TERMS AND CONDITIONS

These terms and conditions are between the parties described in the Schedule, together the Parties and each a Party. These terms and conditions and the Schedule form the entire agreement under which we will appoint you as the Distributor of the Goods (together, the Agreement).

1.       Appointment

1.1  You agree that your appointment to Distribute the Goods is as set out in the Schedule. 

1.2  If a Territory is applicable, you agree to:

(a)          only Distribute the Goods within the Territory;

(b)          not in any way (whether directly or indirectly) Distribute the Goods outside the Territory; and

(c)           not Distribute the Goods to third parties who you know or suspect (or that you should reasonably have known or suspected) will Distribute the Goods outside the Territory. 

2.       Orders

2.1  You may issue Orders by the process which we advise to you.

2.2  The Order is to specify the following information:

(a)          the Goods to be supplied (including any volume of the Goods you would like us to supply);

(b)          if you are to collect the Goods from us, your desired collection time (Collection Time);

(c)           if we are to deliver the Goods to you, your desired delivery time (Delivery Time); and

(d)          any other information that we may reasonably require.

2.3  We will only be required to comply with an Order if we have agreed to the terms of the relevant Order in writing, or accept the Order in accordance with the terms of the Order.

2.4  Each Order is subject to, and will be governed by, this Agreement and any other conditions agreed by the Parties in writing. To the extent of any ambiguity or discrepancy between an Order and this Agreement, the terms of this Agreement will prevail.

3.       Price

3.1  We may amend the Goods (including by adding or removing the Goods) and the Price after each consecutive 12-month period, the first of which commences on the Start Date, by providing 14 days’ written notice to you.  If you do not agree to any amendment made under this clause 3.1, you may terminate this Agreement by providing us with 30 days’ written notice.

3.2  The price of any additional goods introduced in accordance with clause 3.1 will be determined by mutual agreement between the Parties.

3.3  To the maximum extent permitted by law, we may provide you a list of recommended maximum resale prices at which the Goods may be resold.  You agree to consider our recommended maximum resale prices when Distributing the Goods. 

4.       Delivery or Collection

4.1  If the Parties agree that we are responsible for delivering the Goods to you:

(a)          we will use reasonable endeavours to deliver the Goods to your nominated delivery location (Delivery Location) by the Delivery Time; and

(b)          you will provide such access and facilities to enable us to comply with our obligations without delay or disruption, and free from harm or injury (including access to your Delivery Location). 

4.2  If the Parties agree that you are responsible for collecting the Goods from us:

(a)          we will use reasonable endeavours to make available the Goods by the Collection Time at the collection location agreed between the Parties (Collection Location); and

(b)          you agree to collect the Goods from the Collection Location and by the time agreed between the Parties.

4.3  If this Agreement or the Order states that we are responsible for delivering the Goods to the Delivery Location, you agree to pay for all Delivery Costs.

5.       Title and risk

5.1  Title to the Goods will pass to you on the date that you pay the Price in full in accordance with this Agreement. Risk in the Goods will pass to you on delivery of the Goods to you or collection of the Goods by you (as applicable).

5.2  You agree that we hold a general lien over any Goods owned by us that are in your possession, for the satisfactory performance of your obligations under this Agreement.  You agree that this Agreement and your obligations under this Agreement create a registrable security interest in favour of us, and you consent to the security interest (and any other registrable interest created in connection with this Agreement) being registered on any relevant securities register (and you must do all things to enable us to do so).

6.       Payment

6.1  You agree to pay us:

(a)          the Price; and

(b)          any other amount payable to us under this Agreement,

in accordance with the Payment Terms.

 6.2   If any payment has not been made in accordance with the Payment Terms, we may (at our discretion):

(a)          charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date;

(b)          immediately cease providing the Goods; and/or

(c)           enter any premises where the Goods the subject of any unpaid amount are stored or held, for the purpose of retrieving and taking possession of those Goods, and you agree to provide any access, items and consents required to enable us to do so.

 

7.       Your obligations

7.1  General: During the Term, you agree to Distribute the Goods in accordance with:

(a)          this Agreement and all applicable Laws;

(b)          with due care, skill and diligence;

(c)           with due expedition and without delay;

(d)          in a proper and professional manner, and in accordance with best industry practice; and

(e)          in accordance with our reasonable requests or requirements.

7.2 Distribution: Without limiting and in addition to any other obligation under this Agreement, you agree to:

(a)          take all reasonable steps, and cooperate with us, to:

(1)          proactively market and promote the sale of the Goods in the Territory; and

(2)          at all times during the Term, hold sufficient quantities of stock of the Goods to meet the current and expected future customer demand;

(b)          not do anything that may adversely affect our goodwill, brand or reputation (or that of the Goods);

(c)           comply with all guidelines and procedures made available to you by us in relation to the Distribution of the Goods;

(d)          obtain, and provide to us, any access, consents, approvals, permits, licenses and assistance (including information or documentation) necessary to enable us to comply with our obligations under this Agreement or under any Laws; and

(e)          immediately inform us of any issues, concerns or matters which may (directly or indirectly) adversely affect our reputation or brand (or that of the Goods), including where you have become aware of a Good being defective, and cooperate with, and assist, us to respond to, or rectify or remedy, any such issues, concerns or matters.

7.3 Promotion, marketing and branding: Without limiting and in addition to any other obligation under this Agreement, you agree to:

(a)          develop your own marketing or promotional material to market and promote the Goods, which are consistent, and comply, with the material provided by us, provided we have given prior written consent to the use of the marketing or promotional material; and

(b)          not make or offer any warranty or guarantee, or make any representation, in relation to the Goods, other than those warranties, guarantees or representations expressly stated in the material provided by us.

8.       Warranties and representations

You represent, warrant and agree that:

(a)          you have full legal capacity, right, authority and power to enter into this Agreement, to perform your obligations under this Agreement, and to carry on your business;

(b)          this Agreement constitutes a legal, valid and binding agreement, enforceable in accordance with its terms;

(c)           you are not aware of any actual or potential conflict of interest in the Distribution of the Goods, and the execution and performance by you of this Agreement does not conflict with any Law or any other instrument binding on you; and

(d)  you agree to effect and maintain (at a minimum) the Required Insurances and on request, agree to provide us with evidence sufficient to enable us to confirm your compliance with this clause 8(e).

9.       Confidentiality

9.1  Subject to clause 9.2, you must (and must ensure that your Personnel do) keep confidential, and not use or permit any unauthorised use of, all Confidential Information.

9.2  Clause 9.1 does not apply where the disclosure is required by law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that you ensure the adviser complies with the terms of clause 9.1

10.   Intellectual Property

10.1                As between the Parties, all Intellectual Property Rights developed, adapted, modified or created by or on behalf of a Party (or its Personnel) in connection with this Agreement or the provision of the Goods, will at all times vest, or remain vested, in us.

10.2                You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, for the duration of this Agreement, to use your and your Personnel’s Intellectual Property for the performance of our obligations under this Agreement.

10.3                If you or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and you agree to ensure that your Personnel) consent to our use or infringement of those Moral Rights.

10.4                You agree that we own all Intellectual Property Rights in all Intellectual Property owned, licensed or developed by or on behalf of us or our Personnel before the Start Date and/or developed by us or our Personnel independently of this Agreement and nothing in this Agreement constitutes a transfer or assignment of any of our Intellectual Property Rights unless expressly stated.

11.   Australian Consumer Law

11.1                Certain legislation, including the ACL, and similar consumer protection laws and regulations, may confer you with Statutory Rights.

11.2                If the ACL applies to us as a manufacturer, nothing in this Agreement excludes your Statutory Rights under the ACL.  You agree that our Liability for any Goods is governed solely by the ACL and this Agreement. 

11.3                Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Goods) is provided to you without any warranties of any kind, either express or implied, whether in statute, at law or on any other basis.

12.   Liabilities

12.1                Indemnity: Despite anything to the contrary, to the maximum extent permitted by law, you are liable for, and agree to indemnify us and hold us harmless in respect of, any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with any breach by you (or any of your Personnel) of clauses 7.3(b), 9 or 10 of this Agreement or any Law.

12.2                Limitation of liability: Despite anything to the contrary, to the maximum extent permitted by law:

(a)          neither Party will be liable for Consequential Loss;

(b)          a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and

(c)           our maximum aggregate Liability arising from or in connection with this Agreement will be limited to us repaying you the amount of the Price paid by you to us in respect of the supply of the relevant Goods to which the Liability relates.

 

13.   Termination

13.1                This Agreement commences on the Start Date and continues until the expiration of the Term.

13.2                Either Party may terminate this Agreement if the other Party breaches a material term of this Agreement, and that breach has not been remedied within 10 business days of being notified by the relevant Party.

13.3                Upon termination of this Agreement:

(a)          we will immediately cease supplying the Goods;

(b)          you agree to cease all activities under or in connection with this Agreement;

(c)           you agree to pay the Price for all Goods provided prior to termination and all other amounts due and payable under this Agreement; and

(d)          you agree to immediately return to us all property, including Confidential Information and Intellectual Property belonging to us or our Personnel.

13.4                Termination of this Agreement will not affect any rights or liabilities which a Party has accrued under it.

14.   General

14.1                Disputes:  A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute.  If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the law society of the State to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

14.2                Governing law: This Agreement is governed by the laws of State.  Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in State and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

14.3                GST: If and when applicable, GST payable on the Price will be set out in our invoice. You agree to pay the GST amount at the same time as you pay the Price.

14.4                Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

14.5                Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.

14.6                Survival: Clauses 6, 9, 10, 12, 13.3 and 14 will survive the termination or expiry of this Agreement.

14.7                Insurance details, all resellers shall provide a copy of Public Liability Insurance and Public Liability Cover

 

 

15.   Definitions and Interpretation

15.1                In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, within these terms and conditions, and:

ACL means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.

Confidential Information includes information or documentation which:

(a)          is disclosed to you in connection with this Agreement at any time;

(b)          is prepared or produced under or in connection with this Agreement at any time;

(c)           relates to our business, assets or affairs; or

(d)          relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,

whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever you receive that information.

Consequential Loss includes any consequential, special or indirect loss, damage or expense including any real or anticipated loss of revenue, loss of profit, loss of use, loss of occupation, loss of benefit, loss of financial opportunity, or economic loss whether arising out of a breach of this Agreement, at law, under any statute, in equity, or in tort (including negligence).

Delivery Costs means the costs associated with the delivery or the provision of the Goods, including any insurance, customs, tariffs, duties or other such charges that may apply to the Goods.

Distribute means the marketing, promotion, acquisition, stocking, storage and distribution of the Goods, including so as to enhance our brand and reputation as a manufacturer and/or supplier of the Goods, and Distribution has a corresponding meaning.

Intellectual Property means any copyright, registered or unregistered designs or trade marks, domain names; know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.

Intellectual Property Rights means, for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.

Law or Laws means all applicable laws, orders, judgments, rules, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licenses, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with this Agreement or the provision of the Goods.

Liability means any expense, cost, liability, loss, damage, claim, demand or proceeding (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent.

Moral Rights has the meaning given in the Copyright Act 1968 (Cth).

Order means an order placed by you, for the provision of Goods by us, in accordance with clause 2.

Personnel means, in respect of a Party, any of its officers, employees, consultants, suppliers, subcontractors or agents.

Schedule means the schedule to this Agreement.

Statutory Rights means the rights, warranties, guarantees and remedies relating to the provision of the Goods, which cannot be excluded, restricted or modified by law. 

Term means the period between the Start Date and End Date unless this Agreement is terminated earlier in accordance with its terms.

Third Party Inputs means inputs from third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors.