Wholesale Agreement Terms and Conditions

1. General

1.1 These Terms and Conditions constitute the Wholesale Agreement ("Agreement") between The Yume APP Pty Ltd ACN 603 045 987 ("Yume"), the Supplier who has registered as a participating Supplier on the Yume Food Platform ("Supplier"), and the Buyer who has registered to purchase Wholesale Products on the Yume Food Platform (“Buyer”).

1.2 Subject to the provisions of this paragraph, Yume may amend the Agreement at our sole discretion and at any time. The most recent version of the Terms and Conditions (as may be amended by Yume from time to time) will be available on the Website and Yume Food Platform. Both the Buyer and the Supplier agree to regularly check the Website or Yume Food Platform for updates and, that either or both of these notification methods constitute adequate notice of any amendments to the Terms and Conditions.

1.3 This Agreement will continue in effect until terminated by either party in accordance with clauses 1.4 and 1.5.

1.4 Yume may terminate this Agreement, at any time for any reason, upon written notice.

1.5 Both the Buyer and the Supplier may terminate this Agreement by providing seven (7) business days written notice to us.

1.6 Termination of this Agreement under clauses 1.4, 1.5, 5.3, or 16.2 will not in any way affect any rights or obligations which are accrued up to and including the date of termination including your obligation to honour any valid Supplier Invoice and Buyer Invoice according to the terms of these Terms and Conditions.

2. Definitions

"Additional Terms" means any additional terms and conditions that the Supplier wishes to impose on the Buyer. These must be expressly and unambiguously disclosed by the Supplier on the Yume Food Platform.

“Advertisement” means the advertisement that the Supplier places on the Yume Food Platform. "Australian Consumer Law" means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

"Buyer" means a person who has registered as a user of the Yume Food Platform, who has chosen to purchase a Wholesale Product via the Website or Yume Food Platform.

"Buyer Order" means an order from a Buyer for Wholesale Product received by Yume via the Yume Food Platform or otherwise and in a form acceptable to Yume.

"Buyer Registration Form" means a form provided by Yume to a potential Buyer for completion by that Buyer requiring certain basic contact and other information.

"Discount Policy" has the meaning set out in clause 5.3

"POD Docket" means a proof of delivery docket in terms acceptable to Yume confirming that Wholesale Product has been delivered to the Buyer (including details of the time and date and location of such delivery).

"Promotional Price" means an amount equal to the Supplier Sell Price plus the Yume Fees.

"Regular Wholesale Price" means the lower of (1) the non-discounted wholesale price (inclusive of any GST) at which a Wholesale Product would normally be sold by the Supplier or (2) the price (inclusive of any GST) at which a Wholesale Product has most recently been offered for sale by the Supplier.

"Removal Policy" has the meaning set out in clause 5.3.
"Supplier" means any person who supplies a Wholesale Product to a Buyer.

"Supplier Application Form" means a form provided by Yume to a potential Supplier for completion by that Supplier requiring certain basic contact and other information.

"Supplier Invoice" means an invoice issued by a Supplier to Yume for the Supplier Sale Price on receiving notification from Yume that it has received a Buyer Order.

"Surplus Produce Order Information Sheet" means an information sheet made available by Yume and completed by Suppliers in respect of a Wholesale Product which, will include amongst other things the Supplier Sell Price, the maximum amount of Wholesale Product to be made available on the Yume Food Platform and any Additional Terms.

"Supplier Sell Price" means an amount equal to no more than 70% of the Regular Wholesale Price or such other amount as may be agreed between the Seller and Yume.

"Used" means used and includes being cut, cooked, treated or otherwise utilized or incorporated into any other product, or consumed or otherwise altered.

"Website" means the Yume website or microsite located at http://yumefood.com.au "Wholesale Product" means the goods to be provided by the Supplier via the Yume Food Platform.

“Yume Fees” means an amount equal to 10% of the Supplier Sell Price.

"Yume Food Platform" means the online platform found on the Website which facilitates buying and selling of Wholesale Products and such other means of facilitation as Yume may from time to time adopt.

“Yume Invoice” means that invoice for the Promotional Price issued by Yume to a Buyer on receipt by Yume of an appropriate order from a Buyer for Wholesale Product.

3. Wholesale Platform

3.1 Yume operates the Yume Food Platform that allows Buyers to purchase a Wholesale Product from Suppliers at the Promotional Price.

3.2 Any prospective Supplier is entitled to sign up to the Yume Food Platform at any time, but that prospective Supplier will not be approved to advertise its Wholesale Products on the Yume Food Platform until Yume is satisfied that the prospective Supplier meets all of the criteria in clause 4 and has completed and returned to Yume a Supplier Application Form in a form acceptable to Yume.

3.3 Once approved, the Supplier shall complete a Surplus Produce Order Information Sheet in respect of each Wholesale Product. The Supplier must use all reasonable endeavors to keep the Wholesale Products available exclusively on the Yume Food Platform until sold and must notify Yume as soon as possible and in any event within 24 hours of a Wholesale Product listed on the Yume Food Platform no longer being available.

3.4 Yume is authorised to promote and allocate the Wholesale Product on the Supplier's behalf subject to these Terms and Conditions and to use all and any relevant Supplier and Wholesale Product brand logo on and in relation to the Yume Food Platform.

3.5 Before placing its first Buyer Order, a potential Buyer must complete and return to Yume a Buyer Registration Form in a form acceptable to Yume.

3.6 Buyers wishing to obtain a Wholesale Product must order the Wholesale Product by submitting a Buyer Order.

3.7 Yume shall notify the relevant Supplier as soon as reasonably acceptable and in any event within 24 hours of receipt by Yume of a Buyer Order.

3.8 Unless the Supplier has previously notified Yume that the relevant Wholesale Product is no longer available, the Yume Invoice will be sent to the Buyer electronically once the Buyer has ordered the Wholesale Product on the Yume Food Platform and once paid will evidence the Buyer’s entitlement to the Wholesale Product.

3.9 The Buyer shall pay the Promotional Price for the Wholesale Product as specified on the Yume Food Platform and set out in the Yume Invoice, in accordance with Clause 7, and must provide to Yume written evidence by way of remittance advice or receipt, within 24 hours of receipt of the Yume Invoice, notwithstanding any later changes to the Promotional Price for the same or similar Wholesale Product on the Yume Food Platform.

3.10 Yume shall notify the Supplier of payment of the Yume Invoice by the Buyer as soon as possible and in any event on the first business day after evidence of payment of the Yume Invoice by the Buyer is provided in accordance with clause 3.9, after which the Supplier must unless agreed otherwise with Yume deliver the Wholesale Product to the Buyer at the location and within the timescales set out in relation to that Wholesale Product on the Yume Food Platform and the Buyer Order.

3.11 Following delivery of the Wholesale Product the Supplier must provide a POD Docket and Supplier Invoice to Yume as soon as possible in respect of each sale of Wholesale Product, and in any event on the first business day after delivery of the Wholesale Product to the Buyer.

3.12 The Supplier must honour all valid transactions and is responsible for all Buyer service relating to the Wholesale Product and for supplying all goods described in the Buyer Order.

4. Supplier Conditions Precedent

4.1 The Supplier must hold an active Australian Business Number or Australian Company Number.

4.2 Yume is committed to advertising only safe, quality products produced in accordance with all applicable legislation, regulations, and codes of practices. To that end, before Yume will approve a prospective Supplier to advertise a Wholesale Product on the Yume Food Platform, the prospective Supplier must provide Yume with copies of any applicable:

(a) food safety certifications;

(b) Hazard Analysis and Critical Control Points (HACCP) Certification;

(c) food premises registration;

(d) recall policies; and

(e) product & public liability insurance policies.

4.3 The Supplier represents and warrants to Yume that for so long as the Supplier’s Wholesale Product is advertised on the Yume Food Platform, the Supplier holds all of the applicable documents listed in clause 4.2 and all other necessary documents in full form and effect and that the Wholesale Product is not subject to or likely to be subject to any food recall requirement and the Supplier warrants to notify Yume of any amendment, material breach, or revocation of any of those documents.

4.4 The Supplier shall at all times fully comply with and be responsible for all state and territory food recalls in relation to Wholesale Product, including Wholesale Product that has been delivered to a Buyer, and shall follow at all times the Food Industry Recall Protocol of the Food Standards Agency (http://www.foodstandards.gov.au/industry/foodrecalls/firp/Pages/default.aspx ) and/or such other regulations and laws as may be applicable at any time in relation to Wholesale Products.

4.5 To the extent that the Supplier is supplying alcohol, or any other Wholesale Product that requires a licence or a form of certification to sell that Wholesale Product, the Supplier represents and warrants to Yume and to the Buyer that it has all the necessary licences and certifications and will immediately notify Yume of any changes to that licence or certification.

5. Wholesale Products

5.1 Yume's aim and intention is to help Suppliers reduce food wastage and in so doing, help them operate in a more sustainable and environmentally friendly way. The Wholesale Product must therefore be limited to surplus food products that are approaching their 'use by' or 'best-before' date, or which are otherwise unable to be sold at full price through the Supplier's regular channels, but which are still fit for human consumption and compliant with all Australian food safety standards, regulations and laws.

5.2 The Supplier must ensure that:

(a) the Wholesale Product is consistent in all material respects with the description or image advertised and represented on Yume Food Platform;

(b) where the Wholesale Product is sold by the Supplier by weight or volume, the weight or volume of the Wholesale Product actually delivered to the Buyer shall be not less than the weight or volume ordered by the Buyer;

(c) the Wholesale Product is, including at the time of delivery to the Buyer, fit for human consumption and complies with all applicable Australian food service, manufacture and safety standards, the Food Standards Code, regulations and laws; and

(d) the Supplier fully complies at all times with the Australian Consumer Law.

5.3 Yume shall from time to time notify Suppliers of its policies (if any) relating to:-

(a) further discounting of Wholesale Products (Discount Policy); and

(b) the removal of Wholesale Product from the Yume Food Platform (Removal Policy).

For the avoidance of doubt, any Discount Policy shall be voluntary on the part of each Supplier but without prejudice to clause 5.4 any Removal Policy shall be mandatory.

5.4 Notwithstanding any Removal Policy, Yume reserves the right at any time to reject, revise, or discontinue any Wholesale Product, at any time and for any reason, and to terminate the Wholesale Product and to remove all references to the Wholesale Product from the Website or Yume Food Platform; and redirect or delete any URL used in connection with the Wholesale Product whether in accordance with the Removal Policy or otherwise.

5.5 The Supplier accepts that Wholesale Products that have been allocated to Buyers form a binding agreement (including any discounting in accordance with the Discount Policy) and guarantees to Yume that the Buyer will receive the Wholesale Product described in the Supplier Invoice subject only to payment of the Yume Invoice by the Buyer.

6. Defective Wholesale Products

6.1 The Buyer is responsible for inspecting and checking all Wholesale Product delivered to it by a Supplier and must notify Yume of any claim relating to a defective Wholesale Product as soon as possible and in any event within 24 hours of receipt by the Buyer of the Wholesale Product. If the Buyer does not notify Yume of a defective Wholesale Product within 24 hours in accordance with this clause 6.1, the Wholesale Product will be deemed to be free from any defect at delivery.

6.2 Any notification under clause 6.1 must be by email to eat@yumefood.com.au and must include reasonable detail of the defect in the Wholesale Product together with photographic evidence of a reasonable quality which if possible must show the defect in the Wholesale Product.

6.3 Yume will assess each notification received under clause 6.2 on a case by case basis and notify the Buyer of the outcome within a reasonable period of time.

6.4 Without prejudice to the Buyer's statutory rights, following receipt of a notice under clause 6.1, provided and to the extent that the relevant Wholesale Products:

6.4.1 have not been held by the Buyer for more than 7 days from the date of delivery specified on the POD Docket;

6.4.2 have at all times been properly stored by the Buyer in a manner appropriate for the relevant Wholesale Product, are in the same condition as specified on the POD Docket, and have not been removed from any packaging;

6.4.3 have not been Used, Yume shall be entitled to and may agree that the relevant Wholesale Product should be returned to the Supplier.

6.5 Without prejudice to the Buyer's statutory rights, where Yume agrees that Wholesale Product can be returned to the Supplier in terms of clause 6.4, Yume may issue a credit note or otherwise refund or arrange for a refund of the cost of the defective Wholesale Product to the Buyer and arrange for the defect Wholesale Product to be returned. Yume is not responsible for defective Wholesale Products supplied by the Supplier.

6.6 Unless specified otherwise by Yume, any credit note issued by Yume in terms of Clause 6.4 may be used by the Buyer in respect of any Wholesale Product from any Supplier.

6.7 Notwithstanding clause 6.5 Yume shall have no liability to the Buyer for any failure of the Supplier to make such refund and it shall be the sole responsibility of the Supplier to collect the defective Wholesale Product from the agreed point of delivery.

6.8 Without prejudice to the Buyer's statutory rights:

6.4.1 the facilitation of any returns and/or refunds by Yume shall be at Yume's sole discretion; and

6.4.2 a Buyer's change of mind or error when agreeing to purchase Wholesale Product does not entitle the Buyer to return a Wholesale Product and/or to a refund for a Wholesale Product.

7. Fees and Payment

7.1 Yume does not charge the Supplier or the Buyer any upfront registration fees.

7.2 Unless otherwise agreed in advance by Yume of its sole discretion, the Buyer must pay the Promotional Price in full as set out in the Yume Invoice to Yume directly by Credit Card or by such other means agreed in advance with such Buyer.

7.3 Subject to full payment of the Yume Invoice in accordance with clause 7.2 and following receipt by Yume of an acceptable POD Docket, Yume will deduct the Yume Fees from the amount received by Yume and will instruct the transfer of the balance to the Supplier as soon as reasonably practicable and in any event within 48 hours from the date of delivery of the Wholesale Product in full and final settlement of the Supplier Invoice.

7.4 If following payment of a Yume Invoice the Supplier fails to deliver the Wholesale Product to the Buyer and provide an acceptable POD Docket within the timescales set out in relation to the Wholesale Product on the Yume Food Platform and the Buyer Order, Yume shall be entitled to notify the Buyer and the Supplier that the transaction is void in which event Yume shall return to the Buyer the amount received from the Buyer in payment of the Yume Invoice. If a transaction is voided in accordance with this clause 7.4, the Supplier shall indemnify Yume for all related reasonable costs incurred by Yume.

7.5 Additional payments for shipping are at the sole discretion of the Supplier, must be specified as part of the Additional Terms and shall be paid by the Buyer to Yume and forwarded to the Supplier at the same time as payment of the Supplier Invoice.

7.6 Yume is authorised to review the Supplier's credit history, which may include a credit check.

7.7 Yume Fees are compensation to Yume for marketing, promoting, and advertising the Wholesale Product and for the use of the Yume Food Platform.

7.8 Notwithstanding any other provision of this Agreement, Yume shall be entitled to set off against or deduct from payments due to be made to the Supplier in terms of clause 7.3 any sums owed to Yume by the Supplier.

7.9 It is the Supplier's responsibility to determine what, if any, taxes apply to the payments the Supplier takes or receives from a Buyer, and it is the Supplier's responsibility to collect, report and remit the correct tax to the appropriate tax authority. Yume is not responsible for determining whether taxes apply to the Supplier's transaction with Buyers, or for collecting, reporting or remitting any taxes arising from any transaction with or by the Supplier and Buyer. The Supplier may be asked to provide Yume with a valid tax identification number for tax reporting purposes. Notwithstanding anything else in this Agreement, the Supplier shall be, and will remain, registered for tax collection purposes in all states and localities in which the Supplier is required to be so registered in connection with the Wholesale Product, and shall be responsible for paying any and all taxes related to the sale of the Wholesale Product.

8. Advertising

8.1 Upon registration as a Yume Supplier, the Supplier may upload the following advertising material to build their account profile:

(a) company details;

(b) company logo;

(c) high quality 'stock' photographs or images of the Wholesale Product; and

(d) descriptions of the Wholesale Product.

8.2 The Supplier must not upload any photographs, images, text or any other material that may be considered to be of inadequate quality, unprofessional, unlawful, obscene, offensive or otherwise inappropriate.

8.3 Yume may in its absolute discretion remove any material which it considers inappropriate or of an unacceptable quality that has been uploaded by the Supplier and may issue the Supplier a warning or revoke the Supplier's right to use Yume and its services.

9. Buyer Data Restrictions

9.1 "Buyer Data" means all identifiable information about Buyers generated or collected by Yume through the Yume Food Platform, including, but not limited to, Buyers' name, shipping addresses, email addresses, phone numbers, Buyer preferences and tendencies, and financial information.

9.2 Buyers and Sellers must register valid personal details with Yume in order to purchase and sell Wholesale Products.

9.3 The Supplier shall use Buyer Data only to fulfill its redemption obligations in connection with the Wholesale Product as authorised by this Agreement ("Agreed Purpose"). The Supplier expressly agrees that any Buyer Data shall be used only for the Agreed Purpose. The Supplier represents and warrants that it will not resell, or otherwise disclose any Buyer Data to any third party, in whole or in part, for any purpose, unless required by applicable law. If the Supplier engages any third party to facilitate its redemption obligations hereunder, the Supplier shall ensure that such third party implements and complies with reasonable security measures in handling any Buyer Data.

9.4 The Supplier shall immediately notify Yume if the Supplier becomes aware of or suspects any unauthorised access to, or use of, any Buyer Data or any confidential information of Yume, and shall cooperate with Yume in the investigation of such breach and the mitigation of any damages caused by the breach. The Supplier will bear all associated expenses incurred by Yume to comply with applicable laws (including, but not limited to, any data breach laws) or arising from any unauthorised access or acquisition of Buyer Data while such data is in the Supplier's possession or control. Upon termination or expiration of this Agreement, the Supplier shall, as directed by Yume, destroy or return to Yume all the Buyer Data in the Supplier's or any agent of the Supplier's possession.

10. Marketing

10.1 Yume and its business partners may communicate with the Supplier with regard to products, promotions, and other services that may be of interest to the Supplier. This may include email or other communications. Yume may also solicit the Supplier's opinion for market research purposes. The Supplier agrees that Yume and its business partners may contact or communicate with it, in relation to the above items.

11. Intellectual Property Rights

11.1 The Supplier grants to Yume a non-exclusive, worldwide, royalty free, perpetual, transferable and sub-licensable licence and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform:

(a) any audiovisual content, video recordings, audio recordings, photographs, product images, graphics, artwork, text and any other content provided by Supplier ("Materials")

(b) the Supplier's name, logos, trademarks, service marks, domain names ("Supplier IP"), in each case, arising in relation to or in connection with the Yume service, the Website, the Yume Food Platform in all media or formats now known or hereinafter developed ("Licence").

11.2 The Supplier represents and warrants to Yume and each of its related bodies corporate that the Supplier has all rights, consents or approvals to use the Materials and is not breaching the intellectual property rights of any third party in using or providing the Materials or Supplier IP to Yume for use in relation to the Yume service, Website or Yume Food Platform.

11.3 The Supplier acknowledges and agrees that Yume owns all interest in and to the Website, Buyer Data, Yume trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the Website, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by Yume or at Yume's direction, or assigned to Yume, and any materials, software, technology or tools used or provided by Yume to conduct its business and provide the services in connection therewith (collectively "Yume IP"). The Supplier must not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare the Yume IP or any portion thereof, or use such Yume IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution.

11.4 The Supplier shall keep the Yume IP confidential, and shall not prepare any derivative work based on the Yume IP or translate, reverse engineer, decompile or disassemble the Yume IP.

11.5 The Supplier shall not include any trade name, trademark, service mark, domain name, social media identifier, of Yume or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. The Supplier shall not use or display any Yume IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between the Supplier or a third party and Yume.

12. Representations and Warranties

12.1 The Supplier represents and warrants that:

(a) the Supplier has the right, power and authority to enter into this Agreement;

(b) the Supplier, if required by applicable law, is registered for tax collection purposes in all jurisdictions where the Supplier's goods and services will be provided;

(c) the Supplier, if providing Alcohol as a Wholesale Product, is licensed to do so by the relevant liquor regulator in all jurisdictions where the alcoholic product will be provided and will comply with the terms of that licence;

(d) the terms and conditions of the Advertisement, including any discounts offered thereunder do not and will not violate any, local, state or federal law, statute, rule, regulation, or order, including but not limited to, any law or regulation governing the use, service, storage, sale, and distribution of food;

(e) the Supplier owns all interest in and to the Supplier IP and has licensing rights in (with the right to sublicense to Yume) the Materials, and has the right to grant the Licence stated in clause 11.1 of these Terms and Conditions;

(f) the Supplier’s IP and the Materials do not include any material that is unlawful, threatening, abusive, defamatory, vulgar, obscene, profane or otherwise objectionable, or that encourages conduct that constitutes a criminal offence, gives rise to civil liability or otherwise violates any law;

(g) any advertising or promotion of the Supplier's goods and services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable law;

(h) it is not subject to any inquiries, warnings, infringement notices, closure of food premises, or any other food safety related offences or penalties and that it will inform Yume within five (5) business days of becoming aware of any circumstance which could lead the Supplier to be subject to any of the above mentioned inquiries or penalties.

13. Indemnification

To the extent allowed under applicable law, the Supplier agrees to defend, indemnify and hold Yume, its affiliated and related entities, and any of its respective officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to reasonable attorneys' fees and costs) arising out of or relating to any of the following:

(a) any breach or alleged breach by the Supplier of this Agreement, or the representations and warranties made in this Agreement;

(b) any claim for tax obligations of the Supplier arising from the sale and redemption of a Wholesale Product;

(c) any claim arising out of a violation of any law or regulation governing the provision of the Supplier's goods and/or services;

(d) any penalties or claims arising out of the Supplier's violation of law or regulation governing the manufacture, service, storage, handling, use, sale, and distribution of food and food products;

(e) any claim by a Buyer or anyone else arising out of or relating to the goods and services provided by Supplier, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages;

(f) any claim arising out of the Supplier's misuse of Buyer Data, or any violation of an applicable data privacy or security law.

(g) Any legal fees incurred by Yume in defending a claim brought against it that is related to the Supplier's provision of goods and/or services.

14. Confidentiality

14.1 The terms of this Agreement are confidential, and both the Buyer and the Supplier agree not to disclose the terms described in this Agreement to any party (other than to its employees, parent companies, shareholders, lawyers and accountants on a strict need-to-know basis or as required by applicable public records and other law, if the Supplier has taken the necessary precautions of the kind generally taken with confidential information to purchase the confidentiality of the information made available to such parties).

14.2 In the event of a breach, Yume is entitled to injunctive relief and a decree for specific performance, and any other relief allowed under applicable law (including monetary damages if appropriate).

15. Limitation of Liability

15.1 Yume is not liable to the Supplier for any lost profits, lost business, special, incidental, exemplary, consequential, punitive, or indirect damages regardless of the form of action, whether in contract, tort or otherwise, even if informed of the possibility of any such damages in advance.

15.2 Yume is not liable to the Buyer for any loss either financial or non-financial incurred as a result of the quality of a Wholesale Product supplied by the Supplier to the Buyer.

15.3 Yume does not warrant or guarantee that the services offered on or through the Website or Yume Food Platform will be uninterrupted or error-free, that the Advertisements are error-free, or that any Yume service will result in any revenue or profit for the Supplier.

15.4 Yume's sole and complete liability to the Supplier for any claims arising out of or relating to this Agreement is limited to the amount of fees charged by Yume hereunder after final calculation and reconciliation of all refunds. This limitation of liability applies to the maximum extent permitted by any applicable law and notwithstanding the failure of any limited remedy.

16. Insurance

16.1 The Supplier agrees to hold and maintain during the Term, a comprehensive public liability policy to cover:

(a) death of, or bodily injury (including disease or illness) to, any person; and

(b) loss of, or damage to, property, arising out of or in connection with this Agreement, for an amount up to at least $10 million per event.

16.2 Yume may terminate this Agreement immediately if the Supplier fails to comply with any of its obligations in this clause 16.

17. Donated food

17.1 Where the Supplier chooses to donate food to charities (“recipients”) and/or Yume requires the donation of food in accordance with the Discount Policy the Supplier agrees that:

(a) it will donate the food in good faith with the intention that the recipient does not have to pay for the food;

(b) the donated food was safe to the recipient at the time it left the possession or control of the Supplier;

(c) if the food was of a nature that required it to be handled in a particular way to ensure that it remained safe to consume after it left the possession or control of the Supplier, that the Supplier informed the recipient of those handling requirements; and

(d) if the food only remained safe to consume for a particular period of time after it left the possession or control of the Supplier, that the Supplier informed recipient of that time limit.

18. Other

18.1 The parties are independent contractors. Nothing in this Agreement is to be construed to create a joint venture, partnership, franchise, or an agency relationship between the parties. Neither party has the authority, without the other party's prior written approval, to bind or commit the other in any way.

18.2 This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.

18.3 The Supplier expressly agrees that continuing to market and offer for sale any Wholesale Products through Yume after notification of any amendments or modifications to this Agreement shall constitute the Supplier's acceptance of such amendments or modifications and agreement to be bound by same.

18.4 The Supplier is not authorised to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without Yume's prior written consent. Any waiver must be in writing and signed by an authorised signatory of Yume. Yume is authorised to transfer or assign this Agreement to a present or future affiliate or pursuant to a merger, consolidation, reorganisation or sale of all or substantially all of the assets or business, or by operation of law, without notice to the Supplier.

18.5 The parties agree that it is not necessary for Yume to incur an expense or make a payment before enforcing any right of indemnity conferred by this Agreement or to mitigate its loss.

18.6 If any provision of this Agreement should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement are not affected.

18.7 This Agreement, including its validity, interpretation and construction and all other related matters shall be governed and interpreted by the law of Victoria, Australia.