.

Authority any government or governmental, semi-governmental, or local government authority, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity including any electricity, gas, telecommunications or other utility company having statutory rights in relation to the Application.

Business Day means a day other than a Saturday or Sunday or a day this is partly or wholly observed as a public holiday in the state which Freshey holds its registered address.

Buyer means either a PAYG Buyer or Prepaid Buyer in accordance with this Contract.

Buyer Background Material means all IP Materials:

1. created by, or on behalf of, the Buyer or a third party prior to the date of execution of this Contract or independently of this Contract; and

2. used or otherwise provided by the Buyer in the course of supplying the Goods, but excluding the Application Materials.

Checkout means the stage in the Application where the Buyer agrees to purchase Goods from the Seller on the terms and conditions described and as contained in this Contract.

Commencement Date the date upon which the last party to execute this Contract so executes it.

Confidential Information means in relation to a party to this Contract, information relating to the party’s business, computer systems or affairs and includes any:

1. trade secrets, know-how, scientific and technical information;

2. product, customer, marketing or pricing information;

3. information in relation to this Contract;

4. Freshey Background Materials;

5. all commercial and technical information disclosed under or in connection with this Contract;

6. all information produced pursuant to this Contract or in the use of the Application or Freshey Services; and

7. any other information which the party notifies the other is confidential, or which the other party knows or ought to know is confidential.

Consequential Loss means any:

1. loss of business or production;

2. loss of actual or anticipated profit or revenue;

3. loss or denial of opportunity;

4. loss of access to markets or lack of market share;

5. loss of contract;

6. loss of goodwill;

7. loss of business reputation, future reputation or publicity;

8. increase in financing costs;

9. loss of income; and
10. loss of use.

Corporations Act means the Corporations Act 2001 (Cth).

Deliver includes drop off, make available and deliver.

Delivery that stage when the Goods have been delivered to the Buyer at the Delivery Point.

Delivery Point means the delivery point nominated by the Buyer in respect of the purchase of Goods.

Dispute means any dispute or difference arising out of, or in connection with, this Contract or the Application.

Dispute Notice means as set out in clause 14.1(b).

Goods means the products uploaded for sale and purchase on the Application.

Intellectual Property Rights means any and all current and future intellectual and industrial property rights and interests, including any:

1. patents, trademarks, service marks, rights in designs, trade names, copyrights, utility models, eligible layout rights and topography rights, inventions, discoveries, trade secrets, know how, software and improvements;

2. applications for, or right to apply for registration of any of them;

3. rights under licences and consents in relation to any of them; and

4. other forms of protection of a similar nature or having equivalent or similar effect to any of them,

in Australia and the world, whether registered or unregistered, for the duration of the rights and interests.

IP Materials means material in whatever form, including documents, specifications, designs, plans, reports, products, equipment, information, data, concepts, inventions, processes, formulae, know-how, graphic layouts, images and software.

Laws includes, from time to time, all applicable:

1. legislation, ordinances, regulations, by-laws, local laws, orders and proclamations;

2. Approvals;

3. principles of law or equity;

4. standards, codes and guidelines;

5. directions or notices issued by any Authority; and

6. fees, rates, taxes, levies and charges payable in respect of those things referred to in paragraphs (a) to (e) of this definition,

as amended, whether or not existing at the date of execution of this Contract.

Liability Limitation means the amount set out in clause 15.1.

Licence means the appropriate licences required to purchase wholesale food products, including the Goods, in the Territory.

Linked Accounts means a sub-account of the Buyer linked to an Account of the Buyer as set out in clause 4.1(g).

Loss means includes any loss, cost, expense, damage or liability (including any fine, penalty or debt due) whether direct, indirect or consequential, present or future, fixed or unascertained, actual or contingent and whether arising under contract (including any breach of this Contract), in equity (including breach of an equitable duty, breach of confidentiality or breach of fiduciary duty), under statute (including breach of statutory duty) (to the maximum extent possible), in tort (including for negligence or negligent misrepresentation) or otherwise (including in restitution).

Minimum Account Balance means the minimum account balance as directed by Freshey and applicable to the Territory.

PAYG Buyer means a Buyer approved as such by Freshey.

Personal Information means information or an opinion in any form and whether true or not, about an identified or reasonably identifiable individual.

Prepaid Buyer means a Buyer approved as such by Freshey.

Privacy Laws means:

1. the Privacy Act 1988 (Cth); and

2. any other legislation, principles, industry codes and policies relating to the collection, use, disclosure, storage or granting of access rights to Personal Information, which Freshey notifies the Buyer is a Privacy Law for the purposes of this Contract.

Sales Contract means a sales contract between the Buyer and a Seller formed in accordance with clause 5 on the terms set out in Schedule 1.

Seller means those persons or entities seeking to sell Goods to the Buyer through the use of the Application.

Freshey Background Material means all IP Materials owned or licensed by Freshey and provided by, or on behalf of, Freshey to the Buyer for the purposes of this Contract, including but not limited to all user experiences, interfaces, workflows of the Application.

Freshey Services means the services provided by Freshey which connect the Seller who has Goods available for sale to Buyers seeking to purchase such Goods through the use of the Application.

Star Rating means the rating generated by the Application based on anonymous ratings provided by buyers to Sellers over a period of time.

Territory means the location, state or area as directed by Freshey.

2. Rules for interpreting this document

3. Headings are for convenience only, and do not affect interpretation. The following rules also apply in interpreting this document, except where the context makes it clear that a rule is not intended to apply.

4. A reference to:

1. a legislative provision or legislation (including subordinate legislation) is to that provision or legislation as amended, re–enacted or replaced, and includes any subordinate legislation issued under it;
2. a document (including this document) or agreement, or a provision of a document (including this document) or agreement, is to that document, agreement or provision as amended, supplemented, replaced or novated;

3. a party to this document or to any other document or agreement includes a successor in title, permitted substitute or a permitted assign of that party;

4. a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person; and

5. anything (including a right, obligation or concept) includes each part of it.

5. A singular word includes the plural, and vice versa.

6. A word which suggests one gender includes the other genders.

7. If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.

8. If an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing.

9. A matter is to the knowledge of a person at a relevant time if:

6. it was within that person's actual knowledge; or

7. it would have been discovered by the enquiries that would have been made by a reasonable person in that person's position, even if, at that time, the matter is not actually known by that person.

10. A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.

11. The expression this document includes the agreement, arrangement, understanding or transaction recorded in this document.

12. The expressions subsidiary, holding company and related body corporate have the same meanings as in the Corporations Act.

13. A reference to dollars or $ is to an amount in Australian currency.

3. Non Business Days

If the day on or by which a person must do something under this document is not a Business Day:

14. if the act involves a payment that is due on demand, the person must do it on or by the next Business Day; and

15. in any other case, the person must do it on or by the previous Business Day.

4. The rule about "contra proferentem"

This document is not to be interpreted against the interests of a party merely because that party proposed this document or some provision of it or because that party relies on a provision of this document to protect itself.

2. OBLIGATIONS OF FRESHEY

5. Obligations of Freshey

16. Subject to compliance by the Buyer with:

8. clause 4.1(a);

9. if the Buyer is a PAYG Buyer compliance with clause 3.1(a)(i); and

10. if the Buyer is a Prepaid Buyer compliance with clause 3.1(a)(ii),

on and from the Commencement Date, Freshey must permit the Buyer to download, install and use the Application.

17. The Buyer acknowledges and agrees that:

11. the entry by Freshey into this Contract;

12. all acts and omissions of Freshey in connection with this Contract or the Application,

constitutes the conduct of an online marketplace or introductory service only, by which the Buyer can use the Application to purchase Goods for sale, and the Buyer and a Seller may then agree to enter into a Sales Contract; and

13. nothing in this Contract shall render Freshey a party to or liable for any obligations under any Sales Contract.

3. OBLIGATIONS OF BUYER

6. Obligations of Buyer

The Buyer must:

18. nominate itself as either a PAYG Buyer (Credit Card), Prepaid Buyer (EFT Payment), or Line of Credit (Debt Financing) and:

1. if it is approved by Freshey as a PAYG Buyer, pay the purchase price of the Goods plus the credit card surcharge set out in clause 4.2(a) to Freshey; or

2. if it is approved by Freshey as a Prepaid Buyer, transfer to its Account and maintain at all times the Minimum Account Balance;

19. at all times maintain its Licence; and

20. download, install and use the Application strictly in accordance with this Contract.

4. USE OF APPLICATION

7. Registration and creation of an Account

21. In order to access and use the Application the Buyer must register with Freshey to create an Account.
22. The Buyer must nominate itself as either a PAYG Buyer, Prepaid Buyer or Line of Credit Buyer with Freshey in registering its Account.

23. Freshey may accept or reject the Buyer’s application for registration of an Account at its sole and absolute discretion.

24. The Buyer agrees that if Freshey is not servicing the area in which the Buyer is located, the Buyer may register its interest with Freshey, and Freshey may at its sole and absolute discretion determine whether it will service the area referred to in the Buyer’s registration of interest.

25. Once Freshey accepts the Buyer’s application for registration of an Account, Freshey will open the Buyer’s Account and permit the Buyer to use and utilise the features and buying capability of the Application.

26. The Buyer must:

3. protect access to its Account and all related passwords; and

4. notify Freshey immediately of any unauthorised use of its Account.

27. The Buyer may create Linked Accounts from its Account with Freshey, enabling any employee, director, officer, agent or representative employed or engaged by the Buyer to use such Linked Accounts as a part of the Buyer's Account.

28.         The Buyer is responsible for its Account and all activity generated from it, including but not limited to utilisation of the Application by:

29. any sub-users who may be authorised by the Buyer to access and utilise the Application under the Buyer’s Account; and

(ii)        any Linked Account user.

9. The Buyer indemnifies Freshey against any unauthorised use of its Account and Linked Accounts, and any resulting Loss by Freshey, a Seller or any third party.

10. The Buyer acknowledges and agrees that information provided by it to Freshey in relation to the sale price of Goods may be used by Freshey:

1. anonymously; and

2. protecting the identity of the Buyer,

to generate a market performance dashboard and market reports which can be accessed by other buyers and Sellers registered with Freshey.

8. PAYG Buyer (Credit Card)

The PAYG Buyer acknowledges and agrees that:

30. all credit card payments for Goods purchased through the Application will incur a

1.5% credit card surcharge;

31. if the PAYG Buyer’s Account is inactive for a period of 3 months, Freshey may at its sole discretion and without notice to the PAYG Buyer, automatically disconnect and discontinue the PAYG Buyer’s Account; and
32. if the PAYG Buyer wishes to continue to use the Application following disconnection and discontinuance by Freshey under clause 4.2(b), it must register a new Account with Freshey in accordance with the process set out in clause 4.1.

9. Prepaid Buyer (EFT Account)

1. Where an Account of a Buyer is approved by Freshey to be a Prepaid Buyer, the Prepaid Buyer can transfer into its Account Balance with Freshey.

2. The Prepaid Buyer acknowledges and agrees that:

1. the Account Balance will be shown at all times through their registered account.

2. Freshey may, at its absolute discretion, refuse any Account or purchase of Goods through the Application.

3. Freshey is appointed as agent authorised to receive payments on its behalf for Goods sold to Buyers through the Application of the amounts stipulated by the Seller.

3. The Prepaid Buyer agrees that, upon confirmation of purchase of Goods at Checkout, it must:

1. ensure its Account contains sufficient funds for the total sum of the purchase of Goods, and if the Account does not contain such sufficient funds, it must transfer such funds into its Account:

1. by way of credit card, in which case the respective purchase of Goods

will be processed immediately; or

2. by way of EFT transfer, in which case the respective purchase of Goods will not be processed immediately, and the Prepaid Buyer must wait until such transferred amounts have been cleared into its Account before it may proceed to finalise its transaction; and

2. pay the confirmed purchase price of Goods by credit card at the time of Checkout through the Application.

4. The Prepaid Buyer acknowledges and agrees that if it uses an EFT transfer to add funds into its Account in accordance with clause 4.3(c)(i)(B), Freshey is not responsible for the continued availability of Goods for the period of time until such funds have been cleared into the Prepaid Buyer’s Account, and the transaction has been finalised.

10. Uploading of information

The Buyer acknowledges and agrees that Freshey does not take any responsibility for, nor does it warrant that any information uploaded by the Seller to the Application concerning the Goods is accurate or in accordance with the details of the Goods provided by the Seller.

5. SALES CONTRACTS

11. Formation of Sales Contracts

5. The Buyer acknowledges and agrees that the uploading of Goods on the Application by a Seller constitutes an offer to sell such Goods by such Seller at the price indicated.

6. The Buyer acknowledges and agrees that following the offer for sale of Goods by a Seller under clause 5.1(a), the Buyer may accept a Seller’s offer by communicating such acceptance to the Seller by clicking the “Checkout” tab within the Application.

7. The Buyer agrees that upon:

3. an offer by a Seller under clause 5.1(a); and

4. acceptance of an offer by the Buyer under clause 5.1(b),

a Sales Contract will come into existence between the Buyer and the Seller in respect of those Goods.

8. Freshey does not warrant the use of the Application by the Buyer or that the uploading of Goods for sale on the Application by a Seller will assure the creation or existence of a Sales Contract with the Buyer.

9. The Buyer agrees that the use of the Application and any Sales Contract that is created shall be entirely at its own risk.

10. The Buyer acknowledges and agrees that:

5. Freshey is not a party to any relationship between the Buyer and a Seller which is formed through the use of the Application, including any Sales Contract;

6. Freshey will have no liability to the Buyer for any Loss in connection with any relationship between the Buyer and a Seller through the use of the Application, including through any Sales Contract; and

7. any relationship or engagement between the Buyer and a Seller will be the sole responsibility of the Buyer.

11. The Buyer accepts that upon confirmation of the purchase of Goods by it, the relevant Goods displayed for sale on the Application will be automatically removed from the Application, and will no longer be visible to other buyers.
12. The Buyer may not cancel any purchase of Goods once a Seller has confirmed purchase of such Goods at Checkout.

13. If the Buyer wishes to cancel a purchase of Goods following Checkout, it must contact Freshey immediately.

14. Freshey may, at its sole and absolute discretion, direct whether the purchase of Goods under clause 5.1(i) is to proceed or not.

6. ACCESS TO APPLICATION

12. Access

15. Subject to compliance by the Buyer with clause 4.1(e), upon the Commencement Date Freshey shall give to the Buyer access to the Application.

16. The Buyer acknowledges that any delay by Freshey in providing access to the Application shall not be a breach of the Contract.

17. The Buyer acknowledges and agrees that:

8. access to the Application confers on the Buyer a right to only the use and control which may be necessary to enable the Buyer to use the Application and excludes use of the Application for any purpose not connected with the sale of the Goods;

9. it is not entitled to exclusive access to the Application; and

10. Freshey may in its sole and absolute discretion refuse access to the Application to the Buyer at any time.

7. DELIVERY AND ACCEPTANCE

13. Delivery

18. Upon signing up through the application, the Buyer must provide its Delivery Point for the Delivery of Goods by Freshey.

19. Upon purchase of Goods through the Application, Freshey will notify the Buyer of the estimated Delivery costs, and time for Delivery to the Delivery Point.

20. The Buyer acknowledges and agrees that the time for Delivery by Freshey is an estimate only, and Freshey does not warrant any time for Delivery, nor does it accept any liability or Loss suffered by the Buyer of any late Delivery.

21. The Buyer agrees that, as between the Buyer and Seller, all costs of transport and shipping from the Seller to the Delivery Point shall be the responsibility of the Buyer.

22. Freshey takes no responsibility for transport or shipping from the Seller to the Delivery Point.

23. The Buyer is liable for any associated handling and storage charges which may be incurred by Freshey if the Buyer is not available at the time of Delivery, and Freshey may recover these charges in full from the Buyer.

24. If a Delivery time is missed, Freshey will use reasonable endeavours to transport the relevant Goods to the Buyer as soon as possible thereafter.
25. The Buyer acknowledges and agrees that Freshey does not warrant that any late Deliveries by the Seller can or will be transported to the Buyer at the time of Delivery.

14. Acceptance

The Buyer acknowledges and agrees that payment for the Goods will only be released to the Seller when Freshey has confirmed Acceptance of the Goods.

15. Adjustment of Weight

26. Subject to clause 7.3(b), following the harvest and packing of Goods and determination of the actual weights of such Goods, the Seller may adjust any weight previously uploaded on the Application for those Goods.

27. The adjustment contemplated by clause 7.3(a) may in no circumstances exceed 25% of the original stated weight of the Goods uploaded on the Application.

28. Any adjustment of weight in accordance with this clause 7.3 will be made available to the Buyer through the “order” section of the Application.

16. No returns or exchange

29. The Buyer agrees that Goods will not be subject to any return or exchange after receipt of delivery.

30. If there is any dispute between the Buyer and any Seller as to a return or exchange of Goods, the Buyer must contact Freshey immediately, and Freshey will use its reasonable endeavours to resolve the dispute.

17. Star Rating

31. The Buyer accepts that Star Ratings given to Sellers in the Application are an indicative guide only, and Freshey accepts no liability in relation to any Star Rating given to a Seller.

32. The Buyer acknowledges and agrees that any Star Rating given by it to a Seller will be made on a fair, reasonable and calculated basis.

33. Freshey may, in its sole and absolute discretion:

11. modify or remove any Star Rating in its sole and absolute discretion; and

12. resolve any dispute a Seller may have with its Star Rating, such decision to be final.

8. FEE AND PAYMENT

18. Payment

34. The Buyer accepts that Freshey will:

13. automatically deduct payment for the purchase price of any Goods purchased by the Buyer through the use of the Application, from the Buyer’s Account; and

14. issue the Buyer an invoice for such purchase of Goods upon Checkout.

35. The parties agree that reports will be made available by Freshey:

1. at the end of each month to the Buyer; and

2. through Freshey’s reporting portal within its website,

as to the purchases made through the Application, payments made by the Buyer in respect of such purchases, the credit card surcharge set out in clause 4.2(a) and Minimum Account Balance as applicable.

36. If the Buyer wishes to obtain further information, it may contact Freshey.

37. The Buyer agrees that any final payment of the Goods may be subject to change due to adjustments necessary due to changes in weight of Goods during transit.

38. Such adjustment will be at the sole discretion of Freshey with regard to the actual weight of Goods upon Acceptance.

9. FRESHEY AS PAYMENT AGENT

19. Payment agent

The Buyer acknowledges and agrees that the Seller appoints Freshey as its agent authorised to receive payments on the Seller’s behalf for Goods sold to the Buyer through the Application of the amounts stipulated by the Seller.

10. LAWS AND APPROVALS

20. Laws

The Buyer must purchase the Goods in accordance with all Laws including, to the extent permissible by Law, complying with any obligation or requirement which a Law places on Freshey as though it had been placed on the Buyer.

21. Licences

39. The Buyer must at its own cost:

3. hold, at all times, valid Licences relating to it's respective business;

4. do all things necessary to keep such Licences valid and effective;

5. take all steps necessary to renew, extend or amend such Licences when appropriate; and

6. provide evidence to Freshey that it has obtained and continues to maintain all such Approvals if requested at any time by Freshey.

40. The Buyer must, to the extent permitted by Law, indemnify and hold harmless Freshey against any Loss which Freshey may suffer arising out of, or in connection with, the Buyer not complying with a Licence (or causing Freshey to be in breach of a Licence).

22. Approvals

41. The Buyer must, at its own cost:

7. obtain all Approvals which are necessary for the purchase of the Goods;

8. do all things necessary to keep such Approvals valid and effective;
9. take all steps necessary to renew, extend or amend such Approvals when appropriate;

10. provide evidence to Freshey that it has obtained and continues to maintain all such Approvals if requested at any time by Freshey;

11. immediately notify, and copy to, Freshey all notices, requisitions and other correspondence relevant to the Goods received in respect of such Approvals by the Buyer or any supplier; and

12. use reasonable endeavours to assist Freshey in obtaining any Approvals, including providing any relevant or necessary technical information or as otherwise directed by the Buyer.

42. The Buyer must, to the extent permitted by Law, indemnify and hold harmless Freshey against any Loss which Freshey may suffer arising out of, or in connection with, the Buyer not complying with an Approval (or causing Freshey to be in breach of an Approval).

11. CONFIDENTIALITY

23. Non-disclosure

Subject to clauses 4 and 11.2, neither party may disclose Confidential Information of the other party without the prior written consent of the other party (which consent must not be unreasonably withheld).

24. Permitted disclosure

43. Either party may disclose Confidential Information of the other party which:

13. at the time of disclosure is in the public domain, but not as a result of a breach of clause 11.1;

14. is required to be disclosed for the purposes of performing its obligations under this Contract;

15. is required to be made in relation to any procedure for discovery of documents and any proceedings before any court, tribunal or regulatory body;

16. is required to be disclosed to its professional advisers, bankers or financial advisers;

17. is required to be disclosed by Law, court order or any applicable stock exchange listing rules; or

18. is necessary or desirable to be disclosed to give effect to the licences of Intellectual Property Rights granted to it under this Contract.

44. The Buyer authorises the use of its Confidential Information by the Application and Freshey for the purposes of the provision of the Application to buyers and sellers of Goods.

25. Return of Confidential Information

45. The Buyer must:

19. return to Freshey any of Freshey’s Confidential Information on demand; or
20. when directed by Freshey delete or destroy any Confidential Information of Freshey including any such Confidential Information obtained or stored electronically,

except to the extent that the Confidential Information is incorporated in documents which the Buyer is required to retain under any Law.

46. For the avoidance of doubt, nothing in this clause 11.3 or otherwise will require Freshey to return to the Buyer, or delete or destroy, any Buyer Background Materials or Application Materials.

26. Privacy Laws

47. Each party must comply with all Privacy Laws in relation to Personal Information, whether or not the party is an organisation bound by the Privacy Act 1988 (Cth).

48. The Buyer acknowledges and agrees that it has read and understood Freshey’s document entitled “Privacy Policy”.

27. No publicity

The Buyer must not advertise, publish or release any information, publication, document or article for publication concerning the Application, or sale of Goods under this Contract in any media without the prior written approval of Freshey, who may place conditions on such approval. The Buyer must refer any enquiries concerning the Application, or sale of Goods through the Application from any media to Freshey as soon as reasonably practicable.

12. INTELLECTUAL PROPERTY

28. Intellectual property

The Buyer:

49. represents and warrants to Freshey that the Buyer is the legal and beneficial owner of, or is entitled to use (or will on creation own or be entitled to use, assign and licence the Intellectual Property Rights in the Buyer Background Materials and Application Material (as the case may be);

50. acknowledges that it does not own any Intellectual Property Rights in the Freshey Background Materials;

51. may not copy or reproduce any of the Freshey Background Materials;

52. may not attempt in any way to decompile or reverse engineer the Application or Freshey Background IP;

53. must ensure that the Freshey Background Materials are only used as necessary for the purposes of this Contract; and

54. must not disclose any Freshey Background Materials, or any information or data generated as a result of selling the Goods or using the Application without the prior written consent of Freshey.

29. Rights granted to Freshey and Buyer

55. The Buyer hereby grants to Freshey an exclusive, royalty free, perpetual, irrevocable, worldwide licence (including the right to sub-licence) to (itself or using

third party contractors) use, reproduce, adapt and further develop all Application Materials.

56. The Buyer grants to Freshey an exclusive, royalty free licence to use, reproduce, modify, adapt and further develop all Intellectual Property Rights in those portions of the Buyer Background Materials which are required to enable Freshey to exercise any rights and perform any obligations under this Contract.

57. Freshey grants to the Buyer a non-exclusive, royalty free licence during the Term to use all Intellectual Property Rights in those portions of the Freshey Background Materials which are required to enable the Buyer to use the Application.

30. Indemnity by the Buyer

The Buyer indemnifies and holds harmless Freshey against any Loss or claim arising from:

58. any infringement or alleged infringement of Intellectual Property Rights owned by a third party in respect of any IP Materials provided as part of the sale of Goods (Infringement Claim) or use of the Application;

59. any breach of the warranties set out in clause 12.1; and

60. the conduct of any Infringement Claim.

13. TERMINATION

31. Termination

61. Freshey may terminate this Contract in its sole and absolute discretion at any time without cause and for any reason.

62. Upon termination, if Freshey is not satisfied that the Buyer has satisfied its obligations under this Contract, then the Buyer will be liable to Freshey for the amount that is reasonably necessary to cover the expected costs of performing those obligations.

63. The amount to which the Buyer is entitled upon termination of this Contract will be limited to any outstanding amounts owing by it to a Seller and Freshey for Goods following Acceptance.

14. DISPUTE RESOLUTION

32. Dispute

64. If a Dispute arises between the Buyer and Freshey, the Dispute must be dealt with in accordance with this clause 14.

65. Where a Dispute arises, either party may give a Dispute Notice to the other party specifying and providing details of the Dispute.

66. Unless a party has complied with the procedure to resolve the Dispute by negotiation of the Dispute under clause 14.2 that party may not commence the dispute resolution proceedings under clause 14.3.

33. Negotiation

67. If a Dispute Notice is issued under clause 14.1(b), the Dispute will be referred to the respective managing directors of the parties.
68. The respective managing directors of the parties must within:

21. 10 Business Days of receipt of the Dispute Notice under clause 14.1(b) or

22. such longer period of time as the respective managing directors agree in writing,

meet and undertake genuine and good faith negotiations with a view to resolving the Dispute within 20 Business Days of receipt of the Dispute Notice under clause 14.1(b) and, if they cannot so resolve the Dispute, the Dispute must be referred to mediation in accordance with clause 14.3.

34. Mediation

69. In the event that the parties are unable to resolve the Dispute under the process contemplated by clause 14.2, either party may by Notice to the other party refer a Dispute to resolution by mediation in accordance with the procedures set out in this clause 14.3.

70. The mediation is to be conducted in accordance with the Resolution Institute’s then current mediation rules and guidelines for resolution within 10 Business Days (or such other period agreed between the parties).

71. If a dispute is referred to mediation in accordance with this clause 14.3:

23. any meetings organised will be held in Sydney or such other place as may be agreed by the parties;

24. the parties agree to appoint either Campbell Bridge SC, John West QC or Hugh Paynter as mediator;

25. the parties agree to pay costs as directed by the mediator; and

26. both parties may be represented by a duly qualified legal practitioner.

35. Continuity

Despite the existence of a Dispute, the Buyer must continue to perform its obligations under this Contract.

36. Injunctive or urgent relief

Nothing in this clause 14 prejudices either party’s right to institute proceedings to seek injunctive or urgent declaratory relief in respect of a Dispute under this clause 14 or any other matter arising under this Contract.

37. General

The Parties acknowledge and agree that Freshey is not responsible for the resolution of any Dispute between the Buyer and a Seller.

15. LIMITATION OF LIABILITY

38. Limitation of liability

The aggregate liability of Freshey to the Buyer arising out of or in connection with this Contract will in no event exceed $1000 (Liability Limitation).

39. Exclusion of liability for Consequential Loss

Freshey will not be liable to the Buyer for any Consequential Loss suffered or incurred by the Buyer arising out of or in connection with this Contract.

16. NOTICES

40. Notices

72. A notice, consent or other communication under this document is only effective if it is in writing, signed and either left at the addressee's address or sent to the addressee by mail, fax or email/electronic form such as email.

73. A notice, consent or other communication that complies with this clause is regarded as given and received:

27. if it is delivered, when it has been left at the addressee's address;

28. if it is sent by mail, three Business Days after it is posted;

29. if it is sent by fax, when the addressee actually receives it in full and in legible form; and

30. if it is sent in electronic form when the sender receives confirmation on its server that the message has been transmitted:

3. if it is transmitted by 5.00 pm (Sydney time) on a Business Day – on that Business Day; or

4. if it is transmitted after 5.00 pm (Sydney time) on the Business Day, or on a day that is not a Business Day – on the next Business Day.

74. A person's addresses and fax number are those registered during the sign up process of Freshey.

17. AMENDMENT AND ASSIGNMENT

41. Amendment

75. Freshey may, at any time, modify this Contract at its sole discretion by notice to the Buyer.

76. By continuing to use the Application following notice in accordance with clause 17.1(a), the Buyer agrees to be bound by this Contract as amended.

42. Assignment

77. The Buyer may only assign, encumber, declare a trust over or otherwise deal with its rights under this document with the written consent of the Freshey.

78. Subject to paragraph (a), a party may assign, encumber, declare a trust over or otherwise deal with its rights under this document without the consent of any other party, and may disclose to any potential holder of the right, or an interest in the right, any information relating to this document/ or any party to it.

18. GENERAL

43. Relationship of the parties

79. Nothing in this Contract gives a party authority to bind any other party in any way.

80. Nothing in this Contract imposes any fiduciary duties on a party in relation to any other party.

44. Governing law

81. This document and any dispute arising out of or in connection with this document is governed by the laws of the State of New South Wales within the Commonwealth of Australia.

82. Each party submits to the exclusive jurisdiction of the courts of that State and courts of appeal from them, in respect of any proceedings arising out of or in connection with this document.

45. Liability for expenses

Each party must pay its own expenses incurred in negotiating, executing, stamping and registering this document.

46. Giving effect to documents

Each party must do anything (including execute any document), and must ensure that its employees and agents do anything (including execute any document), that any other party may reasonably require to give full effect to this document.

47. Operation of this document

83. Subject to paragraph (b), this document contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.

84. Any right that a person may have under this document is in addition to, and does not replace or limit, any other right that the person may have.

85. Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change the intended effect of this document.

48. Operation of indemnities

86. Each indemnity in this document survives the expiry or termination of this document.
87. A party may recover a payment under an indemnity in this document before it makes the payment in respect of which the indemnity is given.

49. Survival

Clauses 1, 4.1(i), 10.2(b), 11, 12, 14, 15 and 18 survive the expiry or termination of this document.

50. Inconsistency with other documents

If this document is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency.