Effective 01 October 2024

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‍ In this document, which are the terms and conditions of sale (Terms): we, our or us means the Specialty Probiotics Australia Pty Ltd ACN 677 626 014 from which you receive Products or Services and its officers, employees, agents, contractors and advisers; you or your means the purchaser of the Products or Services from us and includes the purchaser’s agent, contractor or representative (including a storage service provider or anyone who processes, on-sells or on-provides gooda or services incorporating the Products or Services); Agreed Basis means for an order of Products or Services which is accepted by us and under which you agree to accept:
(a) Delivery at our nominated point of collection or delivery within Australia;
(b) the volume of Product referred to in your order, together with all related Services; and
(c) liability for, and must pay all taxes (including any sales, value added or like impositions), levies, duties or fees in respect of each Delivery, provided that GST will be payable as provided in these Terms.
Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) as amended or replaced from time to time.

Deliver means:
(a) for Products:
(i) if we are responsible to arrange delivery, DAP Incoterms, with risk passing when those Products are uplifted from that transport; or
(ii) if you are responsible to arrange collection, EXW Incoterms, with risk passing when those Products are uplifted to transport,Unless we notify you otherwise on acceptance of your relevant order; or

(b) for all Services, by us having completed the supply or performance of Services (as reasonably determined by us),as appropriate, on the Agreed Basis; General Advice means advice, recommendations or statements concerning the Products or Services that we may give you.GST, supply, tax invoice and taxable supply have the same meaning as in A New Tax System (Goods and Services) Act 1999 (Cth);
‍Incoterms means the International Chamber of Commerce’s Incoterms 2020;
‍law means, other than in clauses 7 or 9, any law, by-law, legislation, rule, standard, regulation, registration, code, requirements or relevant good industry practice applicable to goods and services equivalent to, or incorporating, the Products or Services;
‍Pre-Test means a test to confirm that any factor agreed by you and us have been satisfied before Delivery;
Post-Test means a test to confirm that any factor agreed by you and us have been satisfied at or after Delivery;

Product means any goods or products supplied by us to you (in accordance with our specification for such goods or products at the time of its manufacture or processing) in response to your order.
Receptacle includes a pallet, drum, container, tank, bin, flexible packaging or crate or other receptacle.
Sales Tax means any tax or levy of a sales, value added or goods and service nature applicable to the sale or supply of any Product or Service from time to time under the law applicable to those Products or Services and these Terms, and includes stamp duty on these Terms or any transaction contemplated by them; and
Services means any services supplied or deemed to be supplied by us incidental to the Products.
Specialty Probiotics means one or more of Specialty Probiotics Australia Pty Ltd ACN 677 626 014, Specialty Probiotics Pty Ltd ACN 677 626 747
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1.2 These Terms apply to the provision or supply of all Products or Services by us to you under any order made by you and accepted by us. Subject to clauses 1.3, 1.4 and 6.1 these Terms supersede and exclude all prior or subsequent discussions, representations, terms or conditions of trade, all prior written or oral agreements and understandings between us and you and any other terms and conditions which you seek to apply to the supply of Products or Services by us to you, whether by way of incorporation into your order or otherwise.
1.3 We can amend these Terms at any time by notice to you (including by publishing amended terms on our website or otherwise making them available online) and the amended Terms will apply in respect of all orders placed by you after you receive that notice. We can also terminate any and all rights (whether express or implied) that you may have or believe that you have to place further orders under these Terms without cause on five days’ notice to you or such lesser timeframe as these Terms otherwise provide.
1.4 If there is a written agreement between you and us and there is any express inconsistency between that agreement and these Terms, the terms of that agreement apply to the extent of that inconsistency.
1.5 If any related body corporate, affiliate or associate of us, whether within or outside Australia, is involved in the sale or Delivery of Products or Services to you, their acts are deemed to be ours and they benefit from these Terms as though they are us (and we hold these Terms in trust on their behalf and may exercise them on their behalf). We are not obliged to tell you about any involvement by them. We also hold these Terms on behalf of our employees, agents, contractors and advisers and may exercise them on their behalf.
1.6 If we supply goods or products or perform services that are not Products or Services and no written agreement or terms and conditions apply expressly to that supply or performance, then those goods are deemed to be Products and those services are deemed to be Services and their supply is governed by these Terms.

2.1 Our quotations do not constitute anagreement to supply, perform or Deliver the Products or Services referred to therein.
2.2 We can amend or withdraw quotations at any time.
2.3 All quotations are subject to theseTerms. If you wish to purchase Products or Services referred to in our quotation, you must make an order within the timeframe stated in that quotation. If the quotation is given without specifying a timeframe, then the quotation lapses 48 hours after we send the quotation to you, without need forfurther notice.
2.4 All descriptive specifications, illustrations, qualities and data furnished by us or otherwise contained in catalogues or other advertising material (including but not limited to our website/s) are approximations only and are intended only as a genera description of the Products or Services. They are not incorporated within theseTerms or any agreement with you under these Terms, and do not form part of the description of theProducts or Services supplied or performed under any agreement between you and us unless expressly agreed otherwise.
2.5 To the maximum extent permitted by law :
(a)                 we do not represent, warrant orguarantee the accuracy or completeness of General Advice, or the resultsobtained through the use of the Products or application of the Services
(b)                 we expressly disclaim any liabilityfor any damage to you from reliance on General Advice
(c)                  General Advice must not be reliedon by you and if you do so, it is at your own risk; and
(d)                 you should make other appropriate enquiries to verify any General Advice having regard to your circumstances.
2.6               All samples, descriptions or visualrepresentations, or details of a good or product provided by us to you (including with a quotation or through anycatalogue) are representative only and the actual Product Delivered may differfrom such in a way that is not materially adverse to you, unless a specific qualityis required by you and this has beenadvised to us in writingwith the relevant order from you and accepted byus.
2.7               Your orders must be in writing witha full description of your requests for the Products or Services, the requesteddate and requested location for Delivery,and must set out a uniqueorder number that is reasonably acceptable to us. If you donot:(a)                 nominate a location for deliverythat we accept, the Agreed Basis will apply; or(b)                 request a date or timeframe fordelivery that we accept, we will Deliver within three months of the datewe notify you of our acceptance of your order.
2.8               Each order by you is an offer to usto purchase Products or Services subject to these Terms. No order is bindingon us unless we accept that order in writing. We need not accept anyorder.
2.9               Wemay accept your order in wholeor in part and will advise where and when Delivery will occur (takinginto account, but not being bound by, any requests in your order)and the applicable price.
2.10          These Terms are not an express or impliedoffer by us to supply any goods to, or performany service for, you or at your direction.
2.11          Once received by us, your ordercannot be cancelled without our written consent(even if we haven't accepted the order yet), and we may charge reasonable administration fees or require you to agree to other reasonable terms as a condition of us givingour consent.If you request an amendment or cancellation of your order after we have accepted it, we are not obliged toaccept your request but if we do then this maybe on the conditional on changes we require, including price,volume, Delivery or payment for work in progress.
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3.1                Nothing in this clause 3 excludes, restricts or modifies any statutory right, obligation or liability to the extent that doing so would contravene that statute or cause any part of clause 3 to be void.
3.2                We do not Deliver on a consignment or similar basis. We will use all reasonable efforts to Deliver all Products or Services to you in accordance with clause 2.7 and 2.9 and in the minimum number of loads required to fulfil that Delivery. Dates or timeframes specified for Delivery are not of the essence. If Delivery becomes commercially impractical for us (in our reasonable opinion) then we may Deliver the Products to a commercially reasonable substitute Delivery location and time selected by us and notified to you. We will not be liable for any loss or damage (including consequential, special, punitive, indirect or economic loss or damage, loss of contract, loss of production or from production stoppage, or loss of profit, revenue or opportunity) arising or resulting (directly or indirectly) from:
(a)                  a delay in Delivery that does not exceed 10 days;
(b)                  part or multiple Deliveries having occurred; or
(c)                   Delivery delay or failure due to circumstances beyond our reasonable control.
3.3                If you do not accept Delivery as scheduled or arranged by us for any reason (including where you decline to accept all or any part of the Delivery or delay in doing so), we may resell or resupply the Products or Services that were not accepted by you to a third-party and you will be liable for any loss incurred by us on that resale or resupply, and for all storage, Delivery and other logistics costs and any other costs incurred by us in doing so without affecting your obligation to pay for what you did accept.
3.4                If any of the Products become damaged or are otherwise unsaleable (Damaged Products) as a direct or indirect consequence of you not accepting Delivery, you indemnify us and must keep us indemnified for all costs and expenses incurred by us in connection with the Damaged Products, including arranging for their transport or disposal.
3.5                You shall make reasonable inspections of the Products upon arrival at the Delivery Point. You shall, within five (5) business days from the arrival of each delivery of the Products at the Delivery Point give written notice of rejection to Us on account of any visual external defects or shortcomings in quantity or that the Products delivered do not comply with the Warranty and which was apparent on reasonable visual inspection. In the absence of any such notice, the Customer shall be deemed to have accepted the delivery.
3.6                Any complaints as to latent defects or other non-conformity of the delivered Products and which are not discoverable by the visual inspection referred to at Clause 3.5 upon arrival at the Delivery Point shall be made in writing to Us immediately after You have discovered or ought to have discovered the defect or non-conformity, and in any case always prior to expiry of the Products shelf life.
3.7                If you do not notify us of any dispute or defect within the relevant timeframe set out in clauses 3.4 to 3.6, the relevant Products are deemed to have been Delivered by us and accepted by you in compliance with these Terms (including being deemed to have passed both the Pre-Test and the Post-Test) and any additional terms and conditions that you and we expressly agree apply to them.
3.8                If You alleges that any Products are defective, you shall keep the relevant Products in quarantine in accordance with relevant storage instructions, until the You and Us  have agreed on a process for investigating the Products. In the event the Parties cannot agree as to whether or not Products are defective, the Parties shall jointly appoint an independent reputable laboratory in Australia, where such services are reasonably available within Australia to test and report on whether or not the Products are defective, the findings of which shall be binding on the Parties. Expenses of such laboratory testing and any reasonable transport expenses held in relation to the allegedly defective Products shall be covered by the Party whose position is determined to have been in error.
3.9                Related Services are deemed to have been performed when the Products are Delivered (or deemed to be Delivered).
3.10           Unless otherwise directed by us in writing, any Receptacle used by us to facilitate Delivery is not sold to you and does not become your property and must either be returned to us at your cost or, if lost, damaged or not returned within seven days, replaced by you. If not, you indemnify us and must keep us indemnified for all of our resulting costs including charges or compensation we are required to pay to a third-party relating to the Receptacle. You must keep all Receptacles secure and in good condition in a manner consistent with applicable food and health requirements until the Receptacles are returned or collected by us at your cost.

4.1 Unless otherwise agreed by us in writing, risk in all Products and Services passes to you on Delivery (as defined).
4.2 Title in all Products remains with us until such time as full payment is made in clear funds for all amounts owing by you to us for all Products and Services Delivered by us from time to time or until you on-sell the Products in accordance with clause 4.6.
4.3 We may insure Products up to the time of Delivery or the passing of title to you, but you must not assume that we will take out or maintain any such insurance.
4.4 Until full payment for all Products and Services Delivered (together with any interest under these Terms) is received, you:(a) hold all Products as our bailee and a fiduciary relationship exists between us and you for this purpose; and(b) must keep the Products stored separately from all other goods and keep the Products insured for replacement cost and identified (in a way that is obvious to others) as our property, except where the Products that are incorporated, processed or co-mingled with other goods.
4.5 Until title in the Products passes to you, we may require you to deliver up the Products to us as we direct, and if you fail to immediately do so, we may enter any premises where the Products are stored and repossess them. You must at all times ensure that all third-party storage premises used to store your Products allow us to do this or to exercise rights under clause 6.7(c)(ii), even if the third-party is not your agent. You irrevocably authorize us to enter, to use your name and to act on your behalf, as we believe necessary to recover possession of the products in which we retain title under clause 4 and its subclauses.
4.6 Notwithstanding clause 4.2, you may on-sell the Products, including any goods into which the Products have been incorporated, processed or co-mingled, in an arm's length transaction, during the ordinary course of your business and at market value to a bona fide unrelated third-party. However, any proceeds or amount payable arising from such a sale are held by you as a fiduciary and on trust for us to the extent of the amount you owe us for all Products and Services Delivered by us from time to time, without further need for tracing or identifying the specific proceeds.

5.1 Without limiting clause 3.1, unless we have agreed in writing with you a fixed price, fee or basis for determining the price or fee before or when we decide to accept your order, our list prices and fees at the time of Delivery apply and all such prices and fees chargeable by us are subject to alteration without notice (unless we state otherwise in our acceptance), including where Delivery is delayed by you.
5.2 Any reference to an amount payable, consideration to be provided, or an indemnified amount connected with these Terms is exclusive of GST.
5.3 The amount to be paid or other consideration to be provided to us for any taxable supply we make that is connected with these Terms will be increased by an amount equal to any GST that we are or will become liable to pay in respect of that supply so that we retain after payment of GST the amount which we would have been entitled to receive but for our obligations to pay GST.
5.4 You are required to pay the amount invoiced by us including GST or Sales Tax (if applicable) without offset or deduction of any kind unless we have agreed to that offset or deduction in writing prior to payment.
5.5 If a Sales Tax other than GST applies in respect of any Delivery, you are liable for it and must pay it provided that if the law requires that we pay it then the same principles as are set out in clauses 5.2 to 5.4 inclusive will apply as if the Sales Tax were GST.

6.1 Without limiting clause 3.5, we will provide a tax invoice for the relevant price and fees applicable to each Delivery prior to, at or after the time of that Delivery.
6.2 You must pay all tax invoices in full and without deduction, set-off or counterclaim. An amount outstanding will not be satisfied until payment is received in full.
6.3 You must give us written notice within 14 days of receiving our tax invoice if you believe that the invoice is not correct. Your notice must include full details of the error(s) claimed by you.
6.4 If an invoice is disputed and that dispute cannot be immediately resolved, we can withhold or defer any future Delivery (in whole or in part) pending resolution of the dispute.
6.5 You must make payment of the undisputed amount due on any disputed invoice on the due date. Once the dispute is resolved, you must pay to us within three working days the resolved amount due.
6.6 You must pay all tax invoices on receipt (cash on Delivery), unless you and we have agreed to separate credit terms, in which case you are bound by, and must pay in accordance with those credit terms.
6.7 If you:
(a) default in any payment due to us (including under these Terms) or we conclude that you are unlikely to be able, including where you are unable, or state that you are unable, to pay your debts as and when they fall due; or a receiver, receiver and manager, controller, trustee or other insolvency administrator is appointed, or a scheme of arrangement is proposed or approved in respect of you or a mortgagee enters into possession of any of your assets or any analogous situation occurs; or(b) you are otherwise in breach of these Terms, the terms and conditions of any credit we extend to you (including where you exceed your credit limit with us) or any other agreement between you and us, then you must promptly pay to us the amount of all costs incurred by us in enforcing our rights under this agreement as a result of such default or breach and without prejudice to any other action or remedy which we have or might otherwise have had;
(c) we may, at our option do any or all of these:
(i) suspend, withhold or delay any further proposed deliveries (in whole or in part) or reject, cancel or defer performance of any order (whether or not accepted, and in whole or in part) without prior notice;
(ii) impose further conditions or requirements at our sole discretion, to reinstate credit terms including but not limited to requiring additional guarantees or security, lowering credit limits or reducing credit periods;
(ii) reclaim all or any Products in your possession or under your control and may enter premises where we believe that Products are stored or held to do so, and recover from you all costs of doing so;
(iii) by notice to you, with immediate effect, suspend or terminate any and all rights (whether express or implied) that you may have, or believe that you have, to place further orders under these Terms (without limiting our discretion as to whether we accept any order placed by you); and
(d) all monies owing and outstanding by you to us on any account whatsoever become immediately due and payable (without the requirement for notice from us) and you must pay for any subsequent Deliveries on Delivery.We will not be liable to you for any loss, harm, damage, cost or expense (including legal fees), or in the nature of special, indirect or consequential loss or damage (including consequential, special, punitive, indirect or economic loss or damage, loss of contract, loss of production or from production stoppage, or loss of profit, revenue or opportunity) you suffer or incur as a result of us exercising any of our rights under this clause.
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6.8 You must promptly respond to any enquiry or notice from us related to a matter in 6.7.
6.9 Without in any way limiting our right to require payment in full on the due date, we may charge interest on overdue accounts at the rate that is 2.0% per annum above the rate charged by the Commonwealth Bank of Australia from time to time on corporate overdrafts. Interest will accrue daily and be capitalised monthly from the due date until payment has been received by us in cleared funds. Payments by you will be applied first to interest accrued or capitalised and then to the overdue amount.
6.10 Without limiting clause 6.4, any collection charges, legal expenses (calculated on a full indemnity basis) and commissions or any other expenses incurred by us in attempting to recover from you any payment due to us (including any interest under clause 6.9) is payable by you to us on demand by us. Such amounts will incur interest at the same rate and on the same terms as are set out clause6.9 from the date of our demand until payment has been received by us in cleared funds.
6.11 If you owe us money in connection with these Terms and we owe you any money, we may set off the amount you owe us against the amount that we owe you and pay you the resulting net amount or seek payment from you of the net amount, as appropriate.

7.1 Notwithstanding anything to the contrary in these Terms, to the extent that you acquire goods or services from us as a consumer within the meaning of the Australian Consumer Law, you may have certain rights and remedies (including consumer guarantee rights) that cannot be excluded, restricted or modified by agreement.
7.2 Nothing in clause 7 operates to exclude, restrict or modify the application of any implied condition or warranty provision, the exercise of any right or remedy or the imposition of any liability under the Australian Consumer Law or any other statute where to do so would:(a) contravene that statute; or(b) cause any term of these Terms to be void, (Non-excludable Obligation).
7.3 Except in relation to Non-excludable Obligations, all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied by custom, under the general law or by statute are expressly excluded under these Terms.
7.4 Except in relation to Non-excludable Obligations, our liability to you arising directly or indirectly under or in connection with these Terms or the performance or non- performance under these Terms and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity is limited as follows:(a) we will have no liability whatsoever to you for any loss, harm, damage, cost or expense (including legal fees), or in the nature of special, indirect or consequential loss or damage (including consequential, special, punitive, indirect or economic loss or damage, loss of contract, loss of production or from production stoppage, or loss of profit, revenue or opportunity); and(b) the aggregate of our liability to you is otherwise limited to an amount not exceeding the consideration for the relevant Products or Services paid or payable by you in accordance with these Terms.
7.5 In relation to Non-excludable Obligations (other than a guarantee as to title, encumbrances or quiet possession conferred by the Australian Consumer Law), except for goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption (in respect of which our liability is not limited under these Terms), our liability to you for a failure to comply with any Non excludable Obligation is limited to:(a) in the case of Services, the cost of supplying the Services again or payment of the cost of having the Services supplied again; and(b) in the case of Products, the cost of replacing the Products, supplying equivalent Products or having the Products repaired or reworked, or payment of the cost of replacing the Products, supplying equivalent Products or having the Products repaired or reworked.
7.6 You acknowledge and agree that the burden of proof in respect of alleged non-delivery or defects in Products or Services (or their Delivery) rests with you.
7.7 We may use a proof of delivery signed by your employee, agent, Director or contractor as absolute proof that the product was delivered to you.
7.8 You must bear all costs of all recalls or withdrawals from the sale of Products(including if co-mingled into or with other goods) for any reason (including if we Deliver a defective Product or Service). You must co- operate with us in respect of the initiation and conduct of any recall of Products with the objective being to optimise your and our reputation and goodwill while ensuring public health and safety is maintained at all times and complying with all applicable laws.
7.9 You undertake to promptly inform us if you believe that any Product or Service is defective due to conduct for which we are responsible and in doing so must set out as much information as you have concerning the basis for your belief.
7.10 You must keep the relevant Product stored separately from all others and in the state or condition in which they were Delivered to you until we have an opportunity to inspect them.
7.11 You must provide all assistance that we reasonably request to determine whether your belief is correct and, if we accept that we are responsible for the defective Product or Service then you must destroy the affected Products or deliver them up to us on our request. Clause 7.4 then applies in respect of the Products and Services.
7.12 You agree that we are not liable for any loss, defect or damage to Products or Services:(a) unless you advise us of such within the timeframes provided in these Terms, including in your notice full details of the Products and/or Services, the alleged defect and all documents associated with your order and Delivery;(b) subject to clause 7.9(a), if you settle or compromise a claim by a third-party concerning such without our involvement and prior written consent;(c) subject to clause 7.9(a), whilst in transit with a third-party (whether or not a common carrier) even if we arranged for that third-party to transport the Products and Delivery has not occurred except to the extent you can prove that we failed to take reasonable care in packing the Products and that resulted in the loss, defect or damage;(d) subject to clause 7.12(a), if you do not reasonably assist us with our SPA enquiries concerning your claim.
7.13 SPA makes no therapeutic claims for the products. You are solely responsible for all label claims including but not limited ot country of origin, claims relating to products and any promotional or marketing material.
7.14 In no circumstances will we be liable to you or any other person for any loss or damage to person or property, or for including consequential, special, punitive, indirect or economic loss or damage, loss of contract, loss of production or from production stoppage, or loss of profit, revenue or opportunity arising out of us Delivering Products or Services or otherwise providing or supplying or failing to provide or supply any goods or services in connection with these Terms on any account whatsoever, and whether by way of damages or indemnity or in respect of breach of contract, tort (including negligence) or defect in manufacture/processing, design or information.

8.1 You indemnify us and must keep us indemnified against all claims, suits, actions, demands, loss (including consequential, special, punitive, indirect or economic loss or damage, loss of contract, loss of production or from production stoppage, or loss of profit, revenue or opportunity), liability, costs, expenses (including legal expenses on a full indemnity basis), judgments and awards (Losses) made against us or incurred by us to the extent that the Losses are caused (directly or indirectly) by you or any of your officers, employees, agents, representatives or contractors as a result of:
(a) a breach of these Terms or your order (including where such breach arises due to our compliance with all or any of your instructions in relation to the Products and/or Services or their manner of preparation or performance, as appropriate);
(b) a failure to:
(i) ensure that any safety markings on Products are adequately displayed;
(ii) comply with any law relating to the labelling or marking of foods;
(iii) take any other reasonable precautions either to bring to the attention of any potential users of the Products any dangers associated with the Products, or to detect any matters in relation to which we may become liable, including liability under the Competition and Consumer Act 2010 (Cth):
(c) any negligent act or omission or breach of duty;
(d) any other breach of laws, rules, standards or regulations applicable to the handling, storage, use or sale of the Products (including as incorporated into another good or service); or
(e) any claims from parties whose property has been incorporated, processed or co-mingled into or with the Products.

8.2 The indemnity in clause 8.1 is a continuing indemnity and is in addition to any statutory rights or remedies we may have or exercise against you.

9.1 These Terms constitute a security agreement and you grant to us a security interest in:
(a) all Products previously supplied by us to you (if any);
(b) all Products that may be supplied in the future by us to you;
(c) all goods into which the Products are incorporated, processed or co- mingled; and
(d) the proceeds of sale of any of the above,as security for payment of amounts owing by you to us for all Products and Services Delivered and all other amounts payable by you to us and your performance of your other obligations to us.

9.2 You agree:
(a) at our request, to promptly do all things (including signing all documents) and provide all assistance and information necessary to ensure that we have a perfected first ranking security interest in the collateral referred to in clause 9.1; and
(b) that we may register a financing statement or financing change statement at your cost and do anything else required to perfect our security interest in the collateral granted under these Terms.
9.3 You must not create, or permit to be created, any security interest in the collateral referred to in clause 9.1 (other than that created under these Terms).
9.4 Word and phrases used in this clause 9 that are defined in the Personal Property Securities Act 2009 (Cth) and any regulations have the same meaning.

10.1 Orders shall be forwarded to Us by mail or email to our address with attention to Customer Service.
10.2 We shall accept the Order using an Order Confirmation and following such Order Confirmation the Order shall be considered as binding.
10.3 You shall on a monthly basis notify Us in writing of estimates for Orders for each forthcoming twelve (12) months, and of which the first four (4)months shall be binding and the subsequent eight (8) months shall be rolling non-binding forecasts.
10.4 You shall provide a monthly status overview of its remaining stocks of Products.
10.5 Prior to the Effective date the Parties shall agree on the specific format to be used for exchange of forecast and stock information as set out in this Clause 10.4 and 10.5 and which communication may be made by e-mail.
10.6 For any volumes of Products ordered by You in excess of the latest forecast, We shall use reasonable efforts to supply such excess volume.
10.7 When providing its Orders and forecast, You agrees to take into account the Minimum Order Size and Lead Times required by Us from receiving and confirming an order and until delivery of a Product, as set out in the table above.
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11.1 This Agreement constitutes the entire Agreement between the Parties in connection with its subject matter and supersedes any previous agreement, warranty, statement, representation, understanding or undertaking (in each case whether written or oral) given or made before the date of this Agreement by or on behalf of the Parties and relating to its subject matter.
11.2 Nothing in these Terms gives you any right, title or interest in or to any of our assets or rights other than the Products or Services (but excluding any intellectual property rights in or relating to them and their packaging and storage, together with any associated goodwill), and then only in accordance with these Terms.
11.3 Nothing in this Agreement shall create, or be deemed to create, a partnership, joint venture or legal relationship of any kind between the Parties that would impose liability upon one Party for the acts or failure to act of the other Party, or authorize either Party to act as agent for the other. Save where expressly stated in this Agreement, neither Party shall have the authority to make representations, act in the name or on behalf of or otherwise bind the other.
11.4 Any confidential information or intellectual property provided by us in connection with the Products or Services, including these Terms, remains at all times our confidential and proprietary information and may be used by you solely to complete the relevant order and for no other purpose and must otherwise be kept in strict confidence by you. Any confidential information provided must immediately be returned to us on our request (which may be made at any time).
11.5 You are required to apply the same or greater level of security to our confidential or proprietary information as you apply to your own confidential or proprietary information.
11.6 Where confidential information is disclosed in furtherance of your business objectives or any reason, you must ensure that person or entity has entered into a confidentiality agreement with you.
11.7 If required by law to retain a copy of our confidential information you must notify us in writing at the time we request the return of confidential and proprietary information under clause 11.2. Where we are satisfied that you are required to retain a copy we will notify you in writing that we consent to the retention of one copy for the purpose of complying with the law only.
11.8 You must ensure that you and your officers, employees, representatives, agents, contractors and advisers do not disclose any information provided by us to you unless:
(a) the information is in the public domain (other than by reason of breach of any confidentiality obligation owed to us by anyone); or
(b) the disclosure (including its form and context) is first approved by us in writing.
11.9 You must not without our prior express written consent:
(a) repackage Products using our intellectual property (including trade marks) or packaging;
(b) modify or in any way alter, deface or cover up all or any part of our intellectual property (including trade marks) or any part of the appearance or get-up of packaging or storage in respect of the Products; or
(c) use any other intellectual property (including trade marks) in connection with, or in association with, our intellectual property (including trade marks).
11.10 These Terms and your order and any related communications, and any dispute which arises under, out of or in connection with these Terms or your order or such communications, their negotiation or their subject matter are governed by the law of Victoria, Australia and both you and us irrevocably and unconditionally submit to the non-exclusive jurisdiction of the Victorian courts. Except for urgent action to prevent imminent loss or damage such as an injunction, both you and we must seek to resolve any differences arising under these Terms by direct negotiation for 10 days or such longer timeframe as we agree with you before resorting to legal action.
11.11 Any personal information collected by you or us in connection with these Terms must only be used or disclosed for the purposes of ensuring performance of these Terms or your orders and any similar future agreements or arrangements. This may include disclosure within your or our organisations and to other parties involved in performing these Terms or similar future agreements or arrangements. Both we and you agree to comply with relevant privacy laws in respect of any personal information collected in connection with these Terms, any orders and any future like agreements or arrangements.
11.12 In these Terms:
(a) another grammatical form of a defined word or expression has a corresponding meaning;
(b) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re- enactments or replacements of any of them;
(c) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(d) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
(a) unless otherwise agreed in writing, all references to amounts of money are references to amounts in Australian currency;
(b) unless otherwise agreed in writing, reference to weights, quantities or other measures are, unless otherwise agreed in writing, references to that weight, quantity or other measure within a variance of plus or minus 5%; and
(c) headings are inserted for ease of reference only and do not affect the interpretation of these Terms.
11.13 If part or all of any provision of these Terms or your order or its application to any person or circumstance is illegal or unenforceable, the provision will be interpreted as may be necessary to ensure it is not illegal or unenforceable. If any provision or part of it cannot be interpreted in that way, the provision or part of it will be severed from these Terms or your order and the remaining provisions continue in full force and effect.
11.14 Any notice given by us under, or failure by us to insist on strict compliance with, any agreement between you and us (including an accepted order from you) or any delay by us in exercising our rights under any such agreement is not a variation or waiver of any provision of that agreement or of any right available to us.
11.15 A rule of construction does not apply to our disadvantage because we prepared these Terms.
11.16 You may not assign or novate any or all of your rights or obligations under these Terms to a third-party or purport to do so without our prior written consent (which may be given or withheld in our complete discretion).
11.17 All notices under these Terms must be in writing and delivered by you or us to the other at the address in Australia that the other specifies by notice from time to time.
11.18 Without limiting clause 1.3, any variation to, or amendment or replacement of, these Terms or any order as they apply to you must be authorised in writing by us through a duly authorised signatory on our behalf.
11.19 If you are a company or trust, we can terminate these Terms immediately by notice in writing to you if we reasonably form the view that you have undergone a change of control or other change of circumstance whereby we conclude that we would be dealing with a different party or are subject to different commercial considerations if we were to continue dealing with you. We can also terminate these Terms immediately by notice in writing to you if you sell or transfer all or a material part of your business, assets or undertaking (or agree to do so) without our prior written consent
11.20 No delay or failure to exercise any of our rights or remedies will be a waiver of any of our rights or remedies.
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‍12.1 Parties shall negotiate in good faith modifications to this Agreement if a Party has notified the other Party in writing of an event that;
(a) has occurred after the Effective Date,
(b) is outside the control of a Party,
(c) could not reasonably have been taken into account by a Party, and
(d) materially alters the equilibrium of the Agreement either;
(i) because the cost of a Party’s performance has increased,
(ii) because a Party’s ability to perform as agreed has become impaired or
(iii) because the value of the performance a Party receives has diminished.
(e) If an agreement concerning such modifications cannot be achieved within two (2) months after a Party have invoked this Clause, we may cease supply to you without notice.
12.2 Neither Party shall be liable to the other, or be deemed to be in breach of this Agreement, by reason of any delay in performing, partial performance or failure to perform, any of its obligations under this Agreement if the delay or failure was beyond that Party's reasonable control (including without limitation fire, flood, explosion, epidemic, riot, civil commotion, any strike, lockout, any general shortages in raw materials or other industrial action, act of God, war, warlike hostilities or threat of war, terrorist activities, accidental or malicious damage and any prohibition or restriction by any government or other legal authority which affects this Agreement and which is not in force on the date of this Agreement).
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12.3 A Party claiming to be unable to perform its obligations under this Agreement (either on time or at all) in any of the circumstances set out in Clause 12.1(e) shall notify the other Party of the nature and extent of the circumstances in question as soon as practicable.
12.4 This Clause 11.202 shall cease to apply when such circumstances have ceased to have effect on the performance of this Agreement and the Party affected shall give notice to the other Party that the circumstances have ceased.
12.5 If any circumstance relied on by either Party for the purposes of this Clause 11.20 continues for more than three (3) months, the other Party shall be entitled to terminate this Agreement by giving one month's notice.