TERMS AND CONDITIONS

1. Supply of Goods

1.1 In consideration of your payment of the Price, we will supply the Goods in accordance with this Agreement, whether ourselves or through our Personnel

1.2 If this Agreement expresses a time within which the Goods are to be supplied, we will use reasonable endeavours to provide the Goods by such time, but you agree that such time is an estimate only.

1.3 All variations to the Goods must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instructions or directions from you constitute a variation to the nature of the Goods or the scope of our obligations under this Agreement, then we will not be obliged to comply with such instructions or directions unless agreed in accordance with this clause.

1.4  Notwithstanding clause 1.3, you agree that we may vary the Price at any time, by providing 30 days’ written notice to you (Variation Notice Period). If you do not agree to any amendment made to the Price, you may, before the end of the Variation Notice Period, terminate this Agreement by giving us 30 days’ notice in writing, in which case, the proposed variation will not come into effect and clause 14.5 will apply.

2. Delivery, Title and Risk

2.1 Title in the Goods will only pass to you on the date that you pay the Price in full in accordance with this Agreement.

2.2 We will use reasonable endeavours to deliver the Goods by the time agreed between the Parties, and risk in the Goods will pass to you once we have delivered the Goods to the agreed Delivery Address. [We/you] will be responsible for the costs of delivery.

2.3 Where Goods are supplied to you without payment in full, you:

(a) are a bailee of the Goods until title in them passes to you;

(b) irrevocably appoint us to be your attorney to do all acts and things necessary to ensure our retention of title to the Goods, including the registration of any security interest in our favour with respect to the Goods; and

(c) must not allow any other person to have or acquire any security interest in the Goods without our prior written consent.

3. Distribution Obligations

3.1 You are appointed to Distribute the Goods, during the Term, solely within the Territory and only through the Distribution Channel. You must not Distribute the Goods outside of the Territory or outside the Distribution Channel without our prior written consent (or Distribute to any customer you know or suspect will Distribute the Goods outside of the Territory or outside of the Distribution Channel).

3.2 Nothing in this Agreement creates an exclusive relationship between you and us, and the Parties agree that:

(a) we may, at any time, Distribute (or may appoint others to Distribute) the Goods, including within the Territory; and

(b) you may at any time, sell or supply goods the same as or similar to the Goods, including within the Territory.

3.3 General: You agree to (and to the extent applicable, ensure that your Personnel agree to):

(a) comply with this Agreement, all applicable Laws, and our reasonable requests;

(b) Distribute the Goods with due care, skill and diligence, with due expedition and without delay, in a proper and profession manner, and in accordance with best industry practice; and

(c) provide us with all documentation, information, instructions, cooperation and access reasonably necessary to enable us to supply the Goods.

 3.4 Without limiting, and in addition to any other obligation under this Agreement, you agree to (and to the extent applicable, ensure that your Personnel agree to):

(a) purchase the Goods only from us;

(b) not alter the Goods, their packaging or labelling in any way, without our written consent;

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

(d) not register any Intellectual Property Rights in connection with the Goods;

(e) take all reasonable steps, and cooperate with us, to proactively Distribute the Goods in the Territory and through the Distribution Channel;

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

(g) not order more than six tester versions of the Goods within any 12-month period;

(h) immediately notify us (no later than 2 Business Days after becoming aware) of any adverse incidents (such as deaths, injuries, permanent impairments or damage), or incidents that could lead to adverse incidents, or incidents that could or may require at Law a product recall, being incidents caused by the use of the Goods or otherwise in connection with the Goods;

(i) immediately notify us (no later than 2 Business Days after becoming aware) of any defective Goods, or other issues or concerns that may (directly or indirectly) adversely affect our brand or reputation (or that of the Goods), and cooperate with us to respond to, or rectify or remedy, any such issues or concerns;

(j) maintain, for the Term, records in respect of your Distribution of the Goods, including records of customers you sold the Goods to, and provide such records to us immediately on request;

(k) meet the Minimum Performance Requirements (where applicable);

(l) obtain, and provide to us copies of, any access, approvals, consents, licences permits and assistance (including information or documentation) requested by us so that we may comply with our obligations under this Agreement or at Law; and

(m) promptly refer to us all enquiries received by you from customers located outside of the Territory.

3.5 Marketing and Promotion of the Goods: Without limiting and in addition to any other obligation under this Agreement, you agree to (and to the extent applicable, ensure that your Personnel agree to):

(a) proactively use and distribute the most recent versions of any marketing or promotional materials provided by us;

(b) develop your own marketing or promotional material for the Distribution of the Goods, which are consistent and comply with the brand guidelines and other material provided by us, and provided we have given prior written consent to the use of any such marketing or promotional material developed by you;

(c) not use any other material to market or promote the Goods, other than the material authorised for use under clauses 3.5(a) and 3.5(b); and

(d) unless otherwise agreed in writing by us, 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.

3.6 Recall of the Goods: You must provide us all assistance and cooperation that we reasonably request in respect of any form of recall of the Goods (including where required by Law) when notified by us, and within the timeframe reasonably required by us. We agree to reimburse you for any direct costs or expenses reasonably incurred as part of assisting us to execute a recall, unless the recall was caused or contributed to by you or your Personnel’s acts or omissions.

3.7 You agree to pay our additional costs reasonably incurred as a result of you failing to comply with this clause 3.

4. Minimum Order Quantity and Minimum Order Value

4.1 You agree to meet the Minimum Order Quantity and/or Minimum Order Value for each Order, where applicable.

4.2 If you do not meet the Minimum Order Quantities and/or Minimum Order Value within any 3 month period, we can terminate this Agreement by providing at least 30 days’ written notice.

5. Branding Guidelines

5.1 You agree to comply with the branding guidelines that we provide to you, including through our portal, as amended from time to time (Branding Guidelines).

5.2 During the Term, if we determine, acting reasonably, that you have not complied with our Branding Guidelines:

(a) we agree to notify you and provide you with details of our concerns;

(b) you agree to work with us to resolve the matter, which may include developing and implementing a plan to ensure your compliance with the Branding Guidelines as approved by us; and

(c) if the Parties cannot resolve the matter within 30 days of the date of such notice provided in accordance with clause 5.2(a), we can terminate this Agreement by providing at least 30 days’ written notice.

6. Orders

6.1 During the Term, you may request us to supply the Goods by notifying us in writing, through our order portal, or by any other process we specify (Order Request).

6.2 We may, in our discretion, accept or reject an Order Request. If we accept the Order Request, we will issue confirmation of your Order Request and it will become a binding Order.

6.3 Each Order is subject to, and will be governed by, this Agreement and any other conditions expressly set out in the Order. To the extent of any ambiguity or discrepancy between an Order and this Agreement, the terms of the Agreement will prevail.

7. Price and Payment

7.1 You agree to pay us the Price and any other amounts due under this Agreement in accordance with the Payment Terms.

7.2  If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion, and without prejudice to any of our rights or remedies under this Agreement or at Law):

(a) after a period of 5 Business Days from the relevant due date, cease supplying the Goods, and recover, as a debt due and immediately payable from you, our reasonable additional costs of doing so (including all recovery costs);

(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the relevant due date in accordance with the Payment Terms; and/or

(c) enter any premises where the unpaid Goods 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.

7.3 When applicable, GST payable will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges. “GST” has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

 7.4 Unless otherwise stated by us in writing, the Price is exclusive of any tax imposed by any government, state or local authority on the value of goods and services, and includes goods and services tax, sales tax, use tax, indirect tax, value added tax, excise tax, customs tax, tariffs and duties (Sales Tax), which will be your responsibility to pay. If we are required to pay any Sales Tax in relation to the Goods supplied under this Agreement, the applicable Sales Tax will be set out in the invoice provided to you and the Price payable by you under this Agreement must be increased by the applicable Sales Tax. This clause 7.4 does not apply to any taxes imposed on our net income.

8. Security Interest

8.1 You acknowledge and agree that:

(a) this Agreement is a ‘security agreement’ under the Personal Property Securities Act 2009 (Cth) (PPSA);

(b) this clause 8 creates a security interest in the Goods and any proceeds from any sale or disposal of the Goods, and we are a secured party in relation to the Goods and any such proceeds;

(c) we are entitled to register our interest on the relevant register as (at our discretion) a security interest, and if applicable, a ‘purchase money security interest’; and

(d) you must (at your cost), where we request, take all steps that we consider necessary or desirable to assist us to register our security interest, to ensure our security interest in the Goods and the proceeds is enforceable, and to perfect, or better secure out position under this Agreement, or ensure our priority over all other security interests

8.2 Until such time as title in the Goods has passed to you as contemplated under clause 2.1, you must not allow any other person to have or acquire any security interest in the Goods, unless with our prior written consent.

8.3 To the extent the Law permits, you waive your right to receive any notice (including notice of a verification statement) that is required by the PPSA, including but not limited to notices under sections 95, 118, 121, 130, 132, 135 or 157. However, this does not prevent us from giving a notice under the PPSA.

8.4 You must not disclose any information of the kind referred to in section 275 of the PPSA, to the extent permitted under that section.

8.5 Nothing in this clause 8 is intended as an agreement to subordinate a security interest arising under this Agreement and conditions in favour of any person under section 61 of the PPSA.

8.6 In this clause 8, a ‘security interest’ includes any form or lien, encumbrance or a security interest under the PPSA.

8.7 Terms used in this clause 8 but not defined have the same meanings as in the PPSA.

8.8 This clause 8 will survive the termination or expiry of this Agreement.

9. Intellectual Property

9.1 As between the Parties:

(a) we own all Intellectual Property Rights in Our Materials;

(b) you own all Intellectual Property Rights in Your Materials; and

(c) nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.

9.2 As between the Parties, ownership of all Intellectual Property Rights in any New Materials will at all times vest, or remain vested, in us upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials does not automatically vest in us, you hereby assign all such Intellectual Property Rights to us and agree to do all other things necessary to assure our title in such rights.

9.3 We grant you a non-exclusive, revocable, royalty-free, worldwide, non-sublicensable and non-transferable right and licence, to use Our Materials that we provide to you and the New Materials, solely for your use and enjoyment of the Goods, as contemplated by this Agreement.

9.4 You grant us a non-exclusive, irrevocable, royalty-free, worldwide, non-sublicensable (other than to our related bodies corporate, as that term is defined in the Corporations Act 2001 (Cth)) and non-transferable right and licence to use Your Materials that you provide to us solely for the purpose of performing of our obligations or exercising our rights under this Agreement.

9.5 If you (if you are an individual) 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 will procure that your Personnel) consent to our use or infringement of those Moral Rights.

9.6 This clause 9 will survive termination or expiry of this Agreement.

10. Confidential Information

10.1 Each Receiving Party agrees:

(a) not to disclose the Confidential Information of the Disclosing Party to any third party (subject to subclause 10.1(c));

(b) to protect the Confidential Information of the Disclosing Party from any loss, damage or unauthorised disclosure;

(c) to only disclose the Confidential Information to those of its Personnel who need to know the Confidential Information in connection with this Agreement, provided those Personnel keep the Confidential Information confidential in accordance with this clause 10; and

(d) to only use the Confidential Information of the Disclosing Party for the purpose of performing obligations, or exercising rights or remedies, under this Agreement.

10.2 The obligations in clause 10.1 do not apply to Confidential Information that:

(a) is required to be disclosed for the Parties to comply with their obligations under this Agreement;

(b) is authorised in writing to be disclosed by the Disclosing Party;

(c) is in the public domain or is no longer confidential, except as a result of a breach of this Agreement or other duty of confidence; or

(d) must be disclosed by Law or by a regulatory authority, including under subpoena, provided that (to the extent permitted by Law) the Receiving Party has given the Disclosing Party notice prior to disclosure.

10.3 Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 10. A Party is entitled to seek an injunction, or any other remedy available at Law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 10.

10.4 This clause 10 will survive the termination of this Agreement.

11. Australian Consumer Law

11.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Goods by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights at Law, nothing in this Agreement excludes those Consumer Law Rights.

11.2 Subject to your Consumer Law Rights, we provide all material, work and goods (including the Goods) to you without conditions or warranties of any kind, implied or otherwise (including without limitation any implied warranties of merchantability or fitness for a particular purpose), whether in statute, at Law or on any other basis, except where expressly set out in this Agreement.

11.3 If the Australian Consumer Law applies to us as a “manufacturer” (as defined under the Australian Consumer Law), you acknowledge and agree that if the Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, our maximum aggregate liability for any Liability to you in relation to the Goods will be an amount equal to the lowest cost of:

(a) replacing the Goods;

(b) obtaining equivalent Goods; or

(c) having the Goods repaired.

11.4 This clause 11 will survive the termination or expiry of this Agreement.

12. Liability 

12. 1 To the maximum extent permitted by Law, but subject to your Consumer Law Rights, you indemnify us from and against any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with:

(a) any property loss or damage, or personal injury or death, caused by your (or your Personnel’s) Distribution of the Goods;

(b) any infringement by you or any of your Personnel of the Intellectual Property Rights of us or a third party; or

(c) any breach by you (or any of your Personnel) of clauses 3.5(c), 3.5(d), 9 or 10 of this Agreement or any Law.

12.2 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with any Goods that are discontinued by us, or overstocked or placed on clearance by you.

12. 3 Despite anything to the contrary but subject to your Consumer Law Rights, 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) (where our Goods are not ordinarily acquired for personal, domestic or household use or consumption) in respect of any failure by us to comply with relevant Consumer Law Rights, our Liability is limited (at our discretion) to:

(1) replacing the Goods or the supply of equivalent Goods, or the payment of the cost of replacing the Goods or of supplying equivalent Goods; or

(2) the repair of the Goods, or the payment of the cost of having the Goods repaired;

(d) except where clause 11.3 applies, our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to the Price paid by you to us in respect of the supply of the relevant Goods to which the Liability relates.

12.4 This clause 12 will survive the termination or expiry of this Agreement.

13. Point of Sale Goods

 13.1 Where we agree to provide you with Point of Sale Goods, despite anything to the contrary and 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 property loss or damage, or personal injury or loss, arising from or in connection with your negligent acts or omissions in respect of your misuse of the Point of Sale Goods.

13.2 The indemnity under this clause 13 will be proportionately reduced to the extent that we contribute the Liability, including our provision of Defective Point of Sale Goods.

 14. Term and Termination

14. 1 This Agreement will operate for the Term.

14.2 Either Party may terminate this Agreement or any unfulfilled Order at any time by giving 60 days’ notice in writing to the other Party.

14.3 We may immediately terminate this Agreement upon written notice if no Order has been placed in any continuous three (3) month period.

14.4 This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:

(a) the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or

(b) the Defaulting Party goes bankrupt, insolvent or is otherwise unable to pay its debts as they fall due.

14.5 Upon expiry or termination of this Agreement:

(a) without limiting and subject to your Consumer Law Rights, any payments made by you to us for Goods already supplied are not refundable to you;

(b)  you are to pay for all Goods supplied prior to termination, including Goods which have been supplied and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;

(c)  by us pursuant to clause 14.4, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees);

(d)  subject to clause 14.5, you agree to cease all activities under or in connection with this Agreement, except to the extent required in order to comply with this clause 14 or any other clause which survives termination of this Agreement;

(e)  we may, at our sole discretion, buy-back any Goods on-hand, which are of merchantable quality, for the same price you paid for those Goods less any handling or delivery fees;

(f)  upon our request, you must provide reasonable assistance and cooperation to us for the purpose of transferring any customers or residual stock of the Goods to a new distributor;

(g)  we may retain your documents and information (including copies) to the extent required by Law or pursuant to any information technology back-up procedure, provided that we handle your information in accordance with clause 10; and

(h)  you agree to promptly return (where possible), or delete or destroy (where not possible to return), any documentation, information or material provided to you by us that is in your possession or control.