Terms & Conditions
Kick Off Summer Campaign ("Conditions of Entry")

Promotion:

Kick Off Summer Campaign

Promoter:

THE TRUSTEE FOR REGAL CREAM PRODUCTS TRUST t/a BULLA DAIRY FOODS, ABN 11 845 336 184, 15 Swann Drive, Derrimut, VIC 3030

Parties:

• COLES SUPERMARKETS AUSTRALIA PTY LTD (ABN 45 004 189 708) of 800 Toorak Road, Hawthorn East, VIC 3123 (“Coles”)
• THE TRUSTEE FOR REGAL CREAM PRODUCTS TRUST t/a BULLA DAIRY FOODS (ABN 11 845 336 184) of 15 Swann Drive, Derrimut, VIC 3030 (“Bulla”)
• SECONDBITE (ABN 66 116 251 613) 93 Northern Road, Heidelberg West, VIC 3081, a registered charity with the Australian Charities and Non-for profits Commission (“Organisation”)

Promotional Period:

Start date: 28/09/22 at 12:01 am AEDT

End date: 25/10/22 at close of business

Eligible entrants:

Entry is only open to Australian residents. Entrants under the age of 18 must have parent or legal guardian approval to enter.

How to Enter:

To enter, the entrant must, during the Promotional Period, purchase any Participating Product from any Coles supermarket within Australia (“Qualifying Purchase”).

Participating Products:

SKU	Product Description
9486397	Bulla Cc Ice Cream Choc Chip
9486411	Bulla Cc Ice Cream Cookies N Cream
3884921	Bulla Cc Ice Cream Neapolitan
9486590	Bulla Cc Ice Cream Vanilla
5049084	Bulla Cc Ice Cream Choc Chip Mint
4843577	Bulla Cc Ice Cream Choc Hazelnut Spread
5487864	Bulla Creamy Classics Choc Honeycomb Cone 4pk
5487842	Bulla Creamy Classics Neapolitan Cone 4pk
5487853	Bulla Creamy Classics Triple Choc Cone 4pk
5487810	Bulla Creamy Classics Van Choc Fudge Cone 4pk
4845415	Bulla Cc Ice Cream Honeycomb Sticks 4Pk
4845380	Bulla Cc Ice Cream Neapolitan Stick 4pk
4483653	Bulla Creamy Classic Sticks Mixed 4pk
4483562	Bulla Creamy Classic Sticks Vanilla 4pk
5938974	Bulla 10pk Choc Bars Ice Cream Vanilla
4457201	Bulla Choc Fudge Ice Cream 8pk
5974719	Bulla Crunch 8pk Frozen Caramel Strwby Honeycomb
5974741	Bulla Crunch Ice Cream Double Chocolate 78.9ml
4457187	Bulla Crunch Vanilla Ice Cream 8pk
6749810	Bulla Frozen Yoghurt Strawb Mango Wildberry
4457176	Bulla Nourish Choc Banana Sticks 6pk
3847390	Bulla Nourish Ice Cream Mango & Coconut Sticks 6p
5892294	Bulla Splits 10pk Fz Lemon Lime Mango Rasp
5892283	Bulla Splits Ice Cream Raspberry Frozen 75ml
5892308	Bulla Splits Ice Cream Selection Frozen 75ml
4455556	Bulla Splits Summer Splits 10pk
6043866	Bulla Yoghurt Minis 14pk Frozen Variety
4455159	Bulla Murray St Hazelnut Fudge 4pk
3822629	Bulla Murray St Icecream Sticks Blackberry Swirl
3697040	Bulla Murray St Icecream Sticks Caramel Maple MacA
3697083	Bulla Murray St Icecream Sticks Van Bean & Choc Al
4455385	Bulla Murray St Raspberry Shortcake 4pk
5488164	Murray Street Daintree Honey Swirl 4pk
5363602	Bulla Murray Street Choc & Fudge Ripple
5363657	Bulla Murray Street Strawberries & Cream
5363679	Bulla Murray Street Cara Swirl & Shortbread
5363668	Bulla Murray Street Honey & Slt Cara Peanut
5363599	Bulla Murray Street Ice Cream Vanilla Bean
5363624	Bulla Murray Street Van & Boysenberry Swirl
4845448	Bulla Cc Ice Cream Choc Hazelnut Sndwich 4pk
3847980	Bulla Cc Sandwich Neapolitan 4pk
3846140	Bulla Cc Sandwich Vanilla 4pk
5488084	Bulla Chupa Chupa Mixed Mini Sticks
5488197	Bulla Frozen Yoghurt Apricot, Mango & Pass
TBC	Bull Choc Tops

Funding Amount Details:

For every Qualifying Purchase, Coles and Bulla will provide a funding amount equal to 10 cents each (20 cents in total) (“Product Funding Amount”) to the Organisation.

The Product Funding Amount is payable at the conclusion of the Promotion in accordance with the following process:

• Coles will advise the Organisation of the total Product Funding Amount within a reasonable time;
• The Organisation will provide Coles with a tax invoice for the total Product Funding Amount;
• Coles will pay the invoice in accordance with the Further Terms below;
• Coles will issue a tax invoice to Bulla for Bulla’s share of the Funding Amount, which must include:
  1. a statement that Bulla’s share of the Funding Amount is being collected on behalf of the Organisation as a donation from Bulla to the Organisation;
  2. confirmation that the Organisation is an authorised Deductible Gift Recipient;
  3. an attached copy of a payment receipt issued by the Organisation confirming Coles’ payment under (c) above; and
  4. details of the Organisation, including its legal name and ABN.
• Subject to Coles issuing Bulla with a tax invoice in accordance with (d) above, Bulla will arrange to pay its share of the Funding Amount to Coles within 30 days of Coles issuing an invoice for such advising of the Funding Amount; and
• Within 30 days of Bulla paying the invoice issued by Coles in accordance with (e) above, Coles must issue a payment recieipt to Bulla, which must include:
  1. confirmation of Bulla’s share of the Funding Amount and that the amount has been paid in full;
  2. a statement that Bulla’s share of the Funding Amount was collected on behalf of the Organisation as a donation from Bulla to the Organisation;
  3. confirmation that the Organisation is an authorised Deductible Gift Recipient; and
  4. details of the Organisation, including its legal name and ABN.

The Organisation will spend the total Product Funding Amount:

• directly to achieve the Organisation’s charitable or community purposes, with all funds to be distributed within three months of receiving the funds;
• such that no more than 10% is used for administrative, promotional or fundraising activities, including the costs the Organisation incurs to comply with its obligations under this agreement; and
• as otherwise set out in this agreement.

Further Conditions:

1. The entrant agrees and acknowledges that they have read these Conditions of Entry (and Schedule) and that participating in this Promotion is deemed to be acceptance of these Conditions of Entry (and Schedule). Any capitalised terms used in these Conditions of Entry have the meaning given in the Schedule, unless stated otherwise.
2. The Promotion commences on the Start Date and ends on the End Date ("Promotional Period"). Entries are deemed to be received at the time of receipt by the Promoter and not at the time of transmission or deposit by the entrant. Records of the Promoter and its agencies are final and conclusive as to the time of receipt.
3. Valid and eligible entries will be accepted during the Promotional Period.
4. The Parties agree that the monetary contribution(s) referred to above and any other amount provided to the Organisation pursuant to any other activities or campaigns undertaken by the parties during the Promotional Period, will collectively be referred to as the Funding Amount for the purpose of this Agreement.
5. Any guarantee or warranty given is in addition to any relevant statutory guarantees and warranties and nothing in these Conditions of Entry restricts, excludes or modifies or purports to restrict, exclude or modify any statutory consumer rights under any applicable law including the Competition and Consumer Act 2010 (Cth).
6. The Organisation consents to Coles using the Organisation’s logos, indicia, trade marks and trade names (“Organisation Logos”) during the Promotional Period in connection with implementing the Promotion and conducting any other activities in connection with the Promotion. Coles will obtain the Organisation’s approval before using the Organisation Logos (excluding Coles’ internal use in connection with the Promotion). The Organisation will not unreasonably withhold its approval of Coles’ use of the Organisation Logos. Once the Organisation approves Coles’ particular use or format of use of an Organisation Logo, Coles is not required to obtain further approval for the same or similar use during the Promotional Period.
7. If Coles requests, the Organisation will promptly provide Coles with no less than 2 written or video ‘quotes’ or endorsements from its most senior executive officer (or such other officer Coles agrees to) in a format the parties, acting reasonably, agree. Coles may at Coles’ sole discretion use the quotes or endorsements in connection with the Promotion during the Promotional Period (and for a reasonable period after the Promotional Period).
8. If Coles requests, the Organisation will make available a suitable spokesperson during the Promotional Period to provide public comment (“Comment”) about Coles, the Promotion. The Organisation will consult with Coles about the Comment’s content before releasing the Comment.
9. If Coles requests, the Organisation will host and facilitate (at its expense) an educational seminar in Coles’ Support Centre (800 Toorak Road, Hawthorn East VIC 3123) to raise awareness of the Promotion.
10. Subject to clause 11 below, the Organisation agrees that, during the Promotional Period, it will strongly support/recognise Coles’ contribution to the Promotion through the Organisation’s own internal and external communications channels (including but not limited to digital and social media channels).
11. The Organisation must:
    1. not use any Coles name, trademark, logo, indicia, or other intellectual property for any purpose (including for communication about the Promotion);
    2. issue or publish any statement or communication about the Promotion, without obtaining Coles’ prior written consent;
12. The Organisation will provide reports to Coles:
    1. as soon as practicable after the Promotion ends;
    2. for a reasonable period after the Promotional Period ends (if Coles requests);
    3. setting out how the Organisation has spent or will spend the Funding Amount in accordance with this agreement.
13. If for any reason any aspect of this Promotion is not capable of running as planned, including by reason of computer virus, communications network failure, bugs, tampering, unauthorised intervention, fraud, technical failure or any cause beyond the control of the Promoter, the Promoter may in its sole discretion cancel, terminate, modify or suspend the Promotion and invalidate any affected entries.
14. The Promoter and its associated agencies and companies will not be liable for any loss (including, without limitation, indirect, special or consequential loss or loss of profits), expense, damage, personal injury or death which is suffered or sustained (whether or not arising from any person's negligence or wilful misconduct) in connection with this Promotion, except for any liability which cannot be excluded by law (in which case that liability is limited to the minimum allowable by law).
15. Failure by the Promoter to enforce any of its rights at any stage does not constitute a waiver of these rights.

Annexure A: Further Terms

1 ACTIVITIES

1.1 The Organisation shall during the Promotional Period:

a) perform the Promotion safely and with due diligence;

b) liaise with and provide information to Coles relating to the Promotion as reasonably required;

c) attend meetings with Coles

d) as and when required by Coles;

e) comply with all reasonable requests and directions received from Coles in connection with the Promotion;

f) liaise, cooperate with and assist Coles in any monitoring, review or other evaluation of the Promotion;

g) ensure that the Organisation and all of its agents, employees and representatives do not act in any manner that may harm Coles’ reputation or to cause Coles detriment, damage, injury or; and

h) comply with the exclusivity arrangement set out in Item 3 of the Key Terms.

2 FUNDING AMOUNT

2.1 The Funding Amount stated in this Agreement is the only amount payable by Coles to the Organisation in connection with the Promotion. The Organisation will be responsible for all expenses and costs related to its performance of this Agreement unless otherwise agreed by Coles in writing in advance.

2.2 Each party will pay for its own implementation costs, including but not limited to signage, artwork, photography, display, set up and similar expenses related to the performance of its obligations under this Agreement.

2.3 The Organisation will issue Coles with a valid tax invoice in accordance with the payment terms set out in the Key Terms and Coles will pay the required Funding Amount within 30 days of the date of the valid tax invoice or as otherwise stated in the Key Terms.

2.4 If the Key Terms require the Organisation to use the Funding Amount for a particular purpose, the Organisation must not use the Funding for any other reason.

2.5 The Organisation must:

a) keep financial records relating to its use of the Funding Amount, including all income and expenditure relating to the Promotion (Financial Records);

b) retain the Financial Records for a period of five (5) years after the expiry or termination of this Agreement; and

c) upon Coles’ reasonable request, allow Coles or its nominated third-party auditor to audit the Financial Records during business hours (Audit). If Coles appoints a third-party auditor, Coles will bear the cost of that third party auditor.

2.6 If the Audit determines that there was any non-compliance by the Organisation, then the Organisation will be liable for the reasonable cost of the Audit and the reasonable cost of any subsequent audit undertaken by Coles or its nominated third-party agent to confirm rectification of the non-compliance.

2.7 The Organisation acknowledges that, if the Funding Amount, consists of a portion of the sale price of the Products, Coles is the party making the donation to the Organisation, not the Coles’ customer.

3 GST

3.1 If an amount of GST is payable on a supply under this Agreement:

a) the recipient of the supply must pay, in addition to the consideration payable or to be provided for the supply, an additional amount equal to consideration paid or payable multiplied by the prevailing rate of GST which applied to the supply at the time of the supply; and

b) the recipient must pay the additional amount to the supplier at the same time as the other consideration.

However, the recipient need not pay the additional amount until the supplier gives the recipient a Tax Invoice (except where the recipient is required to issue the Tax Invoice).

3.2 If for any reason (including, without limitation, the occurrence of an adjustment event) the amount of GST payable on a supply varies from the GST amount paid to the supplier, the parties will account to each other for the difference. If the recipient is required to pay an additional amount under this clause 3.2, and the reason an additional amount is payable is because of the occurrence of an adjustment event, the recipient need not pay the additional amount until the supplier gives the recipient an adjustment note (except where the recipient is required to issue the adjustment note).

3.3 If an amount paid by the supplier as and for GST under this Agreement is overpaid, and section 105-65 of Schedule 1 to the Taxation Administration Act 1953 (Cth) or Division 142 of the GST Act applies to that amount, then the amount is not recoverable from the supplier unless the supplier can recover that amount from the Commissioner of Taxation after taking all reasonable steps to do so.

3.4 Clauses 3.1 and 3.2 do not apply to the extent that the GST on the supply is payable by the recipient under Division 83 or Division 84 of the GST Act.

3.5 If any party is entitled to payment of any costs or expenses by way of reimbursement or indemnity, the claim must exclude any amount for which that party (or representative member if the party is a member of a GST group) may obtain an input tax credit.

3.6 Unless clearly indicated to the contrary, all amounts referred to in this Agreement, other than in this clause 3, are GST exclusive.

3.7 To the extent Coles is acting on behalf of the Organisation in connection with the Promotion including without limitation the sale of donation cards, the Organisation shall be responsible to collect and pay any GST which applies to the sale of those donation cards (or the performance of other relevant activities).

3.8 The Organisation takes responsibility for correctly advising Coles’ customers via appropriate terms and conditions, in relation to the tax deductibility of any donations they make by purchasing donation cards.

3.9 Unless clearly indicated to the contrary, “GST” and other terms used in this clause 3 (and in other provisions of this Agreement referable to GST) have the meanings given to those terms by the GST Act.

4 WARRANTIES

4.1 The Organisation warrants that:

a) entering into this Agreement will not conflict with any other arrangement the Organisation has previously entered;

b) the rights granted to Coles in relation to this Agreement, and the use and reproduction by Coles of materials provided by the Organisation pursuant to this Agreement, will not infringe the intellectual property or other rights of any third party, will, or will unlikely, not mislead and will not otherwise contravene any law;

c) the Organisation will disburse the Funding Amount in accordance with the Key Terms and disbursement in this way is consistent with the Organisation’s constitution, rules and other governing documents;

d) the Organisation has advised Coles before entering this Agreement of any conditions of the Organisation’s registration, licence or other relevant permission under fundraising laws which are or may be relevant to Coles’ undertaking the Promotion; and

e) the Organisation will have appropriate procedures in place for assessing and approving grant applications to ensure that no conflict of interest arises.

4.2 The warranties made by the Organisation in clause 4.1 are continuing and survive termination of this Agreement.

5 INTELLECTUAL PROPERTY

5.1 Each party can only use the name, trademarks, logos and other intellectual property of the other party as expressly permitted under the Key Terms or otherwise with the prior written consent of the other party. Where express permission is given in the Key Terms, it must not be withdrawn. Where a party provides written consent for use not expressly permitted by the Key Terms, it may be withdrawn for any reason by notice. Usage of the other party’s trademarks, logos and other intellectual property must cease on termination of this Agreement.

6 IMPROPER USE

6.1 Each party must not, at any time during the Promotional Period or after its termination, do, permit to be done, omit to do or otherwise allow any act or thing, or assist any other person to do any act or thing, which is likely to:

a) prejudice or detract from the goodwill, reputation or value of any of the names, trademarks, logos or other intellectual property of the other party; or

b) invalidate, impair or prejudice the rights or title of the other party (whether statutory or at common law) in any of the names, trademarks, logos or other intellectual property of the other party.

7 JOINTLY CREATED MATERIALS

7.1 Where material is created jointly by both parties to this Agreement, then subject to clause 7.2:

a) the copyright subsisting in that jointly created material is jointly owned and the parties will execute such further documents as may be necessary or desirable to effect that joint ownership; and

b) neither party will use nor license that material without the permission of the other.

7.2 Nothing in clause 7.1 transfers ownership in any intellectual property rights of a party in pre-existing names, trade marks, logos and other subject matter that has been included in any jointly created material, nor limits that party's rights to the use thereof.

7.3 The obligations of the parties under clause 7.1 and 7.2 are continuing and survive termination of this Agreement.

8 LIMITATION ON USE

8.1 Notwithstanding anything else in this Agreement, where the Organisation creates material for the Promotion, the Organisation is not entitled to use that material or anything that reproduces a substantial part of that material, in any campaign (or similar) involving, or otherwise for the benefit of, a competitor of Coles.

8.2 The obligations of the Organisation under clause 8.1 are continuing and survive termination of this Agreement.

9 PRODUCT RANGING POSITIONING AND PRICING

9.1 Each party acknowledges that:

a) the Product will be ranged during the Promotional Period in Coles supermarkets for as long as the Product meets the Product Ranging Principles set out on the Coles Supplier Portal at www.supplierportal.coles.com.au/csp/wps/portal/web/Home (Product Ranging Principles). For the avoidance of doubt, the Organisation acknowledges that the Product may be delisted if it fails to meet sales targets in accordance with the Product Ranging Principles;

b) the positioning of the Product in store is subject to the Coles Product Ranging and Shelf Allocation Principles set out on the Coles Supplier Portal at www.supplierportal.coles.com.au/csp/wps/portal/web/Home (Shelf Allocation Principles); and

c) the retail price of the Product will be at the total discretion of Coles. Coles will consider reasonable market rates in respect of similar products when determining the retail price of the Product.

10 COMPLIANCE WITH LAWS

10.1 The Organisation will ensure that all promotional materials published or displayed by or on behalf of the Organisation with respect to the Promotion are accurate, not misleading and do not breach any regulations, laws or intellectual property of any third party. Coles will ensure that all promotional materials published or displayed by or on behalf of Coles with respect to the Promotion are accurate and not misleading.

10.2 The Organisation will:

d) comply with all laws and regulations;

e) and hold all registrations, permits, approvals and licences required by law,

relevant to conducting the Promotion including without limitation, laws relating to OHS and Working With Children Checks for all relevant personnel.

10.3 The Organisation acknowledges that to the extent applicable, Coles is relying on the Organisation to hold all registrations, permits, approvals and licences required by any laws (including, but not limited to, fundraising laws) to enable Coles to conduct the Promotion and the Organisation hereby authorises Coles to conduct the Promotion and/or to act on behalf of the Organisation as its agent in the case of the sale of donation cards or other activities for which Coles acts as agent of the Organisation.

10.4 Without limiting the requirements of clause 9.3, the Organisation shall comply with the requirements of all laws (including but not limited to fundraising laws) relating to the Promotion including keeping such records and bank accounts as are required by such laws, and (if applicable), notifying the appropriate authority of Coles’ involvement with the Promotion.

11 TERM AND TERMINATION

11.1 A party may terminate this Agreement by notice in writing to the other party if:

a) the other party has failed to rectify a material breach of this Agreement (if capable of remedy) within 14 days of being required to do so; or

b) the other party has a receiver, receiver and manager, administrator, or liquidator appointed, enters into a scheme of arrangement with its creditors or is otherwise unable to pay its debts when they fall due.

11.2 Coles may terminate this Agreement by notice in writing if:

a) the Organisation, its employees, agents or representatives cause or may cause the Organisation’s or Coles’ reputation to be negatively impacted or brought into disrepute or controversy and Coles acting reasonably forms the view that continued association with the Organisation would be detrimental to Coles’ reputation or business; or

b) the Organisation does not approve Coles’ use of the Organisation’s logos, trade marks and names which is required by the Key Terms in order for Coles to undertake the Promotion as planned, locked in or represented.

11.3 Coles may terminate this Agreement if the product is no longer ranged by providing the Organisation with one (1) month’s written notice.

11.4 Termination of this Agreement for any reason shall be without prejudice to the rights and obligations of each party accrued up to and including the date of termination.

11.5 If Coles terminates this Agreement under clauses 10.1 or 10.2:

a) the Organisation must return to Coles all or any part of the Funding Amount paid by Coles in advance of a specific Activity for which the Funding Amount was paid should the Activity have not yet taken place; and

b) Coles may elect, but will not be obliged, to pay any Funding Amount which is due after the termination date.

11.6 If the Organisation spends any part of the Funding Amount otherwise than in accordance with the requirements of this Agreement, the Organisation must refund such part of the Funding Amount to Coles upon demand.

12 CONFIDENTIALITY

12.1 Each party will keep confidential the Confidential Information of the other party (as defined in clause 11.2).

12.2 Confidential information in relation to a party includes (but is not limited to), all information of a confidential nature relating to that party, including all financial, technological, strategic or other information concerning that party’s business, products, services, systems, procedures and records (in whatever format) and its relationships with customers and suppliers.

12.3 The commercial terms of this Agreement are confidential to the parties unless agreed otherwise, however this will not prevent Coles or the Organisation disclosing (with the other party’s consent) the existence of the Promotion, the quantum of the Funding Amount and the outcome of the Promotion conducted.

12.4 The Organisation may use the Confidential Information of Coles only to the extent necessary to carry out the Promotion.

13 RISK, INSURANCE AND INDEMNITIES

13.1 The Organisation acknowledges and agrees that it operates at its own risk in performing the Promotion and its obligations under this Agreement, and the Organisation must ensure that it has appropriate insurance policies in place against loss or injury which may result in connection with the performance of the Promotion and its obligations under this Agreement.

13.2 The Organisation must:

a) put in place and keep current public liability insurance for an amount not less than $20 million for death, personal injury or property damage occasioned to any person in respect of the Promotion; and

b) if Coles requests, provide evidence of the insurance required in clause 12.2(a), by providing Coles with a Certificate of Currency on the commencement of this Agreement.

13.3 The Organisation must indemnify Coles from and against all claims, damages, liabilities, losses and expenses that arise from the Organisation’s (including its employees’, agents and representatives’) breach of this Agreement, negligence, or wilful misconduct.

13.4 Except to the extent permitted by law, the total liability of Coles to the Organisation in connection with this Agreement whether arising out of breach of contract, negligence or otherwise shall not exceed the Funding Amount.

14 DISPUTE RESOLUTION

14.1 Each party must follow the procedures in this clause 13 before initiating court proceedings (except for urgent injunctive or declaratory relief).

14.2 The parties agree to meet in good faith to discuss, and attempt resolution of, any disputes concerning this Agreement, the Promotion (Dispute).

14.3 If a Dispute cannot be resolved under clause 13.2, each party’s most senior manager or officer (or that person’s authorised nominee) must meet in good faith to discuss, and attempt resolution of the Dispute.

14.4 If a Dispute cannot be promptly resolved in accordance with clause 13.3:

a) the party claiming that a dispute has arisen must give written notice to the other party indicating the nature of the dispute (Dispute Notice);

b) the parties will, within 21 calendar days of the Dispute Notice being issued, agree on a suitable mediator, failing which the parties will seek that the Institute of Arbitrators and Mediators appoint a mediator (Mediator); and

c) upon the Mediator being appointed, the parties will attend mediation conducted by the Mediator and the parties agree to bear the costs of the Mediator in equal parts.

14.5 The mediation must occur as soon as reasonably practicable, but no later than 28 calendar days after the date of the Mediator being appointed.

14.6 If, within 21 calendar days after completion of the mediation, the parties are unable to resolve the Dispute, the parties may take whatever action they consider necessary.

14.7 The parties agree to notify each other of any complaints from the public or grievances from personnel in connection with any of the Promotion or any other activities under this Agreement within two (2) calendar days of such written complaint being received. The parties will discuss such complaints or grievances in good faith and, if appropriate, seek to resolve them through the dispute resolution process described in clauses 13.2 to 13.6.

15 ASSIGNMENT

The Organisation may only assign any rights or obligations under this Agreement with the prior written consent Coles, which shall not be unreasonably withheld.

16 AMENDMENT

This Agreement may only be amended in writing executed by each party.

17 NO WAIVER

A failure to exercise or a delay in exercising any right, power or remedy under this Agreement will not operate as a waiver.

18 RELATIONSHIP OF PARTIES

18.1 The parties are independent contractors. Nothing in this Agreement shall be construed as establishing an employer/employee relationship, partnership or joint venture.

18.2 Coles may require that this Agreement extends to Coles businesses owned or controlled by a Coles related body corporate (Coles Group company). In this case, Coles holds the benefit of this Agreement on trust for that Coles Group company and enters into this Agreement as agent for that Coles Group company for the sole purpose of enabling it to benefit from this Agreement. Nothing in this Agreement imposes any obligation on a Coles Group company and any commitment by Coles to pay a Funding Amount is payable only by Coles.

19 NOTICES

Notices under this Agreement may be delivered or sent by post or email to the addresses listed at the start of this Agreement and will be deemed to be delivered in the ordinary course of delivery of notices in that form.

20 GOVERNING LAW

This Agreement is governed by the laws of the State of Victoria, Australia. The parties submit to the exclusive jurisdiction of the courts of Victoria.

21 ENTIRE AGREEMENT

This Agreement contains the entire agreement between the parties on the subject matter and supersedes any prior understanding or agreement between the parties unless the parties agree in writing that any prior agreement or understanding forms part of this agreement.

22 SURVIVAL

Any obligations in this Agreement which by their nature are or specifically stated to be continuing, will survive termination or expiration of this Agreement.

23 PRIVACY

If the Organisation is provided with or has access to personal information (as defined in the Privacy Act 1988 (Cth)) in connection with the Activities, the Organisation must:

a) comply with the Privacy Act;

b) use or collect the personal information for the sole purpose of performing the Activities;

c) protect the personal information from misuse and loss and from unauthorised access, modification or disclosure; and

d) notify Coles in writing immediately (and no later than 24 hours) after becoming aware of an actual or suspected data breach (as defined in the Privacy Act) and comply with any directions issued by Coles in connection with the data breach.

24 COUNTERPARTS

This Agreement may be signed in any number of counterparts. All counterparts, taken together, constitute one instrument.

25 ANTI BRIBERY

The Organisation must:

a) at all times comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and improper payments including but not limited to the Criminal Code Act 1995 (Cth) (Australia), the Foreign Corrupt Practices Act 1977 (United States), and the Bribery Act 2010 (United Kingdom) (Relevant Requirements);

b) not give or offer or promise to give, receive, or agree to accept, any payment, gift or other benefit or advantage which violates a Relevant Requirement;

c) have and maintain in place throughout the term of this Agreement its own policies and procedures, including adequate procedures under the Relevant Requirements, to ensure compliance with the Relevant Requirements, and will enforce them where appropriate;

d) not prepare, approve or execute any contract or other document or make any record in connection with this Agreement that the Supplier knows, or ought to reasonably know, is false, inaccurate or misleading;

e) promptly report to Coles any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of this Agreement which will or may be in breach of the Relevant Requirements; and

f) procure, and shall be responsible for, the observance and performance of the Relevant Requirements by all persons performing services or providing goods in connection with this Agreement on behalf of the Supplier or under its supervision or control.