1. Agreement to Terms and Conditions

1. These Terms and Conditions (Terms or Agreement) are legally binding and apply to all product development services provided by E-XD Pty Ltd (ABN 51 627 664 162) trading as Atelier (Supplier, Atelier, us, we, our) to you (Customer, you, your).
2. By placing an order for the development of a product via the Platform you are agreeing to be bound by these Terms.

2. Defined terms and interpretation

2.1 Defined terms

In these Terms:

• Address for Notices means for the Supplier, Level 1, 95 Riley Street Darlinghurst NSW 2010 or such other address as Supplier notifies in writing from time to time, and for the Customer, the Customer’s address as provided by the Customer on the page of the Platform headed “Get ready to start developing your dream product!:)”.
• Approved Formula or Approved Formulation means a formula approved by the Customer in accordance with clause 6.1.
• Business Day means a day other than a Saturday, Sunday or public holiday in Sydney, Australia or Adelaide, Australia.
• Commencement Date means the date the Customer pays the Development Fee.
• Confidential Information of a party (Disclosing Party) means all information (whether or not in a material form):
1. treated by the Disclosing Party as confidential; and
2. disclosed by the Disclosing Party to the other party (Receiving Party) pursuant to this Agreement, or of which the Receiving Party becomes aware pursuant to this Agreement, but excluding information that:
3. is public knowledge (otherwise than as a result of a breach of confidentiality by the Receiving Party or any of its permitted disclosees); and
4. the Receiving Party creates (whether alone or jointly with any third person) independently of the Disclosing Party (otherwise than as a result of a breach of confidentiality by the Receiving Party or any of its permitted discloses or the third person).
• Customer means the corporation, individual or other legal entity which is provided by the Customer via the Platform New Product Development Fee page.
• Customer Background IP means all Intellectual Property Rights in Materials or information made available by Customer to Supplier for performing the Services including without limitation the Customer’s trademarks.Customer Information means any information and materials specified to be provided by the Customer as agreed by Customer and Supplier via the Platform or in writing.Customer Ingredients means the ingredients specified by Customer via the Platform. Customer Inputs means the inputs specified by Customer via the Platform.
• DAP means ‘Delivered At Place’ and has the same meaning as contemplated by that term in the current edition (at time of Agreement) of the publication by the International Chamber of Commerce entitled “International Rules for the Interpretation of the Trade Terms”.
• Deliverables means Formulations, Formulation samples, Formulation Information, invoice for development fee, other test data reports and associated invoices if requested and agreed upon during the development phase by Customer and Supplier and any other information requested by Customer and agreed upon by Customer and Supplier.
• Development Fee means the fee for the development of products by the Supplier for the Customer.
• Formulations or Formula means the content and composition of formulas that Supplier develops for Customer under the terms of this Agreement.
• Formulation Information is the INCI ingredient listing for Approved Formulations developed by Supplier for Customer under this Agreement. All rights to Formulation Information, excluding Usage Rights, belong to Supplier. GMP Standards means the Good Manufacturing Practice standards.
• Intellectual Property Rights means all intellectual property rights (whether or not such rights are capable of registration) including copyright, trademarks and trademark applications, designs and design applications, patents and patent applications and the right to have confidential information (including trade secrets and Know How) kept confidential.
• Know How means all information not in the public domain including drawings, designs, diagrams, computer programs, data, formulae, specifications, procedures for experiments and tests, results of experiments and tests, techniques and information.
• Materials includes documents, papers, models, drawings, materials, transcripts, computer software and programs.Modern Slavery means conduct defined as modern slavery in the Modern Slavery Act 2018 (Cth), and/or any other exploitation of a worker, human trafficking, slavery, servitude, any form of forced or compulsory labour, child labour, debt bondage or deceptive recruiting for labour or services, or similar types of conduct.
• Modern Slavery Laws means the Modern Slavery Act 2018 (Cth), and/or any other law, statute or regulation that prohibits Modern Slavery and is applicable or otherwise in force in Australia.
• Personnel means the employees, officers, agents, consultants or sub-contractors employed or engaged by Supplier to provide the Services.
• Platform means the Supplier’s online platform for the development, and ordering of products.
• Products means the products the Customer has engaged the Supplier to develop under these Terms.
• Raw Materials means the raw materials used in the course of the Supplier providing the Services.
• Retailer Standards means retailer specific requirements for the formulation of products in order for them to be marketed in specific retailer categories, including by way of example, Sephora’s “clean at Sephora” category.
• Sample Units means the sample units of the Formula submitted by Supplier to Customer for approval of the Formula.
• Services means the development of Products by the Supplier for the Customer under the terms of this Agreement including product formulation, packaging design and procurement of Raw Materials and packaging required for Sample Units.
• Specifications means the specifications selected by the Customer via the Platform for the development of Products including but not limited to, selected and excluded ingredients, formula appearance and fragrance, Target Countries, Retailer Standards, primary packaging characteristics and other formula and packaging characteristics.
• Supplier Background IP means all Intellectual Property Rights in any Materials or information used by Supplier or any Personnel in performing the Services, other than:
1. Customer Background IP; and
2. the Intellectual Property Rights in the Deliverables and other Materials created by Supplier or any Personnel in performing the Services.
• Target Countries means the countries in which the Customer intends to market and sell the products as selected by the Customer on the Platform.
• Term means the period commencing on the Commencement Date and continuing until such time as Formula Approval occurs, or the services provided by the Supplier to the Customer under the terms of this agreement are complete, if later.
• Usage Rights means exclusive rights licensed from Supplier to Customer for the purpose of the use of Formulation Information for the manufacture of Products by the Supplier or its agents for the Customer and for the sale of these Products by Customer or any nominee of the Customer.

2.2 Interpretation

In this Agreement unless the context otherwise requires:

1. words importing the singular include the plural and vice versa;
2. other parts of speech and grammatical forms of a word or phrase defined in the Agreement have a corresponding meaning;
3. an expression importing a natural person includes a company, partnership, joint venture, association, corporation or other body corporate and a government agency;
4. a reference to a clause, annexure or schedule is a reference to a clause, annexure or schedule of this Agreement;
5. a reference to a law includes a constitutional provision, treaty, decree convention, statute regulation, ordinance by-law, judgment, rule of common law or equity or a rule of an applicable stock exchange and is a reference to that law as amended, consolidated or replaced;
6. a reference to a document includes all amendments or supplements to that document, or replacements or novations of it;
7. a reference to a party means a party to this Agreement;
8. headings are for convenience only and do not affect the interpretation of this Agreement;
9. this Agreement may not be construed adversely to a party on the basis that such party prepared it; and
10. the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions.

3. Services

3.1 Services

Supplier must:

1. provide the Services to the Customer during the Term in accordance with these terms; and
2. subject to clause 8.1(a), ensure that the Services comply with, and are provided in accordance with the Specifications, GMP Standards, and applicable laws, regulations and standards.
3. as soon as reasonably practicable, notify Customer of any matters that may materially affect the provision of the Services in accordance with this Agreement.

3.2 Unsatisfactory Services

If Supplier fails to provide the Services in accordance with this clause 3, Customer may request that Supplier re-supply those Services that failed to comply with this clause 3 at no cost to Customer, in which case Supplier must comply with that request within such time as is reasonably notified by Customer.

4. Payment

1. The Customer shall be notified of the Development Fee via the Platform.
2. Payment of the Development Fee is to be made via the Platform, or such other payment method as is agreed between the parties from time to time.
3. Customer will be not entitled to set off any amounts which the Supplier owes to it against any amount which Customer owes to the Supplier.
4. Supplier will only commence the Services after the Development Fee has been paid in full.

5. Formula Development

5.1 Costs

1. The costs associated with the development and testing of the Formula are included in the Development Fee. If additional testing is requested by the Customer after payment of the Development Fee has been made additional costs may apply.
2. Supplier is responsible for the procurement, cost and stability testing of all Raw Materials and the procurement and cost of all Packaging utilised in relation to the Services provided under this Agreement.

5.2 Specifications and Customer Information

1. Customer shall provide the Specifications and Customer Information to Supplier via the Platform.
2. Subject to clause 8.1(a) the Supplier will develop the products in accordance with the Specifications.

5.3 Packaging and Transport Costs

1. Supplier will be responsible for the packaging and transportation costs incurred in providing the Sample Units.

6. Formula Approval

6.1 Approval Process

1. Customer will order the Sample Units via the Platform;
2. Supplier will send the Sample Units to the Customer for approval; and
3. Customer will, after receiving the Sample Units, approve the Formula via the Formula Approval page of the Platform.

7. Alteration of Approved Formula by Customer

If Customer alters a Formula at any time after Formula Approval (“Altered Formula”) any warranties that were provided by Supplier in relation to the approved Formula will be void in relation to the Altered Formula and Supplier shall bear no liability whatsoever in relation to the Altered Formula.

8. Product Compliance and Production Costs

1. Whilst the Supplier will endeavour to formulate to achieve compliance with regulatory and legal requirements of Target Countries and Retailer Standards, the Customer is solely responsible for the compliance of the Formula, artwork and information contained on packaging to all applicable regulatory and legal any Target Country, or other country in which the Products are to be marketed and sold, and to any applicable Retailer Standards. Supplier shall not be liable in respect of any failure of any Products to comply with the laws or regulations of any country, including without limitation the Target Countries, or to any Retailer Standards.
2. The estimated cost to manufacture and produce finished Product is an estimate only and is subject to change. Supplier is shall bear no liability in relation to the accuracy of the pricing estimated by the Platform prior to placing an order for the Products.

9. Usage Rights

The Usage Rights shall be licenced by Supplier to Customer from the date of Formula Approval. Supplier acknowledges that the Usage Rights are exclusive to Customer and that usage rights or any other rights in the Formula may not be licenced, sold, gifted or otherwise provided by Supplier to any other party without Customer’s prior written approval, or by Customer to any other party without Supplier’s prior written approval.

1. The Customer is solely responsible for the legal and regulatory compliance of the Approved Formula, artwork and information contained on the Product’s packaging, including its compliance with any applicable Retailer Standards, and all relevant laws and regulations, including without limitation in the Target Countries.
2. The Supplier shall bear no liability in relation to the legal and regulatory compliance of an Approved Formula. artwork and information contained on the Product’s packaging, including its compliance with any applicable Retailer Standards, and all relevant laws and regulations, including without limitation in the Target Countries.
3. The estimated cost to manufacture and produce finished Product is an estimate only and is subject to change. Supplier shall bear no liability in relation to the accuracy of the pricing estimated via the Platform, prior to the Customer placing an order for the Products.

10. Records and auditing

10.1 Keeping books and records

Supplier must:

1. keep full and proper books and records in sufficient detail to record the Services provided; and
2. retain such books and records for a period of six years after the termination or expiry of this Agreement.

11. Intellectual Property Rights

11.1 Background Intellectual Property Rights

1. Customer grants Supplier a non-exclusive, royalty free, non-transferable licence to use the Customer Background IP during the Term solely for the purpose of providing the Services.
2. Supplier grants Customer a non-exclusive, royalty free, perpetual, irrevocable licence (including the right to grant sub-licences) to use, reproduce, publish, electronically transmit, electronically distribute, adapt, modify or otherwise deal Supplier Background IP to the extent necessary or desirable for the use of, or in connection with, the Formula, Formulation Information, Deliverables and other Materials created by Supplier or any Personnel in performing the Services under the terms of this Agreement.

11.2 Intellectual Property Rights in Deliverables and Materials created in performing the Services

1. Supplier will own the Formula and all other Materials created by Supplier or any Personnel in performing the Services, with effect from the date of their creation.
2. The Usage Rights shall be granted by Supplier to the Customer from the Formula Approval date.
3. With the exception of clauses 8 and 11.1, nothing in this Agreement shall constitute the granting of any intellectual property rights owned by one party to the other party.

12. Confidentiality

12.1 Use and disclosure of Confidential Information

Each party (Receiving Party) must:

1. use Confidential Information of the other party (Disclosing Party) only for the purposes of this Agreement; and
2. keep confidential all Confidential Information of the Disclosing Party except:
1. for disclosures permitted under clause 12.2; or
2. to the extent (if any) the Receiving Party is required by law to disclose any Confidential Information of the Disclosing Party.

12.2 Permitted disclosure

The Receiving Party may disclose Confidential Information of the Disclosing Party to the Disclosing Party’s officers and employees who:

1. have a need to know for the purposes of this Agreement (and only to the extent that each has a need to know); and
2. before disclosure, have been directed to keep all Confidential Information of the Disclosing Party confidential.

12.3 Return of Confidential Information

On termination of this Agreement, the Receiving Party must at its election deliver up to the Disclosing Party (or, at the Disclosing Party’s election, destroy), all Confidential Information of the Disclosing Party, including any copies of the Confidential Information of the Disclosing Party (stored in any medium) which is in its possession or control.

13. Subcontracting

13.1 Subcontracting Supplier:

1. may subcontract the performance of all, or any part, of the Services, or any of its obligations under this Agreement;
2. shall use best endeavours to procure that any subcontractors it engages to perform any of the Services comply with Supplier’s obligations under this Agreement; and
3. remains responsible for the performance of all Services provided under this Agreement and for all costs incurred with respect to its subcontractors.

14. Personnel

Supplier must ensure that all Personnel have appropriate qualifications, experience and capability to provide the Services.

15. Warranties

15.1 Supplier Warranties

Supplier represents and warrants to Customer that:

1. it has full corporate power and lawful authority to execute this Agreement and to perform its obligations under this Agreement;
2. it will at all times act in a lawful manner in the performance of the Services and the conduct of its business and will perform the Services in accordance with this Agreement; and
3. it conducts its business with a high standard of business ethics, a regard for human rights, and in compliance with all applicable laws governing issues such as child labour, wages, benefits, working hours, harassment, health and safety and environment (including packaging recycling and sustainability).

15.2 Customer Warranties

Customer represents and warrants to Supplier that:

1. in the event that the Customer is a corporation, it has full corporate power and lawful authority to execute this Agreement and to perform its obligations under this Agreement; and
2. the use by Supplier of Customer Inputs will not infringe the Intellectual Property Rights of any third party.

16. Termination

16.1 Termination for convenience

1. Either party may terminate this Agreement, without cause, on the provision of 30 days’ prior written notice.
2. If the Supplier terminates pursuant to clause 16.1 (a) the Development Fee will be refunded in full.
3. If the Customer terminates pursuant to clause 16.1(a) the Development Fee will not be refunded. Supplier will use best endeavours to minimise costs between receipt of the termination notice and the date the Customer’s termination notice takes effect.

16.2 Termination for breach or insolvency

Either party may terminate this Agreement or any product development project immediately by notice in writing if:

1. the other party breaches any material provision of these Terms and fails to remedy that breach (if that breach is capable of remedy) within 10 Business Days of receiving a request from the first party to do so; or
2. any of the events in clause 16.3 happens to the other party.

16.3 Notification of events

Each party must notify the other party immediately if:

1. it enters into liquidation or any form of insolvency administration;
2. it has a receiver, receiver and manager, a trustee in bankruptcy, an administrator, a liquidator, a provisional liquidator or other like person appointed to the whole or any part of its assets or business; or
3. having regard to the corporate and legislative structure of the party, any event analogous to any of the events set out in paragraphs (a) and (b) occurs to the party.

16.4 Effect of termination

1. Termination of this Agreement for whatever reason will be without prejudice to any accrued rights or remedies of either party.

17. Indemnity

1. Supplier indemnifies and agrees to keep Customer and their officers, employees, agents, sub-contractors, indemnified from all expenses, costs, losses, damages or claims (including legal costs and expenses on a solicitor and own client basis) incurred by, or brought against, Customer (or any of its officers, employees or agents) by a third party (including any current or former Personnel) in respect of:
   1. any breach of law by Supplier;
   2. any unauthorised use of Intellectual Property;
   3. any unauthorised promise, representation, warranty, act, statement or omission by Supplier or its officers, employees, agents or sub-contractors; and
   4. any:
      1. personal injury to, or death of, any person;
      2. loss of, or damage to, any property; or
      3. loss or damage of any kind, arising in connection with gross negligence or breach of contract by the Supplier, except to the extent that the expense, cost, loss, damages or claim was caused or contributed to by an act or omission of the Customer.
2. Customer indemnifies and agrees to keep Supplier and its officers employees, agents and sub-contractors indemnified from all expenses, costs, losses, damages or claims (including legal costs and expenses on a solicitor and own client basis) incurred by, or brought against, Supplier (or any of its officers, employees or agents) by a third party (including any current or former Personnel) in respect of:
   1. any breach of law by Customer;
   2. any unauthorised use of Intellectual Property;
   3. any unauthorised promise, representation, warranty, act, statement or omission by Customer or your officers, employees, agents or sub-contractors;
   4. any unauthorised modification of the Products; and
   5. any:
      1. personal injury to, or death of, any person;
      2. loss of, or damage to, any property; or
      3. loss or damage of any kind, arising in connection with gross negligence or breach of contract by the Customer, except to the extent that the expense, cost, loss, damages or claim was caused or contributed to by an act or omission of the Supplier.
3. The indemnity in this clause 17 will survive the expiry or termination of this Agreement.

18. Limitation of liability

1. To the fullest extent permitted by law, all terms, conditions, warranties, undertakings, inducements and representations, whether implied, statutory or otherwise, relating to the Services that are not expressly set out in this Agreement are excluded.
2. The terms of this Agreement do not exclude, restrict or modify any liability that cannot be excluded, restricted or modified as between you and us by law. However, where such statutory provisions apply, to the extent permitted by law, our liability will be limited to the re-provision of the Services.
3. To the fullest extent permitted by law, neither party will be liable to the other party for any:
   1. special, punitive or exemplary loss or damage; or
   2. loss of revenue or profits, loss of reputation, loss of opportunity or contract (whether direct or consequential).

19. Force Majeure

1. Force Majeure means any act, occurrence or event not within the reasonable control of the relevant party, including without limitation, fire, flood, lightning, storm and tempest, epidemics, pandemics, strikes, lockouts or other industrial disputes, acts of war, riots, explosion, government restrictions, unavailability of equipment or other causes which are not reasonably within the control of that party.
2. If either party is affected by Force Majeure, it must promptly notify the other party of the nature and extent of the circumstances in question including its expected duration, the obligations it cannot perform as a result thereof and the measures it proposes to take to remedy or abate the Force Majeure.
3. Neither party will be in breach of these Terms or otherwise liable to the other party for any delay in performance or the non-performance of any of its obligations under these Terms, to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other party and the time for performance of that obligation will be extended accordingly.
4. The affected party must use all reasonable endeavours to remove the Force Majeure as quickly as possible and resume performance of the affected obligations.
5. If the failure or delay by the affected party to carry out the affected obligations continues for more than 60 days, then any other party may terminate this document immediately by giving notice to each other party, without prejudice to any accrued rights or remedies of any party.

20. Insurance

20.1 Insurance

Supplier must:

1. take out and maintain at their own cost and expense:
   1. product liability insurance to a value not less than $20 million; and
   2. public liability insurance to a value not less than $20 million; and
   3. product recall insurance to a value of not less than $2 million; and
2. comply with all of their legal obligations in relation to worker’s compensation insurance.

20.2 Conditions applying to insurance

Supplier will produce to the Customer on request a certificate of currency in respect of any insurance required to be obtained under clause 20.1.

21. Modern Slavery

1. The Supplier must:
   1. at all times comply with its obligations under Modern Slavery Laws;
   2. put in place reasonable processes, procedures and compliance systems to ensure that it can comply with its obligations under this clause 21(a)(i), and to prevent Modern Slavery occurring in its operations and supply chain;
   3. take all reasonable actions and investigations to continue to comply with its obligations under this clause 21, and not do, or omit to do, anything that would cause Purchaser to contravene any Modern Slavery Laws;
   4. notify Customer promptly upon becoming aware of any actual or potential breach of any Modern Slavery Laws by Supplier (or its subcontractors) in connection with the Services provided under this Agreement; and
   5. provide such information as may be reasonably required by Customer, and comply with reasonable requests and directions given by Customer for the purposes of enabling Customer to comply with its obligations under Modern Slavery Laws (if any) and to assess its supply chain risk.

22. Notice

22.1 Service of notices

A notice, demand, consent, approval or communication under this Agreement (Notice) must be:

1. in writing, in English and signed by a person duly authorised by the sender; and
2. hand delivered or sent by hand, prepaid post or email to the recipient’s Address for Notices specified in this Agreement, as varied by any Notice given by the recipient to the sender.

22.2 Time of service

A Notice given under clause 22.1 is taken to be received:

1. if hand delivered, on delivery;
2. if sent by prepaid post, on the second Business Day after the date of posting; and
3. if sent by email, at the time shown in the delivery confirmation report received by the sender at the time that the email was delivered to the addressee, unless the sender receives a delivery failure notification indicating that the email has not been delivered to the addressee, but if the delivery, receipt or transmission is not on a Business Day, or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.

23. Miscellaneous

23.1 Governing law

This Agreement is governed by the laws of the state of New South Wales, Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of the state of New South Wales, Australia and courts entitled to hear appeals from those courts.

23.2 Alterations

This Agreement, including its schedules, may only be altered in writing signed by both parties.

23.3 Assignment

Neither party may assign or attempt to assign this Agreement or any right under this Agreement without the prior written consent of the other party.

23.4 Entire agreement

This Agreement, including its schedules, and information submitted by the Customer to the Supplier via the Platform, constitutes the entire agreement between the parties as to its subject matter and supersedes all prior representations and agreements in connection with that subject matter.

23.5 Further action

Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to this Agreement and any transaction contemplated by it.

23.6 Relationship between the parties

Neither party:

1. is in any way an agent, employee or partner of the other party for any purpose or has any right to hold itself out as such; and
2. may make any promise, warranty or representation or execute any contract or otherwise deal on behalf of the other party.

23.7 Severability

Part or all of any provision of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining provisions of this Agreement continue in force.

23.8 No waiver

Waiver of any provision of or right under this Agreement must be in writing signed by the party entitled to the benefit of that provision or right and is effective only to the extent set out in any written waiver.

23.9 Survival

1. Any term by its nature intended to survive the expiry or termination of this Agreement survives the expiry or termination of this Agreement, including clauses 3.2, 8, 10, 11, 12, 15, 17, 18, 22 and this clause 23.
2. All representations and warranties in this Agreement:
   1. will survive the execution and delivery of this Agreement;
   2. will remain in full force and effect for the term of this Agreement:
   3. are and will be given with the intent that liability under the representations and warranties will not be confined to breaches discovered prior to the date of this Agreement.
3. Each indemnity in this Agreement:
   1. is a continuing obligation;
   2. constitutes a separate and independent obligation of the party giving the indemnity from its other obligations under this Agreement; and
   3. will survive the expiry or termination of this Agreement.