THIS AGREEMENT is made between KAREN ELIZABETH LAMBECK (ABN 498 231 263 65) trading as KARRABILLI - EATS (the “Company”) and the Wholesaler.

1. Definitions

1. Unless otherwise provided in this Agreement:
   Agreement means this agreement together with any amendments or variations made in writing from time to time. 
   Company means Karen Elizabeth Lambeck trading as Karrabilli - Eats.
   Commencement Date means the date of this Agreement;
   Copyright means copyright as defined in or capable of protection;
   Wholesaler means any wholesaler who makes an Order pursuant to this Agreement;
   End Date means twelve (12) months from the Commencement Date;
   Fee(s) means the total fee payable in respect of each Order; 
   Intellectual Property means and includes all intellectual property rights of the Company in respect to the Product, including but not limited to all copyright (both present and future subsisting throughout the world), registered and unregistered trademarks, trade names, slogans, logos, emblems, designs, drawings, trade secrets, and visual representations;
   Order means each order placed by the Wholesaler for the Product;
   Minimum Order Quantity means the minimum amount of Product which can be ordered in each Order to receive wholesale prices being $150.00 per Order, or as amended by the Company from time to time.
   Product means any of the treats set out in Schedule 1 created by the Company; and
   Price List means the wholesale price list for the Products as set out in Schedule 1 and as revised by the Company from time to time in accordance with this Agreement.

2. Agreement and Supply of products

1. By placing an Order with the Company, the Wholesaler agrees to be bound by this Agreement. 

2. During the term of this Agreement, the Wholesaler agrees to buy from the Company and the Company agrees to sell to the Wholesaler, any combination of Products totalling at least the Minimum Order Quantity;

3.  In the event that the Wholesaler breaches any term of this Agreement, then the Parties agree that this Agreement may be terminated by the Company and the Company may decline to provide Product to the Wholesaler.

3. Orders for products and prices

1.  The Wholesaler must place Orders for the Product to the Company;

2.  Each Order must be equal to, or exceed, the Minimum Order Quantity; 

3.  Subject to clauses 2(b) and 4(d), the Company must sell the Products to the Wholesaler, and the Wholesaler must purchase the Products from the Company, in accordance with the Orders placed at the full list price as shown in the Company’s Price List, set out at Schedule 1 annexed hereto and as amended by the Company at its sole discretion from time to time;

4.  The Company may from time to time provide the Wholesaler with notice of a reasonable variation to the Company’s Price List. Any variation to the Company’s Price List will take effect thirty (30) days after service of the notice and will not apply to any Orders placed by the Wholesaler prior to service of the notice of the variation.

4. Payment for products

1. The Wholesaler agrees to pay the Fees in full within seven (7) days of delivery and receipt of invoice.

2. Unless otherwise agreed, once payment of the Fees in respect of an Order has been made, the Wholesaler will only be entitled to a refund in accordance with the terms of this Agreement. 

3. All invoices will be issued to the Wholesaler and payable by the Wholesaler in AUD dollars. 

4. In the event that an invoice is not paid within seven (7) days of the due date, the Company reserves the right to charge late payment interest at a rate of one and a half percent (1.5%), not to exceed the maximum permitted by law.

5. Dishonoured payments will incur a $25.00 administrative fee. In the event that the Wholesaler’s account incurs a second dishonoured payment, the Company reserves the right to terminate this Agreement.  

6. Should it become necessary for the Company to enforce any term of this Agreement either through legal representation, collection agency, or directly through a small claims Court, then the Wholesaler agrees that it shall pay all reasonable legal fees, agency fees, court costs, and other reasonable collection costs.

5. Delivery Fees

  1. Delivery fees to Donnybrook, Collie and Bunbury are waived at the time of this agreement, as long as minimum order amount is met as in Clause (1).

6. Cancellation

1. If the Wholesaler seeks to cancel an Order for any reason, the Company will provide a refund, provided that notice of the cancellation is received by the Company before they have begun processing the Order. 

2. In the event that the Company has already commenced processing the Order when it receives notice of cancellation, the Company will be unable to provide a refund and the Wholesaler remains liable to pay the Fees in full for the Order.

7. Dispatch of products to Wholesaler

1. The Company must dispatch all Products the subject of any Order by such means as has been agreed between the parties. 

2. In the event that the Company anticipates any delay in respect to the dispatch of Products, the Company will notify the Wholesaler on receipt of the Order or as soon as the Company is aware of such delays.

3. The Company will not be liable to the Wholesaler for any delay or failure on the Company’s part to supply any Product if the delay or failure has been caused by the unavailability of such Product for any cause beyond the control of the Company but shall take all reasonable steps to ensure such availability, and shall advise the Wholesaler of any unavailability immediately.

4. Risk in any Products dispatched to the Wholesaler pursuant to this clause will pass to the Wholesaler once the Products have been delivered to and received by the Wholesaler.

8. Refund and Return of Product

1. The Wholesaler must inspect and assess the Products prior to any sale.

2. In the event that the Wholesaler considers any of the Products to be of poor quality or not in saleable condition:

   1.    the Wholesaler must provide the Company with notice and photographic evidence of any faults of that Product which they reasonably consider faulty to the Company within seven (7) days of delivery for review by the Company. 

   2.   If the Company agrees that the items are faulty, the Company will provide the Wholesaler with either a replacement, or a credit for a replacement item of the same value paid by the Wholesaler for that item under the Order, which the Wholesaler may apply to any future Order.

   3.     If any credits issued pursuant to clause 8(b)(ii) remain after the final Order has been placed by the Wholesaler under this Agreement, the Company will pay the value of that credit to the Wholesaler within thirty (30) days of the End Date. 

   4. If the Company, at its sole discretion, does not agree with the Wholesaler that items are faulty, the Company will not provide any replacement, credit or money for the goods. 

3.  The Wholesaler is responsible for all costs incurred as a result of failing to detect faulty Product prior to sale, including but not limited to refunds to customers.

9. Resale prices

1.  The Company may provide to the Wholesaler, by way of recommendation only, a list of prices at which the Products may be resold;

2. The parties agree that:

   1. the prices set out in that list are only recommended prices and there is no obligation on the part of the Wholesaler to comply with those recommendations; 

   2. this clause 9(b) is taken to be incorporated by reference into every price list issued by the Company to the Wholesaler under this Agreement.

10. Conditions for resale

1. The Wholesaler must at all times during this Agreement offer for sale and sell the Products as Company branded products and according to the specifications supplied by the Company to the Wholesaler from time to time, either generally or in any particular case; and

2. The Wholesaler must not make any representation or give any warranty on behalf of the Company in respect of the Products other than those contained in the Company’s conditions of sale as current at the time of the offering for sale or the sale.

11. Tampering with products and labelling requirements

1. The Wholesaler must sell the Products in the same condition as they are received by them; and

2. The Wholesaler must not alter, remove, or in any way tamper with any of the Company’s marks or numbers on the Product.

12. Relationship between parties

1. The parties agree that this Agreement does not constitute the Wholesaler as agents of, or as partners with, the Company for any purpose whatsoever; and

2. The Wholesaler must not pledge the credit of the Company to any third party at all.

13. Effect of delays in delivery

1. The Wholesaler has no right of action against the Company in respect of any loss occurring to them by reason of any delay in delivery caused by, or contributed to by, shortage of stock or delays in transit or delays caused by accidents or strikes or other delays otherwise outside of the control of the Company.

2. In such an event, the Company is to inform the Wholesaler of any such delay as soon as possible, if not within twenty-four (24) hours of such an event occurring.

14. Confidential Information

1. Both Parties acknowledge that for the duration of this Agreement, Confidential Information may be disclosed to them by the other Party.

2. Both Parties must keep the Confidential Information secret and confidential and must not disclose to any person or make known in any manner any part of the Confidential Information. Both Parties must also keep the Confidential Information in a secure place so as to ensure that unauthorised persons do not have access to the Confidential Information.

3. Both Parties must on the determination or termination of this Agreement, return all Confidential Information to the other Party.

4. Both Parties indemnify and agrees forever to keep the other Party indemnified from and against any loss or damage suffered by that Party arising out of any unauthorised use or disclosure of any Confidential Information. This obligation is a continuing obligation separate and independent of other obligations and shall survive the expiration or termination of this Agreement.

5. The Wholesaler acknowledges that all Intellectual Property relating to the Products are the property of the Company.

15. Retention of Title

1. Title of any Product supplied by the Company to the Wholesaler does not vest in the Wholesaler until such time as the Wholesaler has paid the Company in full for that Product ordered.

2. The Company also claims property, or an interest, in any manufactured or processed goods of which the Products supplied by the Company to the Wholesaler have become part during any manufacturing or reworking.

3. The Company shall retain title in:

1. 1. All artwork in respect to the Product(s);

   2. The name(s) of the Product(s);

   3. Any copy, instructions of use and in the like in respect to the Product(s);

   4. All taglines, slogans and logos in respect to the Product(s);

   5. Recipes for the Product(s);

   6. Packaging of the Product(s); and

   7. Any and all promotional and marketing material in respect to the Product(s).

16. Trade Mark Licencing

1. The Company hereby grants to the Wholesaler a royalty-free, fully-paid, non-transferable, non-exclusive right and licence to use the Company’s registered and licenced trademarks, logos, taglines (“Company’s Licenced Marks”) and the like for the sole purpose of the sale of the Product during the Term and pursuant to this Agreement.

2. The Wholesaler acknowledges and agrees that the Company’s Licensed Marks and all rights therein and all goodwill pertaining thereto belong exclusively to the Company, and that all goodwill that may accrue in the Company’s Licensed Marks as a result of the Wholesaler’s use thereof shall enure to the Company’s benefit.

17. Intellectual Property

1. The Wholesaler hereby: 

   1. assigns all right, title and interest, including any and all intellectual property rights, in the Products and the marketing and promotional activity carried out pursuant to this Agreement to the Company;

   2. acknowledges that, as a result of the assignment in sub clause (a), the copyright in any material created by either the Wholesaler or the Company pursuant to this Agreement is the property of the Company.

2. In the event that the Wholesaler does not notify the Company of any such intellectual property, and such intellectual property is used in the course of carrying out its obligations pursuant to this Agreement then such intellectual property is automatically transferred to the Company.

3. The Company grants to the Wholesaler a royalty-free, fully–paid, non-transferable and non-exclusive right and licence for the duration of the Term to use the Company’s Licenced Marks solely and limited for the purpose of carrying out the terms of this Agreement.

4. The Wholesaler acknowledges that it acquires no beneficial interest in the Company’s Intellectual Property which at all times remains the property of the Company.

18. Arbitration clause

1.  All questions, disputes, or differences which arise between the parties with respect to this Agreement or its subject matter are to be referred to a single arbitrator;

2.  If there is any dispute concerning the amount of any money due or payable by either party to this Agreement to the other under this Agreement a certificate as to the amount signed by the accountant for the time being of the Company is conclusive and binding on both parties.

19. Governing Law

This agreement is governed by, and shall be construed in accordance with, the laws of Western Australia, Australia and the parties irrevocably agree that the courts of Western Australia, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this agreement or its subject matter or formation (including non-contractual disputes or claims).

20. Severability

If any term of this Agreement is to any extent invalid, illegal, or incapable of being enforced, such term shall be excluded to the extent of such invalidity, illegality, or unenforceability; all other terms hereof shall remain in full force and effect; and to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid, illegal or unenforceable term. If application of this severability provision should materially and adversely affect the economic substance of the transactions contemplated hereby, the party adversely impacted shall be entitled to compensation for such adverse impact, provided the reason for the invalidity, illegality or unenforceability of a term is not due to serious misconduct by the party seeking such compensation.  

21. Force Majeure

The Parties shall not be liable to the other under the terms of this Agreement for any failure to perform or delay in performance of this Agreement due to any cause beyond the reasonable control of the Party whose performance is so affected, including, without limitation, strikes, explosions, floods, riots, lockouts, pandemics, epidemics, injunction, interruption or transport accidents, inability to obtain equipment, government action, mechanical breakdown, interruption to internet service, any interruption, suspension, failure or termination by any third party media or social network provider, or an act of God (collectively, “Force Majeure”).  If the Force Majeure event continues for ninety (90) consecutive days or is reasonably expected to continue for ninety (90) consecutive days, then the Party other than the non-performing Party may terminate this Agreement upon thirty (30) days prior written notice.

22. Indemnity and Guarantee

The Wholesaler is liable and indemnifies the Company in respect of any claim, action, damage, loss, liability, cost, expense, or payment which the Company may suffer or incur or is liable for as a result, whether directly or indirectly, of any breach of this Agreement.

23. Entire Agreement

This Agreement constitutes the entire agreement and understanding between the parties with regard to the subject matter.

24. Counterparts

This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all counterparts together shall constitute a single agreement.

25. Non-waiver

A party may exercise a right, power or remedy at its discretion, and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party does not prevent a further exercise of that or any other right, power or remedy. Failure by a party to exercise or delay in exercising a right, power or remedy does not prevent its exercise. A party is not liable for any loss caused by the exercise or attempted exercise of, failure to exercise, or delay in exercising the right, power or remedy.