Terms & Conditions

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This document sets out the terms and conditions on which Brita Brundin t/as Chef for You of c/- 32 Buchanan Circuit Baynton in the State of Western Australia agrees to provide the goods and/or services to the Customer.

1 Definitions & Interpretation

1.1 In these Terms & Conditions, unless the contrary intention appears:

ACL means the Australian Consumer Law at Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Additional Fee means:

(a) where the Customer books Services of less than 8 hours, any additional time beyond the hours included in the Online Booking will be charged at the Supplier's standard hourly rate of $165.00 plus GST per hour, up to a maximum Service duration of 8 hours;

(b) where the total Service duration exceeds 8 hours, any additional time beyond the first 8 hours will be charged at an overtime rate of $250.00 plus GST per hour; and

(c) a personal shopping fee of $300.00 plus GST for the first store and $100.00 plus GST for each additional store required to source ingredients where personal shopping is not included in the Online Booking but is required for the provision of the Services.

Agreement means the following and, if there is any inconsistency, in the following order of priority:

(d) these Terms.

Customer means the entity on the Online Booking which engages the Supplier to provide Services.

Customer’s Address means the Customer’s name, Location and email address provided on the Online Booking.

Confidential Information means all Information in whatever form, be it oral, in writing or electronic, concerning the Services, the business of the Supplier, any related entity or client and the processes, equipment and techniques used in such business or created under this Agreement, that may damage the business of the Supplier or a related entity if disclosed to a third party but does not include information that is in the public domain or was known to the third party before the commencement of this Agreement.

Consultation means the meeting between the Customer and Supplier in which the Supplier sets out the plan for the provision of Services.

Deposit means the deposit as stated in the Online Booking or, if not stated, as defined by clause 2.4(a).

Disbursements means all groceries and other items purchased by the Supplier for the provision of the Services.

Discloser means the Party disclosing Confidential Information to the Recipient. Due Date means the date on which any Invoice is due to be paid.

Fee means the fee stated on the Online Booking.

GST means the goods and services tax or similar value added tax as defined in A New Tax System (Goods & Services Tax) Act 1999 (Cth).

Information includes:

(a) trade secrets;

(b) any document, book, account, process, computer program, patent, specification, drawing, design or know-how;

(d) business policies, procedures, marketing strategies, rules, systems and methods developed including risk management, compliance and governance;

(e) commercially sensitive financial information about a Party or a Client including the cost of its services, its pricing, income, its profitability, its balance sheet or its current, past or proposed business dealings; and

(f) other commercially sensitive information about a Party or a Client which if disclosed would have the effect of diminishing or adversely affecting that Party’s financial performance.

Insolvency Event means, in relation to a Party:

(a) an application or an order is made for the winding up of the party, which is not dismissed, struck out or withdrawn within 28 days of that Party filing a notice of intention to defend (or similar); or

(b) the declaration of bankruptcy of a party; or

(d) a resolution is passed for the winding up of the Party, or for the appointment of an administrator, receiver, liquidator, or receiver, or receiver and manager;

(e) a receiver or manager (or both) is appointed to, or a mortgagee takes possession of, all or any part of the business or the assets of the Party;

(f) the Party makes any composition or arrangement or assignment with or for the benefit of one or more of its creditors;

(g) the Party is or states that it is insolvent or is deemed or presumed to be under an applicable law; or

(h) the Party proposes a winding-up or dissolution or reorganisation, moratorium, Agreement of company arrangement or other administration involving one or more of its creditors; or

(i) the Party is taken to have failed to comply with a statutory demand as a result of section 459F(1) of the Corporations Act; or

(j) an application is made or notice is issued under sections 601AA or 601AB of the Corporations Act; or

(k) a writ of execution is levied against the party or its property and is not removed within twenty eight (28) days of notification of the levy; or

(l) anything analogous or of similar effect to any of the above events occurs under the law of any applicable jurisdiction.

Intellectual Property means all intellectual property rights of any nature, including all copyright, designs, trademarks, patents, plant breeders’ rights, rights in circuit layouts, domain names, and other sui generis rights which are recognised in law.

Interest means 18% per annum, compounding daily.

Invoice means any tax invoice issued by the Supplier to the Customer.

Location means the premises identified by the Customer on the Online Booking. Online Booking means the booking form available from the Supplier’s Website. Purpose means the provision of meal preparation services for the Customer. Recipient means the Party receiving Confidential Information from the Discloser.

Restraint Period means for the Term of this Agreement and the period after Termination of this Agreement of: (a) 12 months;

(b) 6 months; and

Party or Parties means the Supplier and/or the Customer, as the context requires. Representatives means legal, financial or other professional advisors.

Services means the provision of personal chef and meal preparation services for the period stated in the Online Booking and, if required, personal shopping services as required to provide personal chef services.

Supplier means Brita Brundin t/as Chef for You (ABN 29 927 398 088). Supplier’s Address means Karratha/Perth in the State of Western Australia. Termination means termination of this Agreement in accordance with clause 9.

Taxable Supply has the meaning given in the GST Law.

Tax Invoice has the meaning given in the GST Law.

Terms means this Terms & Conditions document.

1.2 In these Terms, unless the contrary intention appears:

(a) any obligation that binds two or more persons binds them jointly and severally;

(b) any right conferred for the benefit or benefits two or more persons benefits them jointly and severally;

(d) a word importing any gender includes any other gender;

(e) the word “including” does not import any limitation;

(f) where, by operation of this Agreement, the day on which any act, matter or thing to be done is not a Business Day, then that act, matter or thing must be done on the next succeeding Business Day;

(g) a reference to a person includes an individual, the estate of that individual, a corporation or an incorporated or unincorporated association, a joint venture or parties thereto, or partnership;

(h) a reference to a party includes that party’s executors, administrators, successors and permitted assigns;

(i) a reference to this Agreement or a provision of this Agreement is to this agreement as varied, novated or replaced from time to time;

(j) a reference to any legislation includes any subsidiary legislation made under it, and any legislation or provision which amends or replaces the legislation;

(k) a reference to an amount payable is a reference to that amount in Australian Dollars; (l) headings are for convenience only and do not affect the interpretation;

(m) these Terms are not to be construed adversely to a party just because that party prepared these Terms, or caused these Terms to be prepared.

2 Services, Fees & Payments

2.1 The Customer acknowledges that the Supplier will only perform the Services in accordance with these Terms unless varied by written agreement.

2.2 The Supplier shall, on the Booking Date, provide the Services at the Location and the Customer shall pay the Fee.

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2. Booking & Deposit

2.3 A booking is not confirmed and no date will be held until the Deposit has been paid in full. Payment of the Deposit constitutes acceptance of these Terms & Conditions and forms a binding agreement between the Customer and the Supplier

2.4 In consideration of the Supplier providing the Service, the Customer agrees to pay the Fee as follows:

(a) a non-refundable Deposit as specified in the Online Booking, Quote or Invoice. For Personal Chef Meal Preparation Services, unless otherwise agreed in writing, the Deposit is $1,100 (inclusive of GST).
(b) the remaining balance of the Fee, together with any Additional Fees and Disbursements, is due and payable at the completion of the Service on the cook day.

2.5 The Deposit will be applied towards planning, consultation, administration, shopping, groceries and any preparatory work undertaken by the Supplier and will be deducted from the final invoice unless otherwise agreed in writing.

2.6 Additional Fees & Charges

Any Additional Fees, including additional hours, overtime, personal shopping, travel, planning, packaging or any other Services requested by the Customer that are not included in the Online Booking, will be charged in accordance with these Terms or the Online Booking and are payable upon completion of the Services, unless otherwise agreed in writing.

2.7 Where the Services exceed the hours included in the Online Booking, the Customer agrees to pay the applicable Additional Fee in accordance with these Terms.

(a) additional hours up to a maximum Service duration of 8 hours will be charged at $165.00 plus GST per hour; and

(b) any Services provided beyond 8 hours will be charged at $250.00 plus GST per hour.

Additional time is charged in 30-minute increments

2.8 Travel time and accommodation (where applicable) will be charged in accordance with the Online Booking or as agreed in writing prior to the Services.

Payments & Enforcement

2.9 Payment must be made via bank transfer or other method approved by the Supplier.

2.10 Payment must be received before the Supplier departs the Location unless otherwise agreed in writing.

2.11 The Supplier reserves the right to cease or withhold Services until payment is received in full.

2.12 The Supplier may charge Interest on amounts not paid by the Due Date.

2.13 The Customer is responsible for all grocery costs (Disbursements), which will be added to the final invoice or paid separately as agreed.

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3. Service Expectations

The number of meals produced during the Services will vary depending on menu selection, recipe complexity, portion sizes, dietary requirements, kitchen facilities, available equipment, Customer participation and the time booked. No minimum or guaranteed number of meals is provided.

Customer Obligations

3.1 The Customer shall ensure that, where relevant for the Service:

(a) the Supplier is given access to the Location at or before the agreed commencement of the Service;

(b) the Supplier is provided access to all kitchen items, including an oven, cooktop and power points at a minimum any other items notified in writing;

(c) the kitchen and any other area in which the Service is to be provided at the Location is clean and clutter free, specifically including a clean and empty sink, dishwasher and benches;

(d) the Customer has informed the Supplier as to any limitations relevant to the Location and shall provide details of the Service Location prior to the Service being provided;

(e) the Supplier is informed of any dietary preferences, allergies or other special requirements at least 5 Business Days before the Service or during the Consultation;

(f) all necessary ingredients stated on the shopping list provided by the Supplier to the Customer are available and the Customer is satisfied as to the quality and freshness of those ingredients provided; and

(g) all food supplied or received by the Customer have been and will continue to be before consumption, stored in compliance with recommended food safety standards; and

(h) where the Customer is relying on delivery of groceries or the Services, the Customer will be at the Location in order to receive and store in a timely fashion or made other arrangements to ensure compliance with food safety standards.

3.2 If the Customer fails to meet the requirements outlined in clause 3.1 and this results in delays, reduced output or additional time required, the Supplier reserves the right to charge for the full booked time and any additional hours required. This includes delays caused by late grocery deliveries, unavailable ingredients, inadequate kitchen facilities, interruptions by the Customer or any other circumstance outside the Supplier's reasonable control.

3.3 Where the Customer elects to purchase groceries themselves, the Supplier is not responsible for delays, reduced meal output or changes to the menu resulting from missing, incorrect, insufficient or poor-quality ingredients.

3.4 The Supplier reserves the right to substitute ingredients where products are unavailable, discontinued, out of stock or of unsatisfactory quality, provided the substitute is of a similar quality and suitable for the intended recipe, unless otherwise instructed by the Customer.

3.5 All groceries and ingredients purchased for the Services become the property of the Customer upon purchase. Any unused groceries or ingredients remaining at the completion of the Services will be left at the Location unless otherwise agreed in writing.

3.6 The Supplier is not responsible for the storage, handling, or consumption of food once the Service has been completed.

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4 Warranties & Consumer Guarantees

4.1 The Customer acknowledges and warrants that it has not relied on any representation by the Supplier, its employees, its agents or any other person in entering into and accepting the Agreement. To the extent permitted by law, the Supplier expressly disclaims any warranty express or implied in relation to the Services that is not contained within this Agreement.

4.2 Our Services may come with guarantees that cannot be excluded under the Australian Consumer Law. Under the ACL, you are entitled to a refund for a major failure and compensation for any other reasonably foreseeable loss or damage. If there is a minor failure in the provision of the Service, you must immediately notify the Supplier and the Supplier will repair or correct the minor failure without any Additional Fee. The Supplier also has the option to offer you a refund, repair or resupply.

4.3 Each Party warrants that, at the date of this Agreement:

(a) no Insolvency Event has occurred with respect to that Party;

(b) where the Party is a body corporate:

(i) it is duly incorporated and validly existing under the laws of the place of its incorporation;

(ii) it has the power to enter into and perform its obligations under this Agreement;

(iii) the execution and performance by it of this Agreement does not violate in any respect a provision of:

(A) a law, treaty or a judgement, ruling, order or decree of a governmental authority or agency binding it;

(B) its constitution, memorandum, articles of association or any other constituent documents; or

(iv) it is not subject to an Insolvency Event; and (c) where the Party is a natural person:

(i) the Party has the legal capacity to enter into this Agreement; and

(ii) the execution and performance by the Party of this Agreement does not violate in any respect a provision of:

(A) a law, treaty or a judgement, ruling, order or decree of a governmental authority or agency binding it; or

(B) any other document or agreement which is binding on the Party; and (iii) the Party is not subject to an Insolvency Event.

(d) there are no unsatisfied orders, judgments or awards against the Party and the Party is not a plaintiff or defendant or otherwise a party to any litigation, arbitration or mediation proceedings and there is no circumstance which is likely to give rise to any such proceedings except as otherwise notified in writing; and

(e) the Party is not the subject of any investigation, enquiry or enforcement proceedings by any Regulatory Authority and there is no circumstance which is likely to give rise to any such investigation, enquiry or enforcement proceedings except as otherwise notified in writing.

4.4 Each warranty given pursuant to this clause 4 is to be treated as a separate warranty and is not limited by reference to any other warranty or any other provision of this Agreement.

4.5 Except as expressly set out in this Agreement, no warranty is excluded or limited by any inquiry or investigation made by the Party who has the benefit of the other Party’s warranty or any actual or constructive notice that any Warranty is or may be incorrect.

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5 Liability & Indemnity

5.1 To the extent the Supplier is held at law to be liable to the Customer, and subject to the Australian Consumer Law and clause 4.2 if applicable, the maximum extent of the Supplier’s liability to the Customer will be, in the Supplier’s discretion, a resupply of the products or services (as applicable) or a refund of the amount of monies paid by the Customer in relation to the defect for which the Supplier is held to be liable.

5.2 Notwithstanding any other provision of the Agreement, the Supplier is in no circumstances liable in contract, equity or tort (including without limitation, for negligence or breach of statutory duty or otherwise) to compensate the Customer for:

(a) any increased costs or expenses;

(b) any loss of profit, revenue, business, contracts or anticipated savings;

(d) any special, indirect or consequential loss or damage of any nature howsoever caused.

5.3 The Supplier shall not be responsible or liable for damage, personal injury or loss of any kind whatsoever, to any property or person howsoever caused arising from the Services, the delivery of the Services or at all and the Customer otherwise agrees to indemnify the Supplier in respect of any loss, damage, liabilities or claims arising from the Services.

5.4 The Customer indemnifies the Supplier against, and must pay on demand the amount of, any loss, cost, charge, damage, expense or other liability suffered or incurred by the Supplier or any Related Entity (including all legal costs on a solicitor-client basis and all other professional expenses) arising out of or in connection with the providing the Services or any of their breaches of this Agreement, including a breach of any obligation to procure that their Representatives do or omit to do anything.

5.5 The amount of any claims, damages, interest, costs and expenses which may be paid, suffered or incurred by the Supplier in respect of such loss, damage or injury must be made good at the Customer 's expense and may be deducted from any moneys due or becoming due to the Customer.

5.6 This clause 5 survives the termination of this agreement.

6 Intellectual Property

6.1 Subject to subclauses 6.2, any Intellectual Property created by the Customer, either alone or with others, in the course of the Customer engaging the Supplier’s Services pursuant to this Agreement, vests in the Supplier on creation and the Customer assigns to the Supplier all existing and future rights the Customer may have in all such Intellectual Property.

6.2 Ownership of rights in any Intellectual Property created otherwise than in the course of this Agreement remains with the creator of such Intellectual Property.

6.3 The Customer shall promptly and fully disclose to the Supplier all discoveries, improvements and inventions made or conceived by the Customer or their Representatives, whether solely or jointly

with others, in the course of using the Services which are similar to the actual or anticipated business, work or investigations of the Supplier. Such discoveries, improvements or inventions, whether or not constituting Intellectual Property rights capable of protection, shall remain the sole and exclusive property of the Supplier.

6.4 Moral Rights may subsist in the Works which have been created by the Customer in the course of the this Agreement and the Customer acknowledges that the Supplier may, from time to time, do any act, or make any omission, where such act(s) or omission(s) would otherwise constitute an infringement of the the Customer’s Moral Rights in accordance with Part IX of the Copyright Act 1968 (Cth).

6.5 The Customer agrees, where it is necessary to do so, to provide written consent to the Supplier to do such act(s), or make such omission(s), where such act(s) or omission(s) constitutes an infringement of the Customer’s Moral Rights or that of the Customer’s employees, officers or agents.

6.6 The obligations of this clause 6 survive termination of this Agreement. 7 Confidentiality

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7. Confidentiality

7.1 The Parties acknowledge that during the course of performing each Party’s rights and obligations under this Agreement, each Party may become aware of, or be made aware of Confidential Information or information which the Discloser considers to be Confidential Information.

7.2 Except to the extent permitted by this Agreement, each Recipient agrees that it:

(a) will hold all Confidential Information in strict confidence and not disclose it or otherwise make it available to any person;

(b) will not use any Confidential Information for any purpose other than the Purpose;

(c) will not use any Confidential Information for its own commercial advantage or to the potential disadvantage of the Discloser or any Related Entity;

(d) will not copy, extract, record or reproduce any Confidential Information except to the extent necessary to carry out the Purpose; and

(e) will maintain the secrecy and security of all Confidential Information and will store all Confidential Information in a way which, at all times, protects it from unauthorised access, use, copying, reproduction or disclosure but can be retrieved.

7.3 A Recipient may not disclose any Confidential Information to any third party, nor cause or allow such Confidential Information to any third party, and further warrants that it will not disclose, nor cause or allow to be disclosed, any Confidential Information to any third party, except:

(a) with the express written consent of the Party to whom the Confidential Information belongs; or

(b) to the extent that it is required by law to do so.

7.4 Notwithstanding clause 7.3 above, both Parties may disclose Confidential Information to its Representatives, provided only that such disclosure is:

(a) reasonably necessary;

(b) made subject to confidentiality agreements imposing similar obligations on the recipient of Confidential Information to this clause 7; and

7.5 If any Party is uncertain as to whether any information is Confidential Information, that Party will treat the information as if it were Confidential Information and not being in the public domain unless and until the other Party agrees in writing that the information is in the public domain.

7.6 Each Recipient acknowledges that its obligations under this clause 7 are in addition to, and nothing in this agreement limits, any common law or equitable obligations of confidence owed to a Party or its Related Entities by the other Party or its Representatives.

7.7 The Parties agree that, within 5 Business Days of Termination of this Agreement, the Recipient will:

(a) return to the Discloser or, as may be requested by the Discloser, destroy or procure the destruction of all documents and materials containing Confidential Information in the possession, power or control of the Recipient or its Representatives, whether or not it was created by the Recipient or its Representatives; and

(b) delete, or procure the deletion of, any Confidential Information that has been entered into a computer, database or other electronic means of data or any other information storage medium by or on behalf of the Recipient or its Representatives.

7.8 Within 3 Business Days of complying with clause 7.7, the Recipient will give written confirmation to the Discloser that to the best of it’s knowledge and belief all of the Confidential Information had been returned, destroyed or deleted and that if any further Confidential Information is later found, it will be returned, destroyed or deleted as appropriate.

7.9 The Parties agree that the Recipient will not, and will procure that each of its Representatives does not, use or make any further disclosure of any Confidential Information except as permitted by this clause 7.

7.10 When a Representative of a Recipient ceases to be a Representative, the Recipient must immediately take possession of all Confidential Information in the possession, power or control of that person and must procure that that person does not use or make any further disclosure of any Confidential Information.

7.11 Clause 7.7 does not apply to any Confidential Information to the extent that:

(a) the Confidential Information forms part of the minutes of the board of directors, a committee of the board of directors of the Recipient or a Related Entity of the Recipient containing a level of detail consistent with the normal practices of the Recipient or that Related Entity;

(b) the Recipient or any Representative of the Recipient holding Confidential Information is required by law or the rules of any Regulatory Authority or any mandatory rule of professional standards applying to the Recipient or the relevant Representative to retain a copy of the Confidential Information;

(c) the Confidential Information forms part of any legal advice, legal opinion or legal due diligence report prepared for the Recipient provided that copies of the Confidential Information retained by the Recipient's lawyers on its behalf must only be used in

connection with the bringing of an action or claim or the defence of an action or claim under or in connection with this Agreement; and

(d) if a Recipient or its Representatives retain any Confidential Information in accordance with this clause 7.11, the Recipient must provide the Discloser with a list of all Confidential Information retained and details of how that information will be stored.

7.12 If either Party believes on reasonable grounds that Confidential Information has been disclosed, whether or not the other Party is responsible for such disclosure, that Party believing on reasonable grounds that Confidential Information has been disclosed must serve notice (Disclosure Notice) to the other Party:

(a) notifying the other Party of any suspected unauthorised disclosure of the Confidential Information;

(b) the scope of the Confidential Information in that disclosure; and

7.13 If a Disclosure Notice is issued, the Recipient do all things necessary to assist Discloser to:

(a) limit any further disclosure of the Confidential Information;

(b) recover any copies of inadvertent or unauthorised disclosure of Confidential Information;

(c) investigate the cause of the inadvertent disclosure of Confidential Information and take all steps necessary to reduce the risk of further inadvertent disclosure to the satisfaction of the Discloser; and

(d) institute legal proceedings, or join the Discloser in instituting legal proceedings, against the source of the unauthorised disclosure.

7.14 Unless otherwise agreed, each Party shall bear its own costs in respect of any action taken under clause 7.13 above.

7.15 Each Party acknowledges that damages alone would not be adequate to compensate the Discloser or its Related Entity for any breach of this clause 7 and agrees, for itself and on behalf of each of its Representatives, that the Discloser may seek an injunction on its own behalf, or as trustee for any Related Entity, for any breach or threatened breach of this Agreement.

7.16 These obligations of this clause 7 survive the termination of this Agreement. 8 Third Party Dealings & Restraint

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8. Third Party Dealings & Restraint

8.1 For the term of this Agreement and the Restraint Period, each Customer must not, and must procure that its Representatives and Related Entities do not, directly or indirectly induce or encourage any employee of the Supplier or its Related Entity to leave the employment of the Supplier or its Related Entity or interfere with the relationship between the Supplier or Related Entity with any of their respective customers, employees or suppliers.

8.2 This clause 8 does not prevent a Customer or its Related Entity from:

(a) advertising employment vacancies, except where targeting employees of the Supplier or its Related Entity, or interviewing and negotiating with any person responding to that advertisement;

(b) employing any person who, on their own initiative, seeks employment with the Customer or its Related Entity; or

8.3 The Customer acknowledges that any breach of this clause would cause irreparable harm and significant damage to the Supplier and the Supplier has the right to seek injunctive relief in relation to such breach.

8.4 The Customer agrees that the covenants in this clause are fair and reasonable and that the Supplier relies on this acknowledgement in entering into this Agreement.

8.5 This clause 8 survives termination of this Agreement.

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9 Default & Termination

9.1 It is an Event of Default if:

(a) the Customer breaches or fails to observe or perform any covenant contained in or implied in this Agreement (including failing to pay any invoice on or before the date for payment) and that breach, non-observance or non-performance shall continue for 5 Business Days;

(b) the Customer breaches any warranty or representation given under this Agreement;

(c) all or part of this Agreement is void, avoided, illegal, invalid, unenforceable or limited in its effect or it becomes impossible for the Customer to perform a material obligation under this Agreement;

(d) the Customer commits an Insolvency Event;

(e) there is a material adverse change in the Customer’s business;

(f) effective control of the Customer is altered to any material extent from that as at the date of this Agreement, without the Supplier’s consent, which includes changes to the control of composition of the board, control of more than half the voting power of the Customer or half of the share capital of the Customer;

(g) if the authority or power of the Customer to perform any of its obligations under this Agreement is revoked or so amended such that the Customer is unable to fully and duly perform and observe those obligations; and

(h) the continued performance of the obligations of the Customer under this Agreement contravenes, or might in the Supplier's opinion contravene, any applicable law, rule, order or regulation.

9.2 If an Event of Default occurs, the Supplier may elect to terminate this Agreement by giving notice that such Event of Default shall be remedied within 5 Business Days (Default Notice) and if such Event of Default is not remedied within the time in the Default Notice, the Supplier may give notice to the Customer terminating this Agreement (Termination Notice) and the Customer shall pay to the Supplier all Fees incurred to the date of termination and any Fees or other costs or expenses incurred by the Supplier or

otherwise payable under this Agreement as a result of such Event of Default or termination.

9.3 In the event that the Customer cancels or attempts to reschedule the Agreement within 28 days of the Booking Date:

(a) the Deposit is non-refundable;

(b) for Personal Chef Meal Preparation Services, the Deposit is fixed at $1,100 (inclusive of GST) and represents the minimum costs incurred by the Supplier in reserving the Booking Date, planning, administration, shopping and preparation;

(c) for Private Dining, Catering or Event Services, the Deposit and cancellation charges will be as specified in the Online Booking, Quote or Invoice; and

(d) the Customer remains liable for any groceries, travel, accommodation or other costs already incurred by the Supplier that are not covered by the Deposit.

9.4 The liability of The Customer shall not be affected by:

(a) any time or indulgences given or extended to the Customer or any other persons;

(b) any subsequent transaction or arrangement between the Supplier and any other person;

(d) any act, omission, breach or default on the part of the Supplier which may have, but for this provision, affected the liability of any person to the Supplier;

(e) the death, incapacity or bankruptcy of a director of the Customer or any other person;

(f) the winding up or liquidation of any company; or

(g) any extension, variation or amendment of any terms of this Agreement.

9.5 During any time after an Event of Default or after the Customer fails to comply with any of its obligations under this Agreement, the Customer irrevocably appoints the Supplier, each director of the Supplier and all the Supplier’s assigns and successors severally as attorney of the Customer to do all acts and things necessary as may, in the Supplier’s opinion, be reasonably necessary or expedient to give effect to any right or power conferred on the Supplier by this Agreement.

9.6 The Supplier reserves the right to report any Event of Default to credit reporting agencies. 10 Notices

10.1 Any notice or demand under this Agreement is not effective unless such notice is: (a) in writing and in English; and

(b) must be typed or written in legible handwriting; and

(d) served on the other Party by:

(i) email to the address nominated by that other Party; or

(ii) registered post to the address nominated by that other Party; or

(iii) hand delivered to that other Party, or if that other Party is a body corporate, an officer of that other Party having the legal authority to bind that Party.

10.2 The Party receiving the notice shall, upon receipt of such notice, send a written notice to the sender of the notice using the same method of transmission as the notice that the sender used to send such notice, advising the sender that the notice has been received.

10.3 Notwithstanding clause 10.2, any notice or demand under this Agreement is deemed to have been received by the other Party where:

(a) sent to the Supplier at the Supplier’s Address and to the Customer at the Customer’s Address;

(b) if that notice is served by email, within one hour of the time stamp notifying the time on which the email is sent, unless the time that the recipient is deemed to have received this email in accordance with this clause 10.3 is not on a Business Day, or after 4:00pm on a Business Day, in which event that notice is deemed to have been received at 9:00am on the next Business Day; or

(d) if by hand delivery, immediately upon delivery.

11 Dispute Resolution

11.1 If a dispute or difference arises in respect of any fact, matter or thing arising out of, or in any way in connection with, this Agreement, or the conduct of a Party in relation to the subject matter of this Agreement at any time and is not required to be determined in accordance with a procedure in another clause in this Agreement, the dispute or difference must be determined in accordance with the procedure in this clause 11.

11.2 If a dispute defined in clause 11.1 arises, a Party may give notice to each other Party specifying that there is a dispute, the particulars of the dispute, their position and how they propose the dispute be settled.

11.3 If a Dispute Notice is given, the Parties will either individually or procure their representative to meet and undertake negotiations in good faith with a view to resolving the dispute or difference specified in that Dispute Notice.

11.4 If the dispute is not resolved within 10 Business Days of service of the Dispute Notice, the dispute or difference must be referred to mediation. The Parties shall agree on a mediator but if they cannot agree on a mediator within 14 Business Days of service of the Dispute Notice, then any of the Parties may apply to the then President of the Law Society of Western Australia to appoint an appropriately experienced mediator, with such decision being binding on all Parties.

11.5 The Parties shall, within 21 Business Days of the Dispute Notice, provide unavailable dates and the reason for the unavailability to the Mediator. The Parties shall comply with all directions of the Mediator in relation to the conduct of the mediation, including the time, date and place of the mediation, which is to occur within 40 Business Days of service of the Dispute Notice.

11.6 If the dispute specified in a Dispute Notice is not resolved within 40 Business Days of service of the Dispute Notice, any Party may terminate the mediation process.

11.7 This clause 11 survives the termination of this Agreement.

12 General

12.1 Time is of the essence in respect of all of the Customer’s obligations to the Supplier.

12.2 The Parties agree to do all things necessary to give effect to the entirety of this Agreement, including (without limitation to) making any payment or executing into any other agreement to give effect to this Agreement.

12.3 The Customer agrees that the Customer may not assign their rights and obligations of this Agreement without the express written consent of the Supplier. The Supplier may assign its rights and obligation by giving written notice to the Customer.

12.4 The Parties agree that the Agreement and these Terms shall be construed in accordance with the law in force in the State of Western Australia and irrevocably submit to the non-exclusive jurisdiction of the courts of Western Australia and any courts of Australia having competent jurisdiction to hear appeals from such courts in respect of any proceedings in connection with the Agreement or these Terms.

12.5 Any clause which expressly or by its nature survives the termination of this Agreement shall remain in full force and effect, notwithstanding termination.

12.6 Any variation to the Agreement or the Terms is not valid unless it is in writing and signed or initialled by both Parties, and such variation shall take effect from the next Business Day, or any other date as may be agreed by the Parties in writing and specified in the variation.

12.7 A failure or delay to exercise any right, power or remedy by either Party under this Agreement shall not be construed as a waiver, unless such waiver is expressed in writing.

12.8 A waiver shall be construed as a once only waiver and shall not preclude the future exercise of any right, power, or remedy under this Agreement unless such waiver is expressly stated to preclude such future right, power, or remedy under this Agreement.

12.9 Where any provision of this Agreement, or any part thereof, infringes upon, or is otherwise inconsistent with any law of Western Australia or the Commonwealth of Australia:

(a) such term or condition shall be construed in a manner that removes the inconsistency, but only to the extent of that inconsistency, and such construction shall not affect the validity or enforceability of the remainder of that provision; or

(b) where such term or condition cannot be so construed, it shall be deemed void and severable from the Agreement, without thereby affecting the validity or enforceability of the remainder of the provisions of this Agreement.

12.10 Any clause which expressly or by its nature survives the termination of this Agreement shall remain in full force and effect, notwithstanding termination.

12.11 Neither Party shall be liable to the other Party for the consequences of any delays, omissions or failures to perform (except a failure to pay money), which is caused by an event beyond the first Party’s reasonable control, including acts of God, fire, flood, accident, terrorism, war, strike and riots. If such events continue for a period of more than thirty days, either Party may, by giving written notice to the other Party, terminate this Agreement.

12.12 This Agreement may be executed in any number of counterparts, all of which, when taken together, shall constitute one Agreement.

12.13 This Agreement constitutes the entire agreement between the Parties, and supersedes all negotiations, representations or prior agreements, whether written or oral, in respect of the subject matter of this Agreement. The Parties acknowledge that The Supplier will only provide goods and/or services on the terms of this Agreement, which prevail at all times, regardless of timing of exchange of documents.

12.14 The Parties agree that before entering into an Agreement, they have sought or had the opportunity and elected not to obtain independent legal advice on the terms of the Agreement.