Terms & Conditions - Seller

RECITALS:

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

2. Freshey wishes to permit the Seller to sell its Goods using the Application.

3. The Seller 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 the Seller’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 Seller under the terms of this Contract.

Application Materials means all IP Materials created or produced by or on behalf of the Seller 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 those persons or entities seeking to purchase or purchasing Goods from the Seller through the use of the Application.

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

Commission means an amount of 7% of the final sale price of the applicable Goods (or as otherwise agreed upon).

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:

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

4. product, customer, marketing or pricing information;

5. information in relation to this Contract;

6. Freshey Background Materials;

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

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

9. 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 by the Seller to the Drop-off Point.

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).

Drop-off Point means the drop-off point in respect of the Goods, nominated by Freshey upon registration of the Seller’s Account.

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.

Intended Purpose means suitable for packaging and transportation, and safe in all respects for human consumption.

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 wholesale food products, including the Goods, in the Territory.

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

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).

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

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 Seller is a Privacy Law for the purposes of this Contract.

Sales Contract means a sales contract between the Seller and a Buyer formed in accordance with clause 5.1(b) on the terms set out in Schedule 1.

Seller Background Material means all IP Materials:

1. created by, or on behalf of, the Seller 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 Seller in the course of supplying the Goods, but excluding the Application Materials.

Freshey Background Material means all IP Materials owned or licensed by Freshey and provided by, or on behalf of, Freshey to the Seller 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 over a period of time.

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

2. Rules for interpreting this document

10. 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.

11. 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.

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

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

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

15. 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.

16. 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.

17. 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.

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

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

20. 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:

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

22. 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

23. Subject to compliance by the Seller with clause 4.1(a) on and from the Commencement Date, Freshey must permit the Seller to download, install and use the Application.

24. The Seller acknowledges and agrees that:

8. the entry by Freshey into this Contract;

9. 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 Seller can use the Application to display Goods for sale, and the Seller and a Buyer may then agree to enter into a Sales Contract; and

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

3. OBLIGATIONS OF SELLER

6. Obligations of Seller

The Seller must:

25. pay Freshey the Commission;

26. at all times maintain its Licence; and

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

4. USE OF APPLICATION

7. Registration and creation of an Account

28. In order to access and use the Application the Seller must register with Freshey to create an Account.

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

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

31. The Seller must:

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

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

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

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

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

2. any Linked Account user.

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

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

36. anonymously; and

(ii)        protecting the identity of the Seller,

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

8. Uploading of information

37. The Seller warrants that:

3. it actually holds in its possession the Goods uploaded to the Application for immediate sale;

4. all information uploaded by the Seller to the Application concerning the Goods is accurate and in accordance with the details of the Goods provided by the Seller;

5. the Goods offered for sale were caught, harvested or for future harvest by the Seller as stated by the Seller within the information uploaded to the Application by the Seller in relation to the Goods;

6. the Goods are otherwise of merchantable quality and fit for their Intended Purpose;

7. by offering the Goods for sale and using the Application that it does not breach any Law, Licence or the requirements of any Authority; and

8. any photographs uploaded to the Application are the property of the Seller, do not breach any Intellectual Property Rights, and are images of the actual Goods offered for sale on the Application.

38. The Seller agrees that the warranties in clause 4.2(a) are repeated by it on every occasion that it offers Goods for sale through the Application and apply to each item of Goods.

39. Any breach by the Seller of clause 4.2(a) will result in immediate removal from the Application by Freshey and, if applicable reporting to the relevant Authority for further action.

40. Freshey reserves the right to remove any information or content on the Application, whether or not uploaded by the Seller, which it deems to be objectionable, false or misleading or not compliant with any Licence, Law or the requirements of any Authority.

9. System generated price guide

41. The Seller acknowledges and agrees that:

9. the Application will automatically generate a price guide for Goods based on the data collected by Freshey through the Application in relation to sales and market forces; and

10. such price guide for Goods is an indicative guide only, and the Seller may set its own sale price for its Goods.

42. Freshey does not warrant:

11. the accuracy of the price guide for Goods generated by the Application; or

12. the applicability of the price guide generated by the Application to the Seller’s Goods.

43. The Seller uses the Application and sells its Goods through the Application entirely at its own discretion and accepts full risk as to the final sale price of the Goods.

5. SALES CONTRACTS

10. Formation of Sales Contracts

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

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

46. The Seller agrees that upon:

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

14. 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.

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

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

49. The Seller acknowledges and agrees that:

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

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

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

50. The Seller accepts that upon confirmation of the purchase of Goods by a Buyer, the relevant Goods displayed for sale on the Application will be automatically removed from the Application, and will no longer be visible to Buyers.

6. ACCESS TO APPLICATION

11. Access

51. Subject to compliance by the Seller with clause 4.1(a), upon the Commencement Date Freshey shall give to the Seller access to the Application.

52. The Seller acknowledges that any delay of failure by Freshey in providing access to the Application shall not be a breach of the Contract, howsoever caused.

53. The Seller acknowledges and agrees that:

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

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

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

7. DELIVERY AND ACCEPTANCE

12. Delivery

54. The Seller must Deliver the Goods to the Drop-off Point by the time nominated by Freshey for Delivery.

55. Subject to the Seller’s compliance with clause 7.1(a), Freshey will be responsible for shipping the Goods to the Buyer from the Drop-off Point.

56. The Seller agrees that, as between the Buyer and Seller, all costs of transport and shipping from the Drop-off Point to the Buyer shall be the responsibility of the Buyer.

57. Freshey takes no responsibility for transport or shipping from the Drop-off Point to the Buyer.

58. The Seller accepts liability for any late or incorrect Delivery of Goods to the Drop-off Point, including any associated handling and storage charges which may be incurred by Freshey, and which Freshey may recover in full from the Seller.

59. If a Delivery is missed by the Seller, Freshey will use reasonable endeavors to transport the relevant Goods to the Buyer as soon as possible thereafter.

60. The Seller acknowledges and agrees that Freshey does not warrant that any late Deliveries by the Seller can or will be transported to the relevant Buyer.

13. Packaging

The Seller must package all Goods sold using the Application as required by Freshey and in accordance with the document entitled “Freshey Standard Packaging Requirements”, which the Seller acknowledges and agrees may be updated from time to time.

14. Acceptance

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

15. Harvest

61. Subject to clause 7.4(b), following the harvest 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.

62. The adjustment contemplated by clause 7.4(a) may in no circumstances exceed 25% of the original stated weight of the Goods uploaded on the Application.

63. The Seller may not under any circumstances adjust the price of such Goods stated in clause 7.4(a).

16. No returns or exchange

64. The Seller agrees that Goods will not be subject to any return or exchange.

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

17. Star Rating

66. The Seller accepts that:

21. the Application generates, through information received from Buyers, for each seller utilising the Application, a Star Rating;

22. the Star rating application to the Seller will be visible to Buyers.

67. Freshey accepts no liability in relation to any Star Rating given to a Seller.

68. The Seller may not attempt to avoid or change its Star Rating, by opening a new account.

69. Freshey may, in its is absolute discretion, refuse to allow the registration of a new account which it considers has been made in order to avoid a Star Rating.

70. The Seller acknowledges and agrees that if its Star Rating falls below a 2.5 Star Rating out of the total of a 5 Star Rating, Freshey may at its sole and absolute discretion, suspend or terminate the Seller’s Account.

71. If the Seller disputes its Star Rating, it must provide notice of such dispute to Freshey.

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

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

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

8. FEE AND PAYMENT

18. Payment

73. Freshey will make payment for any Goods sold by the Seller through the use of the Application by the close of business:

25. where the Goods have been delivered on a Business Day, that day; or

26. where the Goods have been delivered on a day which is other than a Business Day, on the next Business Day.

74. The Seller acknowledges and agrees that:

27. it must pay Freshey the Commission for sale of all Goods made through the Application; and

28. such Commission will be automatically deducted from each payment by Freshey to the Seller under clause 8.1.

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

29. at the end of each month to the Seller; and

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

as to the sales made through the Application, payments made to the Seller in respect of such sales and Commission paid to Freshey.

76. If the Seller wishes to obtain further information, it may contact Freshey.

77. The Seller 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.

78. The adjustment referred to in clause 8.1(e) 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

79. The Seller appoints Freshey as its agent authorised to receive payments on its behalf for Goods sold to Buyers through the Application of the amounts stipulated by the Seller.

80. Freshey warrants payment to the Seller for all transactions completed and Goods Delivered through the Application.

10. LAWS AND APPROVALS

20. Laws

The Seller must provide 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 Seller.

21. Licences

81. The Seller must at its own cost:

1. hold, at all times, a valid Licence;

2. do all things necessary to keep such Licence valid and effective;

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

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

82. The Seller 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 Seller not complying with a Licence (or causing Freshey to be in breach of a Licence).

22. Approvals

83. The Seller must, at its own cost:

5. obtain all Approvals which are necessary for the provision of the Goods;

6. do all things necessary to keep such Approvals valid and effective;

7. take all steps necessary to renew, extend or amend such Approvals when appropriate;

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

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

10. use reasonable endeavors to assist Freshey in obtaining any Approvals, including providing any relevant or necessary technical information or as otherwise directed by the Seller.

84. The Seller 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 Seller 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

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

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

12. is required to be disclosed for the purposes of performing its obligations under this Contract;
13. is required to be made in relation to any procedure for discovery of documents and any proceedings before any court, tribunal or regulatory body;

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

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

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

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

25. Return of Confidential Information

87. The Seller must:

17. return to Freshey any of Freshey’s Confidential Information on demand; or

18. 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 Seller is required to retain under any Law.

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

26. Privacy Laws

89. 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).

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

27. No publicity

The Seller 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 Seller 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 Seller:

91. represents and warrants to Freshey that the Seller 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 Seller Background Materials and Application Material (as the case may be);

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

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

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

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

96. 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 Seller

97. The Seller 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.

98. The Seller 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 Seller Background Materials which are required to enable Freshey to exercise any rights and perform any obligations under this Contract.

99. Freshey grants to the Seller 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 Seller to use the Application.

30. Indemnity by the Seller

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

100. 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;

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

102. the conduct of any Infringement Claim.

13. TERMINATION

31. Termination

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

104. Upon termination, if Freshey is not satisfied that the Seller has satisfied its obligations under this Contract, then the Seller will be liable to Freshey for the amount that is reasonably necessary to cover the expected costs of performing those obligations.
105. The amount to which the Seller is entitled upon termination of this Contract will be limited to any outstanding amounts owed to it from Freshey for Goods following Acceptance.

14. DISPUTE RESOLUTION

32. Dispute

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

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

108. 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

109. If a Dispute Notice is issued under clause 14.1(b), the Dispute will be referred to the respective managing directors of the parties.

110. The respective managing directors of the parties must within:

19. 10 Business Days of receipt of the Dispute Notice under clause 14.1(b) or

20. 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

111. 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.

112. 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).

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

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

22. the parties agree to appoint a mutually agreeable mediator;

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

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

35. Continuity

Despite the existence of a Dispute, the Seller 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 Seller and a Buyer.

15. LIMITATION OF LIABILITY

38. Limitation of liability

The aggregate liability of Freshey to the Seller 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 Seller for any Consequential Loss suffered or incurred by the Seller arising out of or in connection with this Contract.

16. NOTICES

40. Notices

114. 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.

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

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

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

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

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

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

2. 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.

116. A person's addresses and fax number are those set out during the Application process to Freshey.

17. AMENDMENT AND ASSIGNMENT

41. Amendment

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

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

42. Assignment

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

120. 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

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

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

44. Governing law

123. 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.

124. 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

125. 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.

126. 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.

127. 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

128. Each indemnity in this document survives the expiry or termination of this document.

129. 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(g), 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.