This Supplier Services Agreement is made as of the date of submitting the Supplier Agreement between FRESHO PTY LTD ACN 605 060 277 (Fresho) and the party named in the Supplier Agreement (Supplier).
The Supplier wishes to access Fresho’s technology platform to facilitate ordering of products by its Customers.
The parties therefore agree as follows:
1 DEFINITIONS AND INTERPRETATION
Words and expressions used in this agreement have the meanings given to them in Part A of Schedule 2, and rules for the interpretation of this agreement are set out in Part B of Schedule 2.
2 FRESHO’s SERVICES
2.1 Ordering platforms
Fresho will provide the Supplier and its Customers with access to an Ordering Platform via access to and use of the Fresho App.
(a) use reasonable endeavours to assist the Supplier to introduce its Customers to use of the Ordering Platform;
(b) enable Customers using the Fresho App to see the Supplier’s logo while in the Supplier’s digital shopfront;
(c) permit the Supplier to have electronic access to the Ordering Platform so that the Supplier can change or modify prices, availability of products, specials and discounts in relation to its products and changes to any other terms displayed on the Fresho App;
(d) provide sales and technology support; and
(e) send notices in relation to this agreement to the Supplier as per the details in Item 5 of Schedule 1.
3 SUPPLIER’s OBLIGATIONS
3.1 General obligations
In consideration of Fresho agreeing to provide the Services, the Supplier undertakes:
(a) to meet all of its obligations in this agreement; and
(b) during the term of this agreement and for a period of six months after this agreement ends, not to develop a technology platform similar to or the same as the Ordering Platform or the Fresho App.
3.2 Specific obligations
Without limiting clause 3.1, the Supplier undertakes to:
(a) provide Fresho with a full list of the Suppliers’ products, product and customer codes and customer data;
(b) comply with all laws, regulations and permits for the supply of its products and the quality of all products supplied to Customers;
(c) pay Fresho’s Fees in accordance with clause 4 of this agreement;
(d) ensure Fresho is informed of all products of the Supplier that incur GST; and
(e) send notices in relation to this agreement to Fresho as per the details in Item 4 of Schedule 1.
4 PAYMENTS AND REBATES
4.1 Fresho Fees
Fresho’s Fees for the Services are determined in accordance with Item 3 of Schedule 1 and are due and payable within 1 days after the end of each calendar month.
All Fresho’s Fees exclude GST. Fresho will provide the Supplier with a tax invoice.
5 TERM AND TERMINATION
This agreement commences on the date set out in Item 2 of Schedule 1 and continues for 12 months from that date. The agreement will then continue for further periods of 12 months from each anniversary of the commencement date unless the Supplier or Fresho notifies the other party of termination. Any such notice must specify a termination date which must be at least 60 days after the date the notice is given.
5.2 Resolving issues
Both parties must act in good faith prior to termination to resolve satisfactorily (to each party) any issues arising from this agreement in connection with its termination.
5.3 Obligations not released
The Supplier and Fresho are not released from any obligations that may exist on termination or arise after the end of this agreement.
5.4 No further trading
When this agreement ends, all trading by or on behalf of the Supplier through the Ordering Platform will cease.
If the Supplier fails to pay Fresho in accordance with clause 4.1 and does not remedy the breach within 3 Business Days of written notice from Fresho, then Fresho may (without prejudice to or limiting any other right or remedy under this agreement or at law) at its sole discretion suspend the Supplier’s access to and use of the Ordering Platform until the breach is fully remedied.
6 LIMITATION OF LIABILITY
6.1 Fresho not liable for loss, etc
Fresho will not be liable for any action, cost, loss or expense of any kind (including economic and consequential loss and loss of profits) that is the result of any error or omission by or on behalf of the Supplier, including in relation to the Supplier’s obligations under this agreement or incorrect allocation of GST.
6.2 Fresho not liable in other circumstances
Fresho will not be responsible or liable to the Supplier:
(a) if any Customer elects to change its supplier; or
(b) for any person ordering on the Fresho App without the Supplier’s authority.
6.3 Customers’ complaints
All complaints by Customers about products (including quality, deficiencies, incorrect ordering of products and wastage) must be resolved between the Supplier and the Customer only. Fresho is not responsible for resolving, or the cost of, any such issues. The Supplier indemnifies Fresho against any and all costs, losses and liabilities in connection with Customer complaints and any other issues arising out of or relating to the Supplier’s fulfilment of orders, delivery of products or trading account terms and conditions.
7 INTELLECTUAL PROPERTY
7.1 Ownership of IP rights
The Supplier acknowledges that Fresho is the sole owner of all Intellectual Property Rights. This agreement does not confer any right or licence on the Supplier in, in relation to or in connection with the use of any of those Intellectual Property Rights. Fresho may use and deal with the Intellectual Property Rights in any way it sees fit, including selling, disposing of or otherwise giving rights to use the Intellectual Property Rights or any part of those rights.
7.2 Supplier not to assert rights
The Supplier is not entitled to, and warrants to Fresho that it will not, assert any right, title or interest in or to any of the Intellectual Property Rights, represent that it has any such right, title or interest or cause, permit or assist any other person to claim any right, title or interest in or to the Intellectual Property Rights.
7.3 Access to Fresho App
Fresho will use all reasonable endeavours to ensure that the Supplier and Customers are able to access the Fresho App at all times but Fresho does not warrant, and will not be responsible or liable to the Supplier or any Customer for, any failure of the Fresho App that is outside of Fresho’s control or for temporary interruption of service due to improvement, maintenance or upgrading of the Fresho App from time to time.
The Supplier indemnifies Fresho against any loss, cost or expense whatsoever arising from a claim by a Customer concerning the Fresho App or any of the Intellectual Property Rights.
8.1 Fresho’s confidential information
The Supplier must:
(a) keep all Fresho pricing, the Fresho Fees, functionality of the Fresho App, the Ordering Platform, the payments system, all of the Intellectual Property Rights, any rebates and Fresho’s business operations, know-how and terms of trade strictly confidential; and
(b) not disclose any of that information other than to employees of the Supplier who need to know for the purpose of the Supplier’s dealings with Fresho.
8.2 Supplier’s confidential information
Fresho will maintain confidentiality in respect of all of the Supplier’s Customer data (but excluding prices displayed on the Fresho App) provided by the Supplier to Fresho.
8.3 Obligations survive termination
These obligations of confidentiality continue in full force and effect after the end of this agreement.
9.1 Privacy legislation
Fresho is bound by the Privacy Act 1988 (Cth) and takes steps to ensure that all personal information obtained in connection with the Supplier and Customers is appropriately collected, stored, used, disclosed and transferred in accordance with the Privacy Act 1988. Such information may be accessed by request to Fresho in accordance with the Privacy Act 1988.
9.2 Supplier must comply
The Supplier must comply with the Privacy Act 1988 in connection with any personal information given by the Supplier to Fresho in connection with this agreement.
10 GENERAL PROVISIONS
This agreement may be amended, supplemented or otherwise modified only by a written instrument signed by both parties.
This agreement may not be assigned by either party, nor may either party delegate its obligations or otherwise transfer any rights created by this agreement, without the prior written consent of the other party. Either party may assign this agreement to its successor in connection with the public listing, merger, consolidation or a sale of all or substantially all of its assets or that portion of its business pertaining to the subject matter of this agreement.
This agreement may be executed in one or more counterparts, all of which will together be deemed to be one and the same instrument.
10.4 Entire agreement
This agreement contains the entire understanding of the parties with respect to its subject matter and supersedes any and all previous arrangements and understandings between the parties with respect to its subject matter.
10.5 Further assurances
Each party will do all things and execute all instruments and other documents as may be necessary or desirable to give full effect to the provisions of this agreement and its subject matter.
10.6 Governing law
This agreement is governed by the laws of Victoria, Australia and the parties irrevocably submit to the non-exclusive jurisdiction of courts exercising jurisdiction in Victoria.
10.7 No adverse construction
No provision of this agreement will be construed adversely to a party solely on the ground that the party was responsible for the preparation of this agreement or that provision.
Each party’s address and email address are set out in, as the case may be, Items 4 and 5 of Schedule 1 (unless otherwise notified by either party after the date of this agreement).
10.9 Relationship of parties
Nothing in this agreement is intended or is deemed to constitute a partnership, agency, employer-employee or joint venture relationship between the parties. No party will incur any debts or make any commitments for or on behalf of the other party.
If any provision of this agreement is held to be invalid or unenforceable in any respect, and provided the rights or obligations of either party under this agreement will not be materially and adversely affected thereby:
(a) such provision will not be given any effect by the parties and will not form part of this agreement,
(b) all other provisions of this agreement will remain in full force and effect; and
(c) the parties will negotiate in good faith to modify this agreement to preserve (to the extent possible) their original intent.
10.11 Supplier’s capacity
The Supplier has entered into this agreement in its own right and not as trustee of any trust, unless disclosed in Item 1 of Schedule 1. If a trust is disclosed, the Supplier warrants to Fresho that it is the sole trustee of the trust, will not resign or be removed as trustee during the term of this agreement, has power to enter into this agreement in its capacity as trustee and this agreement is in the interests and for the benefit of the beneficiaries of the trust.
No failure to exercise or delay in exercising any right, power or remedy by a party operates as a waiver. A waiver is not valid or binding on the party granting that waiver unless made in writing.
SCHEDULE 2 – Definitions and interpretation
PART A - DICTIONARY
In this agreement, the following definitions apply:
Business Day means a day which is not a Saturday, Sunday or gazetted public holiday in Melbourne, Victoria.
Customer means a customer of the Supplier notified to Fresho and who uses the Fresho App to order products from the Supplier, and any person who becomes a customer of the Supplier through Fresho.
Customer Data means all data, information and records about Customers held by Fresho in the Ordering Platform or otherwise in connection with Fresho’s business.
Fresho App means an application and all associated software developed by Fresho or its service providers to provide a technology platform for ordering by users of products from their suppliers and to facilitate the management of those orders by the suppliers through an electronic dashboard.
Fresho’s Fees are the fees payable by the Supplier to Fresho for the provision of the Services, as determined in accordance with clause 4 and Item 3 of Schedule 1.
GST and tax invoice have the meanings given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property Rights means any and all intellectual property rights of Fresho worldwide, whether by ownership, licence or use, in and to the Ordering Platform and Customer Data, including any and all copyrights, processes, systems, patents, trade marks, algorithms, software, trade secrets, databases and registered or unregistered rights and designs in or relating in any way to the Ordering Platform.
Ordering Platform means the Fresho App and all Intellectual Property Rights in or connected with the Fresho App.
Services means services provided by Fresho to the Supplier and its Customers, including the services set out in clause 2.
PART B - INTERPRETATION RULES
In this agreement, except to the extent that the context otherwise requires:
(a) a gender includes all genders, words denoting the singular include the plural and vice versa, headings are for convenience only and do not affect interpretation and other grammatical forms of a defined word or phrase have a corresponding meaning;
(b) words denoting a person include a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;
(c) a reference to any document or agreement includes any arrangement or understanding, whether written or oral, and any amendment of or supplement to that document or agreement;
(d) a reference to legislation includes any modification or re-enactment of it, any legislative provision substituted for it and all regulations and statutory instruments issued under it;
(e) a reference to money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
(f) a reference to a party includes its successors or permitted assigns; and
(g) the words includes or including are not words of limitation and do not and must not be taken as detracting from the generality of any provision of this agreement.