Primalista Licence Agreement

INTRODUCTION

It is very important that you read this document carefully before you accept it. This Licence Agreement sets out essential information that you need to know before entering into a Primalista Licencee Relationship. By accepting this Licence Agreement, you are entering into a legally binding contract.

Please make sure that you understand your rights and responsibilities under this Agreement and seek independent legal and financial advice if anything is unclear. In this document, you are referred to as the Primalista, and by accepting this document, you agree that all of the rights and obligations of a Primalista apply to you.

 

(a) The parties

This Licence Agreement is between:

Primal Alternative Pty Ltd “Primal Alternative”
ACN: 614 693 202
Address for Service: PO Box 717, Denmark, WA, 6333
Email for Correspondence: info@primalalternative.com
Director: Helen Marshall

AND

You, the “Primalista” (licencee). Your details are the details you provide when you apply, purchase, or set up payment for the Primalista Licence Membership (including via Kajabi checkout, direct debit providers such as Ezidebit, invoice payment, or any other method approved by Primal Alternative), and those details form part of this Agreement.

 

(b) Background

1.  Primal Alternative has created and owns all intellectual and other property rights in the Primal Alternative lifestyle brand, the associated range of Primal Alternative Products and the resources developed for Primalistas (Resources), which include:
   a. Recipes for Primal Alternative Products, and
   b. Other resources, trade secrets and knowhow designed to assist Primalistas in producing Primal Alternative Products and selling them through stockists and other distribution outlets.
2.  Primalistas pay a monthly membership fee which grants them a non-exclusive, non-revocable right to access and use the Licensed Resources and Primal Alternative’s branding for the sole purpose of creating Primal Alternative Products for sale in accordance with this Agreement.
   a. Non-exclusive means that there can be more than one Primalista. Primal Alternative is creating a global network of Primalistas. As a member of the Primalista community, you will have access to a collaborative network of producers of Primal Alternative Products.
   b. Non-revocable means that Primal Alternative will not cancel or take away your licence unless there is a problem covered by this Agreement that cannot be resolved, or if you wish to cancel your licence.
   c. You also receive ongoing access to the exclusive Primalista area of the Primal Alternative Website.
3.  You have requested that Primal Alternative grant you a licence to be a Primalista, and Primal Alternative has agreed to grant this licence to you on the following terms and conditions, which you accept by accepting this Agreement electronically.
4.  We are here to serve our communities by delivering quality, convenient, nutrient dense Primal Alternatives to conventional staples. We do not need to become educators about the Primal Lifestyle or feel we need to be role models.
5.  We acknowledge that producing and selling Primal Alternative Products involves manual labour, sales and marketing skills, and other general business skills.
6.  Primal Alternative may enter into exclusive Licence Agreements with other brands (Collaborative Brands) to expand the Primal Alternative Brand Awareness and sales opportunities.
   a. You may choose to accept a sub-licence to produce and sell products using a Collaborative Brand’s recipes under packaging authorised by Primal Alternative and the Collaborative Brand.
   b. Acceptance of any sub-licence is voluntary and creates additional obligations between you and the Collaborative Brand which are set out in the Collaborative Brand’s Royalty Agreement.
   c. A list of Collaborative Brands and their associated Royalty Agreements is available in the membership area of Primal Alternative’s website.

 

(c) Confidentiality

The contents of this Licence Agreement are private and confidential and may not be disclosed to any third party without Primal Alternative’s written consent, other than for the purposes of obtaining legal or financial advice.

 

1. THE PRIMAL ALTERNATIVE COOLING OFF PERIOD

(a) 7 day Cooling Off Period

(i) When you join Primal Alternative you’ll have a full 7 days to try the materials and start setting up your business.
(ii) If at any point during those first 7 days you decide being a Primalista is not for you, simply email info@primalalternative.com and we’ll provide you with a full refund - no questions asked.

(b) Conditions of Early Termination

(i) If you request early termination in accordance with clause 1:
a. You will receive a refund of all money paid to Primal Alternative.
b. It is an essential condition of this agreement that you understand that after the 7-day Cooling-Off Period has passed, no refunds apply except as required by the Australian Consumer Law. You agree that 7 days is a reasonable period in which you can ensure that the Primalista licence is appropriate to your business.

(ii) If you choose to terminate your licence, you remain bound by the provisions of this Agreement intended to survive termination, in particular clauses:
a. 7(g) Injunctions;
b. 7(h) Consequences of Termination;
c. 8 Restrictive Covenant;
d. 10 Intellectual Property; and
e. 12 Jurisdiction and Dispute Resolution.

(iii) Following the cooling off period, this Agreement continues from month to month until terminated. Provisions relating to termination are found in clause 7.

 

2. TERMS OF THE LICENCE AGREEMENT

(a) Fees

(i) Primal Alternative trades in Australian dollars (AUD) and United States dollars (USD). Fees under this Agreement are payable in either AUD or USD, depending on the currency you select at checkout or as otherwise agreed in writing by Primal Alternative (“Applicable Currency”).

(ii) To become and remain a Primalista, you agree to pay Primal Alternative the fees set out at the end of this Agreement (the “Fees”). The Fees are either:
a. the monthly membership fee (the “Membership Fee”), being $350 AUD per month for the first 24 months then the loyalty membership rate of $130 AUD per month ongoing, or $250 USD per month for the first 24 months then the loyalty membership rate of $90 USD per month ongoing; or
b. the upfront licence fee of $5,497 AUD or $3,850 USD, plus the ongoing Membership Fee at the loyalty membership rate (being $130 AUD per month or $90 USD per month) for as long as you remain licensed.

(iii) You understand and agree that:
a. The Fees are consideration for the access to Primal Alternative’s Intellectual Property, Recipes and Resources that you receive and continue to receive while you are a Primalista.
b. Primal Alternative does not guarantee that you will make enough profit to cover the Fees, as this is dependent on your commitment, personal factors and circumstances when producing and selling Primal Alternative products.
c. The Membership Fee will be withdrawn by automatic direct debit from your nominated account.
d. All amounts paid are nonrefundable for change of mind after the 7-day Cooling-Off Period, except as required by the Australian Consumer Law.

(b) Taking a Baking Break

(i) Short Break: You can choose to take a break from production for circumstances such as (but not limited to) ill health, rest and recuperation, family obligations, maternity leave or moving to a new house.
a. Please notify Primal Alternative in writing via email how long you intend on having a break.
b. During this period, it is permissible for your food business registration and insurance certificates to lapse but you must continue to pay your Monthly Membership Fee to keep your Licence valid, unless Primal Alternative has agreed to suspend your Membership Fee for up to three months.
c. You will need to secure relevant food business registration and adequate insurance once you come off your break and before you start producing again.

(ii) Extended Leave: You can apply for extended leave without losing your Primal Alternative licence if you have a genuine intention to start baking as a Primalista again, but due to unforeseen circumstances, cannot produce at the moment. Extended Leave may be approved for a period agreed by Primal Alternative in writing.
a. Extended Leave is granted at Primal Alternative’s sole discretion, Primalistas are required to request Extended Leave in writing via email to Primal Alternative info@primalalternative.com.
b. To qualify for Extended Leave, you must have been licensed and current on your Membership Fee for at least 24 months, or have paid the upfront licence fee in full.
c. During your Extended Leave, we will keep your business on the Primalista map, listing you as being ‘On a Baking Break’ for a period of up to 6 months, adding your listing to the Primalista map once you start baking again.
d. Your Primalista web access will be paused until you notify us that you are ready to return, but your Email and Primalista Facebook Group access will remain active.
e. You can opt out of Extended Leave and terminate your Licence at any time by giving Primal Alternative 7 days written notice via email.
f. While on Extended Leave, you agree to pay an administrative fee of $39 per month. In return, we will keep your Licence active, provide you with Primalista Facebook Group access to keep you updated on Primal Alternative developments. The Extended Leave Fee will be withdrawn by automatic direct debit from your nominated account. It’s a condition of accepting Extended Leave that you set up and continue to pay the monthly $39 fee. Failure to do so will result in your Licence being revoked. Extended Leave does not pause or reduce any overdue Membership Fees that accrued prior to Extended Leave commencing.
g. When you are ready to start producing again, just notify Primal Alternative via email. There are no additional fees to restart your Licence, you just commence paying full monthly membership again.

(c) Primal Alternative Sub-licences and Commission

(i) You do not have the right to grant a sub-licence or authorise any third party to produce or sell Primal Alternative Products. The licence and rights granted under this Agreement and any Collaborative Brand sub-licence are personal and exclusive to you.

(ii) Only Primalistas are licensed to produce or sell Primal Alternative Products. This means that:
a. if you are no longer paying your Membership Fee, you are not a current Primalista.
b. if you are not a current Primalista, you may only use Primal Alternative’s Recipes and Resources for personal use, and not commercially.

(iii) Only Primalistas who have entered into a Royalty Agreement with a Collaborative Brand are permitted to produce or sell that Collaborative Brand’s Products.

(iv) You agree to refer any person interested in becoming a Primalista directly to Primal Alternative.
a. You will receive $250 (“Commission”) in respect of each new Primalista Licence Agreement entered into as a result of a referral by you under this clause.
b. Commission is inclusive of GST.
c. Commission will be paid to current Primalistas within 120 days of the new Primalista joining Primal Alternative.
d. Please note, you will not be paid Commission if you are not a current Primalista. Commission will also not be paid where the new Primalista has exercised their right of early termination under clause 1.

(d) Territory - non-exclusive Global Licence

(i) In exchange for payment of your Fees, you are permitted to produce and sell Primal Alternative Products (and products of Collaborative Brands, if you are granted a sub-licence by a Collaborative Brand) anywhere in the world.

(ii) You agree and understand that this is not an exclusive licence and that Primal Alternative and other Primalistas may also produce and sell Primal Alternative Products and products of Collaborative Brands anywhere in the world.

(iii) You agree to not include location in your business name as this may lead to territorial competition. Your suggested business name is Primal Alternative by [first name] and not Primal Alternative [location].

(iv) To maintain goodwill with retailers and uphold brand consistency, Primalistas are asked to communicate using the Primalista Target Spreadsheet so Primal Alternative can guide new Potential Primalistas and help avoid multiple Primalistas approaching the same stockist. Primalistas must not approach an existing Primal Alternative stockist or market and must source new stockists or markets.

(v) Primalista culture is one of communication, collaboration and consistency. We are a supportive network. We understand that there is greater potential to increase the number of Primal Alternative stockists for our mutual benefit if we work towards non-competition between Primalistas.

(vi) Primal Alternative may remove your right to service a specified stockist. This will only be done at the stockist’s explicit request, and if Primal Alternative decides, after investigation, that this action is necessary to preserve the goodwill of the stockist towards Primal Alternative. An alternative Primalista will be chosen at Primal Alternative’s sole discretion, based on the closest Primalista to the stockist who has capacity to service the stockist’s needs.

 

3. RESPONSIBILITIES OF PRIMALISTAS

(a) Pre-conditions

(i) You acknowledge that before you can commence producing Primal Alternative products for sale, you must:
a. take out appropriate insurance coverage and provide proof of this coverage to Primal Alternative,
b. apply for and obtain the necessary approvals to operate a domestic kitchen facility for business purposes from residential or business premises, including applying for food business registration under the relevant Food Act or equivalent legislation, and provide proof of this registration to Primal Alternative,
c. at your own cost, promptly make application and do all things reasonably required to obtain such approvals, and
d. complete any food handling training program required by the relevant regulatory body at your own cost.

(ii) You understand and agree that:
a. It is common for regulatory bodies to have questions and seek further information about the Primal Alternative products and so, you may need to provide further information once your registration process commences assessment. Your food business registration may even be initially rejected. Your food business registration application may be rejected if the relevant regulatory body finds that your kitchen is not compliant with the relevant Food Act or equivalent legislation.
b. It is your responsibility to ensure you are familiar with the requirements for operating a food business from a domestic kitchen in the Food Act or equivalent legislation of your State or Territory before accepting this Agreement. This may involve obtaining Landlord’s approval to operate a business from a rental property.
c. You may choose to make changes and modifications to your kitchen facilities in order to obtain the necessary approvals and registrations and meet Food Act requirements. You are solely responsible for the costs of any such modifications.
d. The decision to grant the appropriate approvals and food business registration is solely within the control and discretion of the relevant regulatory bodies and Primal Alternative does not guarantee or warrant that the relevant regulatory bodies will provide such approvals to you.
e. Primal Alternative and the Primalista Community are here to support you with your Food Business Registration by providing all Primalistas with a Food Safety Program and by helping you with answers to questions from your regulatory body. The Food Safety Program contains Food Handling and Safety Procedures, Shelf-Life Investigation Lab Test Reports and Analysis by Independent Food Technologists. The Food Safety Program is part of the Resources you receive via the Primalista Website when you become a Primalista.
f. This Agreement terminates under clause 7(c) (i) and no refund is payable if you fail to obtain the necessary approvals and licences within 52 weeks of the date you accept this Agreement. Under these circumstances, you retain the benefit of the Recipes and Resources for your personal use but fail to meet the pre-conditions required to produce Primal Alternative Products for sale as a licensed Primalista.

(b) Primalista Obligations

As a Primalista, you agree to:
(i) consider Primal Alternative’s Pricing Guidelines to maintain consistency across the brand, while still allowing you to make commercial decisions for your own business.
(ii) follow Primal Alternative’s recipes without modification to maintain product quality and brand consistency, unless otherwise agreed in writing.
(iii) preserve the brand integrity of Primal Alternative by ensuring that all Primal Alternative Products produced for sale are packaged in accordance with Primal Alternative’s Packaging Guidelines, including:
a. using the professionally produced Primal Alternative Labels which are designed for your jurisdiction (FSANZ, FDA, or UK requirements), having the Primal Alternative labels professionally printed, and
b. only using the Primal Alternative Logo and Labels on Primal Alternative Products,
c. All packaging and labelling materials must comply with Primal Alternative’s Packaging Guidelines. You are responsible for ensuring all labels are accurate and compliant with relevant laws in your jurisdiction.
(iv) commit to keeping the Recipes and Resources confidential and using the training videos for your own private viewing,
(v) not make, market or sell any products that are similar to Primal Alternative Products, without express written permission from Primal Alternative,
(vi) give full and unconditional permission for Primal Alternative to use photographs which you have uploaded to Facebook or Instagram for the purposes of marketing and promotion of Primal Alternative Products, without requiring payment or acknowledgement of your authorship,
(vii) take full responsibility for your personal business development and the management of your business.

 

4. PRIMAL ALTERNATIVE’S RESPONSIBILITIES

(a) Primal Alternative Recipes and Resources

Primal Alternative undertakes to make the following Intellectual Property and trade secrets available for your use:
(i) recipes and instructions on how to make Primal Alternative Products,
(ii) pricing guidelines including:
a. cost to produce,
b. wholesale price,
c. market/direct sale price,
d. recommended Retail Price, and
e. suggested profit margins for each,
f. noting that any pricing guidelines are provided solely to assist Primalistas in maintaining brand consistency and do not constitute a requirement or direction about how you must run your business.
(iii) label templates including:
a. nutrition information (including a Nutrition Information Panel or Nutrition Facts panel, as required for your jurisdiction) compiled using the appropriate method and requirements for your jurisdiction (FSANZ, FDA, or UK requirements),
b. authentic GS1 barcodes,
c. ingredients,
d. allergy statements,
e. possible contaminants disclosure,
f. minimum net weight,
g. serving suggestions,
h. Primal Alternative logo, and
i. space to add the Primalista’s business contact information on the label,
(iv) professional Primal Alternative business card, flyer, Stockist Brochure, Customer Brochure, postcards, Generic Banners: horizontal, vertical and pop up templates for you to add your business details;
(v) suggestions on where to source ingredients,
(vi) suggestions on where to source equipment and packaging,
(vii) advice and support on how to register as a food business including the Primal Alternative Food Safety Program,
(viii) advice on appropriate insurance cover,
(ix) advice on how to set up a market stall,
(x) basic sales, marketing and customer service coaching,
(xi) a stockist agreement, to assist you in managing your relationship with local businesses that you approach to stock the Primal Alternative Products you produce, and
(xii) videos of Primal Alternative Products being produced and packaged in a home kitchen with advice and helpful tips on how to streamline the production process.

(b) Obligations of Primal Alternative

Primal Alternative agrees to:
(i) develop brand awareness of the Primal Alternative Brand via various media,
(ii) grant all Primalistas access to a forum where they can communicate with Primal Alternative and the Primal Alternative Network for support, advice and encouragement (this forum is currently hosted as a private Facebook group),
(iii) notify Primalistas in the Facebook group of any improvements to Primal Alternative Products:
a. changes to the recipes and substitute ingredients,
b. changes to production techniques, and
c. new recipes and products,
(iv) generally coordinate the operation of the Primal Alternative Network,
(v) provide promotion on Primal Alternative’s website for all Primalistas with current food business registration and insurance certificates and all their stockists. Note that you are responsible for notifying Primal Alternative of new stockists and must advise us if a stockist needs to be removed from the website.
(vi) at Primal Alternative’s sole discretion, enter into licensing agreements with Collaborative Brands to expand the Primalistas’ reach and product range, and
(vii) take reasonable steps to maintain the integrity of the Primal Alternative Brand and protect it against any action or infringement by any person.

 

5. COLLABORATIVE BRAND SUB-LICENCES

(i) Primal Alternative may, at their sole discretion, enter into an exclusive Licence Agreement with a Collaborative Brand (“the Collaborative Brand Licence Agreement”) which authorises Primal Alternative to grant sub-licences to Primalistas, allowing them to use the Collaborative Brand’s recipes to produce and sell the Collaborative Brand’s Products under combined packaging approved by Primal Alternative and the Collaborative Brand (“the Combined Brand”).
(ii) Only currently licensed Primalistas are entitled to the grant of a Collaborative Brand sub-licence.
(iii) Grant of a Collaborative Brand sub-licence is optional and you may choose whether or not to accept it. Primal Alternative may offer access to Collaborative Brand products through sub-licences, but Primalistas are not obliged to participate.
(iv) If you choose to accept a Collaborative Brand sub-licence, you must sign any relevant Collaborative Brand Royalty Agreement which creates separately enforceable obligations between you and the Collaborative Brand.
(v) Grant of a Collaborative Brand sub-licence is conditional on you::
a. adhering to the Collaborative Brand’s Products pricing guide;
b. adhering to the Collaborative Brand’s Recipes without modification or alteration;
c. packaging the Collaborative Brand’s Products in accordance with the Combined Brand directions provided by Primal Alternative and/or the Collaborative Brand;
d. using the professionally produced Combined Brand Labels which are designed for your jurisdiction (FSANZ, FDA, or UK requirements);
e. using, and only using, the correct Combined Brand Labels on the relevant Collaborative Brand’s Products;
f. committing to keep the Collaborative Brand’s recipes confidential and using the training videos for your own private viewing; and
g. submitting records and paying royalties to the Collaborative Brand on a monthly basis as required by the Collaborative Brand’s Royalty Agreement.
(vi) Grant of a Collaborative Brand sub-licence is conditional on the co-existence of the relevant Collaborative Brand Licence Agreement. Your sub-licence with a Collaborative Brand will be terminated immediately if the relevant Collaborative Brand Licence Agreement is terminated.
(vii) A Collaborative Brand sub-licence may be terminated by you giving 60 days written notice to the Collaborative Brand and Primal Alternative. Termination of a Collaborative Brand sub-licence does not affect your operations as a Primalista under this Licence Agreement.
(viii) A Collaborative Brand sub-licence may be terminated immediately by Primal Alternative under instructions from the Collaborative Brand if you are in default under the relevant Royalty Agreement, or if a Collaborative Brand notifies Primal Alternative that it believes irreparable damage is occurring to its brand or reputation as a result of your conduct.
(ix) If your Collaborative Brand sub-licence is terminated or appears likely to be terminated under clause 5(viii), Primal Alternative may issue you with a formal warning under clause 7(d).

 

6. CONSUMER GUARANTEES

(i) You agree to take full responsibility for the quality of the Primal Alternative Products that you produce, and indemnify Primal Alternative against any claims, loss, damage or risks to consumers arising from your negligence, including the use of poor quality materials or production or distribution standards.
(ii) If a consumer has a valid complaint regarding a problem with a Primal Alternative Product produced by you, you must fulfil your consumer guarantee obligations by offering the consumer a replacement Primal Alternative Product or a full refund.

 

7. TERMINATION

(a) By the Primalista

You may terminate this Licence Agreement at any time by giving Primal Alternative 7 days written notice via email. Please note that this notice must be received at least 7 days before your next monthly Membership Fee is due in order to cancel the transaction before the next payment is incurred.

(b) By Repeated Failure to Pay

If you fail to honour a Membership Fee payment that is due, on the first two separate billing occasions we will attempt to re-process payment. On the third separate billing occasion of non-payment, your Licence will be revoked. Any outstanding Membership Fees due and payable remain payable.

(c) By Breach of this Licence Agreement

(i) The following conduct is considered to be a fatal breach of this Licence Agreement. The Licence Agreement will be automatically terminated if you:
a. fail to hold or maintain any required approvals to operate a food business, including food business registration under the Food Act, or other requirements of the Primalista’s local council or other relevant regulatory body within 52 weeks of accepting this agreement (unless taking a Baking Break under clause 2(b)),
b. fail to hold or maintain adequate insurance cover,
c. are convicted of a serious offence,
d. operate your business in any way that endangers public health and safety,
e. act fraudulently in connection with Primal Alternative’s business or that of a Collaborative Brand,
f. make unauthorised changes to the recipes for Primal Alternative Products,
g. use the Primal Alternative branding for non-Primal Alternative Products, or
h. fail to comply with any term or condition of this Licence Agreement and do not rectify this failure in accordance with clause 7(c)(ii) (d),

(ii) For the avoidance of doubt, if Primal Alternative considers that a fatal breach of this Licence Agreement has occurred, Primal Alternative must:
a. give you notice in writing that Primal Alternative proposes to terminate the Licence Agreement,
b. set out the details of the relevant breach,
c. tell you what Primal Alternative requires to be done to remedy the breach,
d. allow you a reasonable time to remedy the breach. This period, up to a maximum of 30 days, will be determined at Primal Alternative’s sole discretion based on the nature and seriousness of the breach, and
e. if the breach is not satisfactorily rectified during the period allowed for rectification, immediately terminate this Agreement.

(d) To Protect the Primal Alternative Brand

If you act in a manner that is inconsistent with the Primal Alternative brand vision and values or act in a manner designed to bring the Primal Alternative brand into disrepute, Primal Alternative will issue you with a formal warning. If the conduct complained of is repeated, this Licence Agreement will be automatically terminated. Primal Alternative has the sole discretion to determine what conduct merits a warning under this clause, based on consideration for the welfare of Primal Alternative and the other Primalistas.

(e) By Insolvency

This Licence Agreement automatically terminates if any of the parties become insolvent.

(f) Suspension of the Primalista by Primal Alternative

(i) Primal Alternative is entitled to immediately suspend your licence pending rectification of the breach where you have been served with a notice pursuant to clause 7(c)(ii) or 7(d), and Primal Alternative reasonably believes:
a. that there is a risk to the goodwill of Primal Alternative, or
b. that you are likely to continue to breach the agreement during the period allowed for rectification.
(ii) Primal Alternative agrees to reinstate your licence if the breach is satisfactorily rectified before the expiration of the period allowed for rectification.

(g) Injunction

(i) You acknowledge that your strict adherence to the provisions of this Licence Agreement is vital to the success of the Primal Alternative brand, and to Primal Alternative and other Primalistas, and that damages would not be an appropriate remedy in the event of a breach by you.
(ii) The parties acknowledge that Primal Alternative is entitled to apply for, and obtain, temporary or permanent injunctions, declarations and orders for specific performance enforcing the provisions of this agreement in the event of breach by you and to prohibit or restrain any act or omission by you that would constitute a breach of this agreement.

(h) Consequences of Termination

If this Licence Agreement is terminated:
(i) You will no longer be entitled to sell Primal Alternative Products (or Collaborative Brand Products if you have been granted a Collaborative Brand sub-licence), although you may continue to produce Primal Alternative Products for personal use.
(ii) Your membership of the private Primalista Forum on Facebook and access to any private areas of Primal Alternative’s website and email will be revoked.
(iii) If the Licence Agreement has been terminated under clause 7(c) or 7(d), you must pay Primal Alternative all costs, expenses or damages (including legal costs, expenses or damages on a solicitor – own client basis) incurred by Primal Alternative as a result of the conduct leading to termination.
(iv) Any unpaid Fees that are due and payable up to the date of termination remain payable. If payment is not received within 7 days, we may pass your account over to our Credit Management Company who will add their charges to your outstanding balance.

 

8. RESTRICTIVE COVENANT

(i) You unconditionally agree that you are receiving valuable access to Primal Alternative’s intellectual property, confidential information and trade secrets that you otherwise would not receive or have access to, but for the rights licensed to you under this Agreement.

(ii) You therefore agree that, while you remain a licensed Primalista and for a period of 12 months after this Agreement terminates, regardless of the reason for it ending, you will not:
a. Sell or produce for sale any products that use Primal Alternative Recipes, branding, or confidential information, or any products that are substantially similar to Primal Alternative Products; or
b. Develop, organise or run a training or practical educational program or activity on your own or for any other organisation that would directly compete with Primal Alternative.

(iii) For the avoidance of confusion, the purpose of this clause is to protect Primal Alternative’s intellectual property in the Primal Alternative Products and the Recipes and Resources.

(iv) You acknowledge that the prohibitions and restrictions contained in this clause are important to protect the legitimate goodwill of Primal Alternative and all licensed Primalistas.

 

9. RELATIONSHIP OF THE PARTIES

(i) The grant of rights under this agreement do not constitute a franchise arrangement or form the relationship of franchisor and franchisee, employer and employee, principal and agent, a partnership or a joint venture.

(ii) You operate your own independent business. Primal Alternative provides guidance, training, and community support but does not control how you conduct your day-to-day business operations.

(iii) You must give no warranties or representations in relation to Primal Alternative, except those which have been authorised by Primal Alternative in writing, and vice versa.

 

10. INTELLECTUAL PROPERTY

(a) Confidential Information and Copyright

(i) The Recipes and Resources that Primal Alternative provides to you are protected by copyright laws and treaties around the world, with all rights reserved.
(ii) In receiving access to the Recipes and Resources, you will also be provided with Confidential Information in the form of trade secrets. You acknowledge that the Confidential Information remains the property of Primal Alternative and undertake not to discuss or disclose the Confidential Information to anyone who is not directly an employee, agent or licencee of Primal Alternative.

(b) Use of Primal Alternative’s trademarks

(i) Primal Alternative is registered as trade mark 1874987 in Australia, and as a global online business, Primal Alternative claims ownership of this name as an unregistered trade mark wherever else it is used in the world. This means that the name Primal Alternative may not be used in connection with any other product or service without a licence, or in any way that is likely to cause confusion in the marketplace, or in any manner that disparages Primal Alternative, the Primalistas, or their business.
(ii) You acknowledge that Primal Alternative is the owner of Primal Alternative’s registered and unregistered trademarks and any trademarks or logos which relate to Primal Alternative Products, and that your sole right to use those marks is derived from this Agreement.
(iii) You must not use any other trademarks, logos, designs or colour schemes in connection with the sale of Primal Alternative Products, although you are entitled to be identified by your own registered business or trading name on Primal Alternative Products that you have produced.
(iv) You must comply with all reasonable directions that Primal Alternative may issue regarding the manner of using our intellectual property. This includes displaying all appropriate trade mark and copyright information on material that you use, in order to maintain appropriate notification and protection of Primal Alternative’s intellectual property rights.
(v) You agree not to apply for registration in Australia or internationally of any trade mark, business name, company name or domain name that incorporates signs, logos or words the same as, substantially identical or deceptively similar to the Primal Alternative trade mark or any associated intellectual property, including copyright, whether registered or unregistered, without express written permission from Primal Alternative. Failure to comply with this provision will be taken very seriously and may result in your licence being revoked.

(c) Improvements suggested by the Primalista

You agree and acknowledge that any suggestions for improvements or tweaks that you may make in regard to Primal Alternative Products, or the Recipes and Resources, may be adopted at Primal Alternative’s sole discretion, for the benefit of Primal Alternative and all Primalistas, and this adoption does not give you any intellectual property rights of any kind.

 

11. DISCLAIMER

(a) The Suitability of the Licence

Primal Alternative does not offer legal advice, financial advice or any other kind of professional advice. The information provided in the Recipes and Resources are based on Primal Alternative’s own experience and training. Primalistas are required to do their own due diligence and decide whether this Licence Agreement is right for their personal circumstances and their business. It is your responsibility to conduct your own research, seek independent legal and financial advice, and make a fully informed decision about whether to accept this Licence Agreement.

(b) No Guarantee or Warranty

Except as expressly provided by the Australian Consumer Law, Primal Alternative makes no guarantee of results or returns for individual Primalistas. Income as a Primalista is entirely dependent on your business experience, commitment, personal factors and unique circumstances when producing and selling Primal Alternative Products.

(c) Primalista responsibility for compliance

Primal Alternative has developed the Food Safety Program, label templates and related materials to the best of its knowledge and experience. You remain responsible for ensuring your products, labels and business practices comply with all laws and regulatory requirements in your jurisdiction.

 

12. JURISDICTION AND DISPUTE RESOLUTION

(a) Jurisdiction

(i) The validity, interpretation and performance of this Licence Agreement is governed by the law of Western Australia. Regardless of where you live in the world, you irrevocably agree that if the dispute resolution processes fail, the courts of Western Australia, and the Commonwealth of Australia, will have exclusive jurisdiction.
(ii) Any mediation, court action or proceedings is to be commenced online for the convenience of both parties, wherever possible. If not possible, then you agree and accept that Western Australia is the default jurisdiction for the resolution of disputes.

(b) Disputes between Primalistas

(i) Where a dispute arises between two Primalistas, both are required to submit a statement of their concerns in writing to Primal Alternative, setting out the nature of the dispute, the outcome they want and the action they think will settle the dispute.
(ii) All meetings will be held online via ZOOM.
(iii) If the Primalistas are unable to resolve a dispute by negotiation and discussion within 3 weeks, Primal Alternative will make a final decision on the steps necessary to resolve it. This decision is final and is made at Primal Alternative’s sole discretion.

(c) Disputes between Primal Alternative and the Primalista

(i) The parties shall make genuine efforts to resolve any dispute arising out of or in connection with this Licence Agreement by negotiation and discussion. For the avoidance of confusion, this means:
a. the party with a complaint must notify the other in writing via email of the problem or issue;
b. the notification must set out the nature of the dispute, the outcome they want and the action they think will settle the dispute;
c. if the dispute cannot be settled via email, the parties must meet with each other within 21 days of receiving notification of the dispute and attempt to negotiate a resolution; and
d. all meetings will be held online via ZOOM.
(ii) If the parties are unable to resolve a dispute by negotiation and discussion within 3 weeks, the parties must proceed to mediation (online where possible) with the assistance of an accredited mediator.
(iii) The mediator is to be appointed by agreement between the parties or, failing agreement within 30 days of the first notification of the dispute, the party initiating the dispute will seek the appointment of a dispute resolution professional by the President of the Law Society of Western Australia or similar neutral authority, and:
a. subject to the mediator’s availability, the mediation shall take place online within 21 business days of the appointment of the mediator,
b. the parties agree to make a genuine effort to explore all the issues in dispute and all options that may resolve them, and
c. each party will bear its own costs in relation to compliance with this clause and the mediation itself and share equally the costs of any mediator appointed.
(iv) A party may not commence court proceedings in respect of a dispute unless this clause has been followed except where:
a. urgent injunctive relief is sought, or
b. the proceedings are solely to recover monies that are due and payable.

(d) Mutual Non-Denigration

(i) Confidentiality is paramount to both the reputation of Primal Alternative and all Primalistas.
(ii) At no time will any communications or discussions in relation to any dispute be made public. This includes but is not limited to any social media platforms.
(iii) Any negative public discussion or comments about either party will be considered defamatory, negative, or otherwise damaging, and will be the subject of compensation in any mediation or litigation claim.

 

13. REPRESENTATIONS AND WARRANTIES

Primal Alternative represents and warrants to you that:
(i) Primal Alternative owns the legal property rights (including the intellectual property rights) to the Primal Alternative Products, which gives Primal Alternative the right to grant a licence to produce and sell those products under this Licence Agreement.
(ii) Primal Alternative has and will continue to have the contractual right to amend this Agreement from time to time as improvements are made to Primal Alternative.
(iii) Primal Alternative Products may only be produced and sold by Primal Alternative, the Primalistas and stockists supplied with Primal Alternative Products by Primal Alternative and the Primalistas. No other exceptions apply.
(iv) Primal Alternative will inform the Primalistas immediately of any legal or regulatory changes affecting the production or sale of Primal Alternative Products.

 

14. GENERAL PROVISIONS

(a) Costs

(i) Each party will bear its own costs in relation to the preparation and execution of this agreement.
(ii) Except to the extent it is otherwise expressly provided in this agreement, you will pay all stamp duty on this agreement and on any instrument or document executed to give effect to any provision of this agreement.

(b) Whole Agreement

This Licence Agreement, including any Schedules, comprises the whole agreement between the parties concerning the Primalista Licence and replaces any prior agreement, arrangement or understanding regarding the relationship between the parties.

(c) Variation

(i) Any variation to the Licence Agreement must be in writing and accepted by you and Primal Alternative (including electronically).

(ii) Schedules may be varied by Primal Alternative emailing a copy of the amended Schedule to you without the requirement of signatures. You will have 7 days from receipt of the amended Schedule to notify Primal Alternative if you feel that your rights have been substantially affected by the amendment.

 

(d) Survival of clauses

Clauses 7(g), 7(h), 8, 10 and 12 are essential terms of this Licence Agreement and survive the termination of the Agreement for any reason.

(e) Severability

The parties agree:
(i) to apply a construction of each provision of this document that creates a legal and enforceable provision;
(ii) that any illegal or unenforceable provision will be severed from this agreement and will not affect the continued operation of the remaining provisions; and
(iii) to use their best endeavours to replace any severed provision having a commercial import as close as possible to the severed provision.

(f) Counterparts

The Licence Agreement may be executed in any number of counterparts. All counterparts, taken together, constitute one instrument. This Agreement may be accepted electronically in accordance with clause 14(g).

(g) Electronic acceptance

You agree that this Licence Agreement may be accepted electronically. You will be taken to have accepted and agreed to be bound by this Agreement when you do any of the following:
(a) tick a checkbox or click “I agree” (or similar) in an online checkout;
(b) complete an online purchase;
(c) set up or authorise a direct debit (including via Ezidebit or any other direct debit provider approved by Primal Alternative); or
(d) pay an invoice or otherwise make payment for the Primalista Licence Membership,
where in each case you are presented with this Agreement or provided a link to this Agreement prior to payment or authorisation. This acceptance has the same legal effect as if this Agreement had been signed in writing.

 

SCHEDULE 1 — FEES

1. Monthly Membership Fee (Option A)

(a) Australia (AUD): $350 per month for the first 24 months, then $130 per month as the loyalty membership rate for as long as you remain licensed.
(b) United States (USD): $250 per month for the first 24 months, then $90 per month as the loyalty membership rate for as long as you remain licensed.

2. Upfront licence fee (optional) (Option B)

(a) Australia (AUD): $5,497 paid upfront, plus the ongoing Membership Fee at the loyalty membership rate of $130 per month for as long as you remain licensed.
(b) United States (USD): $3,850 paid upfront, plus the ongoing Membership Fee at the loyalty membership rate of $90 per month for as long as you remain licensed.