NON-EXCLUSIVE RESELLER AGREEMENT
The parties agree that:
- The Supplier distributes, imports and manufactures products as set out in the Product List (Annexure A), and seeks to appoint a non-exclusive reseller (“the Reseller”) on the terms and conditions of this Agreement.
- The Supplier grants non-exclusive rights to the Reseller to market, sell and support the products of the Supplier.
- The Supplier reserves the right to appoint other resellers to provide Reseller services.
- The parties record their respective rights and obligations in this Agreement and agree to perform their obligations in accordance with the terms and conditions of this Agreement.
- The Supplier has offered to appoint the Reseller as a reseller of the Product(s), and the Reseller has accepted the Supplier’s offer on the terms and conditions as described in this agreement, and any future agreements, as amended, from time to time.
DEFINITIONS AND INTERPRETATION
In this Agreement, unless the context or subject matter otherwise require:
"Agreement" means this agreement, (including the recitals, schedules, appendices and exhibits to it), as may later be amended or supplemented by the parties in writing;
"Australian Dollars", "$" or "AUDs" means the lawful currency of Australia;
“C.O.D” means cash on delivery, meaning the recipient must make payment at the time of delivery.
"Confidential Information" shall mean all the information relating to the Supplier and its Product(s), not generally known by the industry in which the Supplier is involved, which the Supplier considers to be proprietary or confidential, including but not limited to:
(a) products, services, processes, costs, sources of supply, marketing plans, strategic plans, business relationships, research and development, sales, profits, pricing methods, discoveries, improvements, know-how, whether or not provided in writing or other tangible expression;
(b) all other trade secrets and proprietary information relating to the Supplier and its Product(s), business affairs and finances of the Wholesaler or other information made available during any discussions.
"Customer" means any person or entity that purchases a Product(s) solely for its own use.
“Effective date” means the date of this agreement, as first mentioned above.
"GST" means goods and services or similar tax imposed by Australia and has the same meaning given by the ‘A New Tax System (Goods and Services Tax) Act 1999 (Cth)’;
“Price List” means the Supplier’s current wholesale price list for the products, together with a suggested retail price, a copy of which is attached as Annexure “B” (as may be modified by the Supplier from time to time).
“Products” means those listed in the current Product list at Annexure A
“Reseller” means any persons, employees, contractors or agents otherwise engaged by the Re-seller.
“Supplier” means Kros Holdings Pty Ltd or any persons, employees, contractors or agents otherwise engaged by the Supplier.
“Term” means an initial period of one (1) year starting on the Effective Date and ending 12 months after the Effective Date, provided on the assumption that it shall automatically be renewed for a further one (1) year period and continues thereafter until terminated in accordance with this agreement.
RELATIONSHIP BETWEEN PARTIES
- Nothing in this agreement implies or evidences or otherwise represents:
- any partnership or joint venture between the parties; or
- the relationship between them of principal and agent,
- Neither party has any authority in any way or for any purpose to:
- bind the other party;
- contract in the name of the other party; or
- make any representation or commitment, or to incur any liability, on behalf of the other.
- If a party must fulfil an obligation and that party is dependent upon the other party, then the other party must do each thing reasonably within its power to assist the other in the performance of that obligation.
APPOINTMENT OF RESELLER AND OBLIGATIONS
- The Supplier appoints the Reseller and the Reseller accepts appointment, on a non-exclusive basis, to promote, market and sell the Product(s) it purchases from Supplier subject to the terms of this agreement. Such appointment shall not constitute a grant of any specific territory or geographical area, however the Reseller shall not be entitled to sell the Product(s) outside of Australia.
- The terms of this agreement will remain in effect for the Term and any extension thereof.
- The Reseller agrees to act in good faith in its dealing with the Supplier and at all times comply with Applicable Australian Laws.
ORDER OF PRODUCT BY THE RESELLER
- The Reseller will, from time to time, order the Product(s) by submitting a signed formal purchase order, as given to the Supplier.
- The Reseller's order shall specify:-
- the Product(s) that the Reseller seeks to purchase;
- the quantities of each product that the Reseller seeks to purchase;
- expected delivery time for the Product(s), which should not be less than 14 days from the date of the purchase order.
- No alteration may be made to an order given under clause 4.1, unless otherwise agreed to in writing by the Supplier.
- The Supplier shall within 7 days of receipt of a purchase order from the Reseller, advise the Reseller if it is unable to deliver the Product(s) within the timeframe requested, and provide an estimated new delivery date.
- Upon receipt of a purchase order from the Reseller, the Supplier shall arrange for the supply and delivery of the Product(s) to the Reseller.
- The Reseller agrees to bear all transportation and other miscellaneous costs arising from the delivery of the Product(s).
- The Reseller will:-
- visually inspect the Product(s) upon delivery and will promptly advise the Supplier of any damage to the Product(s) or any matter that, in the opinion of the Reseller, causes the Product(s) to be not of merchantable quality;
- provide written details of any such damage or matter, including evidence, if appropriate, by notice to the Supplier not later than seven (7) days after the Product(s) are delivered to the Reseller; and
- arrange for the return of such Product(s) to the Supplier at the Supplier’s expense;
If no notice is given to the Supplier under this clause, the products will be deemed fit for purpose and of merchantable quality and delivered in accordance with the Supplier’s obligations under this agreement.
- The Supplier will do all things commercially reasonable to replace any defective Product(s) as soon as possible. If a visual inspection of the Product fails to identify any relevant defect and the Reseller later becomes aware of such defect, then it must give written notice to the Supplier of the prescribed defect, including supporting evidence, as soon as reasonably possible.
- On receipt of the ordered Product(s), the Reseller has the right to sell the Product(s), provided that the Supplier's name and logo is promoted in association with the sale of the Product(s) by any means, as approved by the Supplier from time to time.
- The Reseller shall not in any way represent itself as the Supplier, nor bind the Supplier to any contractual terms with a Customer. In performance of its obligations under this agreement, it is understood that the Reseller and Supplier are independent contractors.
- The price of the Product(s) sold to the Reseller by the Supplier shall be the price specified in the current Price List plus GST, a copy of which is attached as Annexure “B” or other price as specified by the Supplier in writing from time to time. All prices in the Price List exclude insurance and transport costs.
- The Reseller is responsible for all freight, insurance, taxes, excises, duties, tariffs and other charges payable with respect to the delivery of the Product(s) to the Reseller from the Supplier’s warehouse, whether or not delivery is made to the Reseller or to a third party at the Reseller's request.
- The Supplier may change its pricing at any time by giving seven (7) days prior written notice to the Reseller.
- The Reseller is free to determine its own resale price(s) for the Product(s). By way of reference only, the Price List shows the suggested retail price for the Product(s).
- Money payable to the Supplier shall be paid by the Reseller and remain free and clear of any withholding or set off.
- If any amount payable by the Reseller to the Supplier under this Agreement is in arrears, the Supplier may suspend the future supply of any of the Product(s). Any amount not paid by the due date will incur interest at a rate of 5% above the Reserve Bank of Australia Cash Rate calculated daily and compounded monthly but in no circumstances will the interest charged exceed 20% per annum.
TERMS OF SALE.
- This agreement sets out the respective rights and obligations of both the Reseller and Supplier.
- During the term of this Agreement, the Supplier shall sell Product(s) to the Reseller solely upon the terms and conditions contained in this Agreement and in the Supplier’s Standard Terms and Conditions of Sale, a copy of which is attached as Annexure “C”.
- New Customers and First Invoices are all C.O.D (pre-payment). Pre-payment invoices may be paid by EFT, credit card or direct bank deposit and are required before an order will be dispatched.
- The Reseller agrees to pay all costs and charges prior to goods being shipped.
RISK OF LOSS OR DAMAGE
- The risk of loss resulting from damage, destruction or other incidence resulting in loss, of or to any products ordered by the Reseller, will pass to the Reseller when the items have been received by the transport provider of the Supplier for delivery to the Reseller.
- The Supplier shall select the transport provider for the delivery of ordered Product(s) unless an alternative transport provider is otherwise agreed in writing.
WHEN TITLE TO GOODS PASSES TO THE RESELLER
- Title to the Product(s) comprised in an order, will not pass to the Reseller until the Supplier has received payment in full. Until that time, the Reseller shall hold the Product(s) as fiduciary for the Supplier.
- The Reseller shall store the products separately so as to be readily identifiable as the Product(s) and property of the Supplier. The Reseller shall have the authority to on-sell the products to third parties in the ordinary course of its business.
DEFAULT AND REPOSSESSION
- The Reseller acknowledges and agrees that the Supplier, its agent or representative of the Supplier, is empowered to enter any premises of the Reseller or of any other person where the Product(s) are stored in the event of any default in payment and to re-take possession of the Supplier’s Product(s).
CONFIRMATION OF PURCHASE MONEY SECURITY INTEREST
- The Supplier hereby reserves a Purchase Money Security Interest in each unit of Product sold and/or delivered to the Reseller, now or in the future and in the proceeds thereof, if the Reseller sells or leases a unit(s) to another party prior to the Reseller paying the Supplier the purchase price and associated costs in accordance with these terms and conditions. These interests will be satisfied by payment in full of the purchase price and all associated costs of the goods.
- A copy of this agreement may be registered on the Personal Properties and Securities Register at any time before or after the signature by the Reseller to perfect the Supplier’s security interest.
- On the request of the Supplier, the Reseller shall sign any forms or documents the Supplier shall require to perfect a Purchase Money Security Interest.
- The Reseller will not enter into any security agreement that gives any other person a security interest in goods supplied to the Reseller by the Supplier or any proceeds from the sale of the goods, until the Supplier has perfected its Purchase Money Security Interest.
OBLIGATIONS OF THE RESELLER AND THE SUPPLIER.
- The Reseller shall in all its dealings in connection with or pursuant to this Agreement, give proper consideration and weight to the interests of the Supplier and will conduct its business in a manner that will reflect favourably on the Supplier and the Product(s).
- The Reseller shall use commercially reasonable efforts to:
- market, advertise and otherwise promote and sell the products;
- perform its obligations under this Agreement in a timely and professional manner; and
- further and preserve the goodwill and reputation of the Supplier and the Product(s).
As part of these efforts, within thirty (30) days of the Effective Date, the Reseller shall put the Supplier’s name and logo on the Reseller’s web site, according to the specifications provided by the Supplier.
- The Supplier does not warrant any private-labelling of the Products(s). The Reseller shall not private label or brand the Product(s) with Reseller’s name or logo or that of a third party, but may use the Reseller’s logo or brand together with the Supplier’s branding and other identification provided that such use is not confusing to Subscribers or other third parties.
- The Reseller agrees with the Supplier that throughout the Term the Reseller shall:
- act dutifully and in good faith;
- comply with all applicable laws, rules and regulations of any governmental or regulatory authority in connection with its promotion and sale of the products;
- designate an employee to act as a liaison to communicate and interact with the Supplier regarding the operation, installation and service of the Product(s);
- promptly report to the Supplier any charge, complaint or claim involving any Product(s) or the manner of installing, using and maintaining the Product(s); and
- not make any representations, warranties or guarantees to Customers in respect of the Product(s) except where specifically authorised in writing by Supplier.
- The Reseller represents and warrants that all of the information the Reseller provides to the Supplier in connection with its obligations under this Agreement or the purchase or sale of the products must not be false or misleading and shall be accurate and complete to the best of Reseller's knowledge.
- The Reseller shall make all claims pertaining to adjustments to invoices, freight charges, freight loss or damage, credit memoranda, account reconciliations and other alleged discrepancies within thirty (30) days after the date of the applicable invoice. All such claims which are not specifically made in writing within such time period shall be forfeited.
- The Reseller and the Supplier represent and warrant to each other that as at the date of this Agreement:
- the recitals of this Agreement are true and correct;
- where the Reseller is a corporation, it has the power and authority to enter into this Agreement and perform and observe the obligations imposed on the Reseller by this Agreement;
- execution of this Agreement and performance of the matters and transactions contemplated in this Agreement, does not constitute a breach or contravention of any law, regulation, by-law or any agreement binding on the Reseller or its assets;
- the Reseller has such permits, licences, consents and authorities as may be necessary or desirable for it to have in connection with the performance and observance of its obligations under this Agreement.
- The Reseller agrees to sell the Product(s) at prices within reasonable recommended pricing guidelines (if any) as established by the Supplier, unless the Supplier and the Reseller agree otherwise prior to the sale.
INDEMNITY AND LIABILITY
- The Reseller indemnifies the Supplier and its officers, directors, agents and personnel from and against all losses, claims, demands, suits, actions, proceedings, penalties, liabilities, costs and expenses (including without limitation legal fees and expenses), of whatever kind arising from:
- death of or injury to any person to the extent caused by the conduct of Reseller, its officers, directors, agents or personnel;
- damage to or loss or destruction of any real or tangible property to the extent caused by the conduct of Reseller, its officers, directors, agents or personnel; and
- any third party claims or allegations in respect of any privacy obligations owed to such third parties by the Reseller, arising out of a breach by the Reseller of its obligations under this agreement.
- The Supplier will not be liable to the Reseller for any loss or damage whatsoever suffered, or that may be suffered (including but not limited to direct, economic and consequential loss) as a result of any act or omission by Supplier whether negligent or otherwise, in the performance of any duty, obligation or function under this Agreement or in any way arising out of its being party to or in connection with this Agreement.
- The Supplier's liability for a breach of any warranty or condition in relation to the supply of the Product(s), other than a breach of the Supplier's Warranty, shall (to the extent legally permissible) be limited to any one or more of the following, as determined by the Supplier in its absolute discretion:-
- the replacement of the Product(s);
- the supply of equivalent Product(s);
- the payment of the cost of replacing the Product(s); or
- the payment of the cost of acquiring equivalent Product(s).
- Each party must:
- keep confidential;
- take reasonable steps to ensure that the party's employees do not disclose to a third party;
- maintain proper and secure custody of; and
- not use or reproduce in any form,
any confidential information belonging to the other party without the prior written consent of the other party, or as required by law.
- A party must immediately on receipt of a request from the other party in accordance with the other party's rights under this agreement:
- deliver all Confidential Information belonging to the other party and all changes to, reproductions of, extracts from and notes regarding that Confidential Information, in any form;
- destroy the Confidential Information and, if it is stored in other media, by erasing from the medium on which it is stored so that the Confidential Information is incapable of being revived; and
- provide a statutory declaration to the other party that all Confidential Information has been delivered or destroyed in accordance with this clause.
- In the event that the Reseller fails to fulfil or is in breach of any of its obligations under this Agreement and does not rectify the omission or breach after receiving 14 days’ notice in writing from Supplier to do so, then Supplier is entitled to terminate this Agreement by giving written notice to the Reseller of the termination, which will be effective immediately, unless otherwise stated in the notice.
- Any breach of this Agreement, or subsequent agreements, whether explicitly referred in this Agreement or not, may, at the determination of Supplier, result in immediate termination of this agreement.
- If the Supplier becomes aware that such a Reseller is in breach of any of the provisions of this Agreement, the Supplier shall take reasonable steps to notify the Reseller that it is in breach of the Reseller agreement and that it has the right to terminate such agreement.
- In the event that the;
- Reseller makes an assignment for the benefit of its creditors;
- a receiver or receiver and manager or administrator or inspector or analogous person is appointed in respect of or over all or any part of the Reseller's assets;
- an application for the winding up of the Reseller is presented and not withdrawn or dismissed within 21 days or an order is made or an effective resolution is passed for the winding up of the Reseller or any analogous applications are made or proceedings started;
- proceedings are initiated with a view to obtaining an order for winding up the Reseller or any shareholder or director convenes a meeting for the purpose of considering or passing any resolution for the winding up of the Reseller;
- any execution or analogous process is levied or enforced against the property of Reseller; or
- Reseller ceases to carry on business,
then, the Supplier is entitled to terminate this Agreement by giving written notice to the Reseller of the termination, which will be effective immediately, unless otherwise stated in the notice.
CHANGE OF CONTROL
- In the event that the;
- control, ownership or management of the Reseller changes significantly; or
- The Reseller sells or otherwise disposes of substantially all of its business assets to a third party, the Supplier may terminate this Agreement by giving written notice to the Reseller of the termination, which will be effective immediately unless otherwise stated in the notice.
FOLLOWING ON FROM TERMINATION
- Following termination of this Agreement, the Reseller must immediately and at the Reseller’s own expense:
- Cease identifying itself as a Reseller or as having any other working, partner or other relationship with the Supplier;
- Cease promoting, selling and supporting the Reseller Services that are provided directly or indirectly to the Supplier;
- Immediately pay any amounts the Reseller owes to Supplier under this Agreement.
- Any costs incurred directly or indirectly from a termination of this contract by the Supplier will be the sole responsibility of the Reseller.
- All notices or other communications in connection with this Agreement shall be in writing by delivery to the address of the other party, as stated in this Agreement (or such other address as may be nominated in writing from time to time by the parties).
- Notices, approvals, consents and demands given to a party shall be deemed to have been received by that party:
- if given by delivery, at the time of delivery;
- if given by email, two (2) business days after sending; or
- if given by prepaid mail, five (5) business days after posting.
- For clarification, a notice or communication under this Agreement is effective if sent electronically or as an email communication, unless required to be physically delivered by law.
- The Reseller must not sell, transfer, delegate, assign, licence or mortgage charge or otherwise encumber any right it holds pursuant to this Agreement to any person or permit any person to assume any obligation under this agreement without the prior written consent of Supplier.
- Each party must do everything necessary, or reasonably required, by the other party, to give effect to the intentions of the parties, as expressed in this agreement.
WAIVER AND CONSENT
- A party does not waive a right or remedy under this agreement or at law if it:
- fails to exercise a right or remedy;
- only partially exercises a right or remedy;
- delays in exercising a right or remedy.
- A party which exercises a single right or remedy or partially exercises a right or remedy maintains its right to:
- further exercise the same right or remedy;
- to exercise another right or remedy.
- A waiver or consent is effective only if in writing and properly signed by or on behalf of the party to be bound.
- A waiver or consent is effective only:
- to the extent that the party giving it expressly states in writing;
- in the specific instance in which it is given; and
- for the purpose for which it is given.
- A party's rights and remedies are cumulative and do not exclude any other right or remedy.
- A party may exercise or not exercise a right or remedy, including the making or not making of any determination, in its absolute discretion.
- A party is not obliged to give a reason for its decision.
- A party is not liable or accountable for a loss associated with its actions under this clause.
- To the extent permitted by law, a party may enforce or act on a breach of another party's obligations under this document, even if the parties terminate this Agreement.
- This agreement:
- records the entire agreement between parties; and
- supersedes all previous negotiations, understandings and agreements between the parties.
- The parties agree that for any reason, if any clause or any part of a clause of this Agreement shall be void, voidable or unenforceable:
- such clause or part thereof shall be severable from all other clauses and provisions of this Agreement; and
- all other clauses and provisions will remain unaffected.
- Should the severance of such clause or part thereof be considered by Supplier to be materially adverse to its interest, the Supplier may terminate this Agreement by notice given to Reseller.
- If the Reseller is a corporation, every director must enter into a joint and several guarantee of the performance of this Agreement.
- Clauses 16 (INDEMNITY), 17 (CONFIDENTIAL INFORMATION) and 21 (FOLLOWING ON FROM TERMINATION) shall survive any termination or expiry of this agreement.
- Termination of this agreement does not affect any accrued rights or remedies any party may have.
- All disputes from the implementation of this agreement or related to this agreement shall be resolved through friendly consultation between both parties. If negotiation fails to settle the dispute, either party has the right to make an arbitration application to the Australian Commercial Disputes Centre or like organisation. The arbitration shall be the final verdict and have binding force on both parties.
GOVERNING LAW AND JURISDICTION
- This Agreement shall be governed by and construed in accordance with the laws of the State of Queensland.
The parties each irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of the State of Queensland, whether state or federal, and each waives any immunity or any objection it may have to any action in those courts.