STOCKIST TERMS AND CONDITIONS OF SUPPLY
Fraser Essentials Pty Ltd provides our services to you subject to the following terms, conditions, and provisions (“Terms and Conditions”). By accessing, viewing, or using this site, or placing orders to purchase product, you indicate that you understand and intend these Terms and Conditions to be the legal equivalent of a signed, written contract, and you accept and agree to be bound by these Terms and Conditions. Fraser Essentials (Supplier) reserves the right to change these Terms and Conditions at any time for any reason, and your continued use of this site following any modifications will be deemed to constitute acceptance of such modifications.
Fraser Essentials (SUPPLIER) supplies direct to the public as well as to a number of Australian stockists and international stockists in other Territories.
All purchasers including Australian Stockists and International Stockists agree that their use of this website and any purchases that they make together with the sale of Product in the Territory will be governed by the terms and subject to the conditions contained herein;
- Whenever used in these Terms and Conditions, the following terms shall have the following meanings respectively, unless otherwise specified:
- of a party means any Person which directly or indirectly controls, is controlled by, or is under common control with, such party; as used herein, the term "control" or “controls” means possession of the power to direct, or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract, law or otherwise, and the term “controlled” shall have the meaning correlative to the foregoing.
- “Business Day” means each of Monday, Tuesday, Wednesday, Thursday and Friday, except when any such day occurs on a statutory holiday observed in the Territory;
- “Confidential Information” means any and all information, documentation or knowledge in any form, relating to the business and assets of SUPPLIER, not generally known to the public, disclosed to, or which may be obtained directly or indirectly by, the STOCKIST, or which may be derived in any way by it as a consequence of the performance of its obligations hereunder, including, without limitation, information relating to SUPPLIER’s present and contemplated products and services; product designs; inventions, improvements; standards, specifications, systems, methods and operating procedures; techniques and modes of manufacturing, compounding or preparing products, formulations and recipes; merchandising, marketing plans and strategies; labels and branding; tests and reports; profits, costs, pricing, product sourcing and sales policies and strategies; buying habits and preferences of present customers of SUPPLIER as well as prospective and potential customers, their names and addresses; trade secrets, know-how, data, research and development; patent, trade-mark, copyright, industrial design and all other intellectual property and proprietary rights and shall also include terms of this Agreement;
- “Effective Date” means the date of commencement;
- “Minimum Annual Performance Requirements” means those minimum annual performance targets required to be satisfied by the STOCKIST as set out more specifically in the Letter of Appointment;
- “Person” means any person, individual, firm, association, syndicate, partnership, joint venture, trustee, trust, corporation, division of a corporation, unincorporated organization or other entity or a government agency or political subdivision thereof;
- “Prime” means, at any time, the rate of interest per annum equal to the rate which the principal office of the Westpac Bank of Australia charges on overdraft facilities greater than $100,000, adjusted automatically with each quote or published change in such rate, all without the necessity of any notice to a party hereto;
- means the finished goods products manufactured and/or sold by SUPPLIER as the same may be supplemented by SUPPLIER, in its sole discretion, from time to time;
- “Term” means the term of appointment of the STOCKIST as set out in the Letter of Appointment comprising the Initial Term and any Renewal Term;
- means the territory or country as specified in the Letter of Appointment; and
- means all the trade-marks and trade names, whether or not registered, which are owned and used by or under license from SUPPLIER and include any website address, email address or social media site address which incorporates the words Fraser Essentials. For the avoidance of doubt Trade-marks include any of the above that are registered by the SUPPLIER and which include the words Fraser Essentials.
- SUPPLIER grants to STOCKIST and STOCKIST accepts from SUPPLIER the non-exclusive right (unless otherwise specified in the Letter of Appointment) to market and sell the Product in the Territory, upon and subject to all terms and conditions set forth in these Terms and Conditions. STOCKIST covenants and agrees to purchase the Product for its own account exclusively from SUPPLIER and to market and sell such Product only in the Territory. STOCKIST acknowledges and agrees that the rights granted pursuant to these Terms and Conditions are limited to the Territory and confer no rights upon STOCKIST with respect to the sale of any Product outside the Territory, and nothing in this Agreement shall restrict SUPPLIER from selling Product to any other Person either in the Territory or outside the Territory unless exclusive rights have been granted to the STOCKIST in the Letter of Appointment. Without limiting the generality of the foregoing, STOCKIST shall not, directly or indirectly, including through any agents, distribute or sell any Product outside the Territory and shall not solicit orders for Product, advertise the Product or keep any stock of the Product outside the Territory. STOCKIST further covenants and agrees not to distribute, market or sell such Product to any Person within the Territory if STOCKIST knows or has any reason to believe that such Product will be resold by such Person, directly or indirectly, outside the Territory. If STOCKIST becomes aware that any Person to whom STOCKIST supplies any Product is marketing or selling, or is planning to market or sell, the Product outside the Territory, STOCKIST shall immediately notify SUPPLIER and shall cease forthwith to supply such Person with Product.
- shall inform SUPPLIER in writing of, and SUPPLIER shall have the right to approve or disapprove, any sub-STOCKIST(s) proposed to be appointed by STOCKIST in respect to the sale and distribution of Product in the Territory, provided, however, that the appointment of any such sub-STOCKIST(s) by STOCKIST, following approval by SUPPLIER, shall not relieve STOCKIST of any of its obligations hereunder.
- covenants and agrees that all enquiries with respect to and any orders for Product received, directly or indirectly, by STOCKIST from outside the Territory shall be referred to SUPPLIER.
- The initial term of this Agreement shall come into effect on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, shall continue in full force and effect for the period specified in the Letter of Appointment (the “Initial Term”).
- Provided STOCKIST shall have complied with all the terms and conditions hereof, and achieved the Minimum Annual Performance Requirements, this Agreement shall be automatically renewed for a further period of one year at the end of the Initial Term, unless either party shall have provided written notice to the other party that it does not intend to renew this Agreement at least sixty (60) days prior to the expiration of the Initial Term, or any Renewal Term, as the case may be.
PURCHASE ORDERS AND SUPPLY OF THE PRODUCT
- At the outset of the Agreement, SUPPLIER shall supply STOCKIST with pre-packaged and labelled Product at prices applicable thereto for the Territory as set forth in the price list, as provided to the STOCKIST from time to time by SUPPLIER.
- STOCKIST shall place a firm written order with SUPPLIER for the quantity of Product to be purchased. Only such orders placed by STOCKIST and accepted by SUPPLIER shall be binding on the parties hereto
- The risk of loss and damage to Product shall pass to STOCKIST immediately upon Product being picked up by or on behalf of STOCKIST, its agent or transport carrier, at SUPPLIER’s warehouse in Western Australia, and thereafter SUPPLIER shall not be responsible for any loss or damage to the Product. STOCKIST will be the importer of record into the Territory for all Product purchased by it and will be responsible for the accuracy of the information presented and the payment of all duties and taxes, and will be liable for any fines or penalties resulting from any missing or inaccurate information.
PRODUCT PRICING AND PAYMENT
- Subject to and in accordance with the terms and conditions hereof, SUPPLIER agrees to sell to STOCKIST, and STOCKIST agrees to buy from SUPPLIER, the Product at the prices set from time to time.Prices of the Product are in AUS dollars, F.O.B. SUPPLIER’s warehouse in WESTERN AUSTRALIA.All charges that may be incurred in connection with the delivery of the Product to STOCKIST, including, without limitation, in respect to freight, export duties, import duties, all applicable taxes, sales taxes, GST, VAT, appropriate insurance and storage costs or any other payments required to process the products from SUPPLIER’s warehouse in are the sole and exclusive responsibility of STOCKIST.
- shall not be obligated to consider accepting any order placed by STOCKIST pursuant to Section 4 unless, prior to or together with such order being placed by STOCKIST, STOCKIST shall make payment to SUPPLIER in an amount equal to one-hundred percent (100%) of the aggregate price of such order.
- Payment in full for all Product shipments shall be made by STOCKIST to SUPPLIER in the following manner:
- via wire transfer to SUPPLIER’s bank account in Western Australia, (particulars of which will be provided to STOCKIST) concurrently with the order by STOCKIST.
- via other payment method agreed by SUPPLIER.
- shall have the right, in its sole discretion, to increase its prices unilaterally, it being understood that any such increases shall only be effective upon sixty (60) days’ written notice to STOCKIST, whereupon at the end of such sixty (60) day notice period, any such revised price shall be effective immediately without further notice and shall be deemed to form part of any price list provided to STOCKIST.
QUALITY AND CHANGES IN PRODUCT
- warrants that the quality of Product supplied shall meet, at the time of delivery to STOCKIST, which for greater certainty is the time when Product is picked up by STOCKIST, its agent or transport carrier at SUPPLIER’s warehouse, the same quality and standards as Product sold to SUPPLIER’s customers in Australia. Thereafter, STOCKIST shall be responsible for any diminishment in the quality of the Product in its possession, whether caused by improper transport or storage of such Product or for any other reason whatsoever.
- shall, promptly following receipt of the Product, examine such Product and satisfy itself that it meets its requirements. To be valid, any claim in respect to short-shipment or for defective Product (other than with respect to Latent Defects) must be made in writing by STOCKIST to SUPPLIER within fourteen (14) days (“Investigation Period”) of the date such Product arrived at STOCKIST’s warehouse, and such short-shipment or defect must not have been caused while the Product was in transport from SUPPLIER’s warehouse to STOCKIST’s warehouse or while in storage by or on behalf of STOCKIST. If STOCKIST has not notified SUPPLIER that it has rejected any Product as defective by the end of the Investigation Period, then it shall be deemed to have accepted the Product (“Accepted Product”). If SUPPLIER agrees with STOCKIST that any rejected Product is defective, SUPPLIER will replace such defective Product with replacement Product free of defect and this replacement Product shall constitute the sole and exclusive liability of SUPPLIER in respect to defective Product.
- may make modifications to Product at any time or discontinue the sale of, or limit its production of, any Product without thereby incurring any liability whatsoever to STOCKIST with respect to any order placed by STOCKIST. SUPPLIER will endeavour to give STOCKIST sixty (60) days’ prior notice in the event of any such discontinuance.
Packaging and warehousing responsibilities
- shall provide SUPPLIER with all necessary information pertaining to packaging and packaging labelling with respect to the local requirements in each jurisdiction within the Territory.
- will use its best efforts to ensure that warehousing and transportation to and within the Territory are effected in such a manner so as not to have a negative effect on the quality of the Product. The physical flow of Product from the warehouse shall be based on a first-in, first-out system.
- STOCKIST shall assume full responsibility for and shall indemnify and save SUPPLIER harmless from any damage, claim, liability, loss or expense (including any legal costs) which SUPPLIER may suffer or incur by reason of STOCKIST’s stocking, warehousing, storage, use, marketing and/or sale of the Product.
- It is acknowledged by both parties hereto that the import and sale of Product in the Territory may be dependent upon prior registration of such Product with the appropriate local government authority in the Territory.STOCKIST shall investigate and so advise SUPPLIER in this regard and, should Product registration or other market authorization be required to import and sell Product in the Territory, STOCKIST acknowledges and agrees that it shall be responsible for securing the registration of the Product or other market authorization, as the case may be, for, and on behalf of, and in the name of, SUPPLIER.
- In furtherance of the foregoing, STOCKIST the registration of the Product in SUPPLIER’s name in a timely manner, which in any event must occur within one hundred and eighty (180) days of the Effective Date of appointment, or within one hundred and eighty (180) days of the effective date of any amendment to the list of Product on this website, in the case of additional finished goods products being added thereto.
- SUPPLIER shall retain title to all Product registrations and Trade-marks.
- To the extent that Product registration has been effected in the name of STOCKIST, STOCKIST will co-operate fully in the transfer of such registrations to SUPPLIER or any Person designated by SUPPLIER.
SALES AND MARKETING OF THE PRODUCT
- will resell all Product purchased hereunder in compliance with all applicable laws in the Territory and only in the packaging supplied or approved by SUPPLIER. STOCKIST is responsible for marketing and promotional activities in the Territory and for compliance with all applicable laws and regulations, including, without limitation, laws and regulations regarding health and safety, nutritional medicinal products, marketing practices, etc.
- shall use its best efforts, at its own expense, to market, promote and sell the Product in the Territory and shall use the same channels and methods and exercise the same diligence, including making regular and sufficient contact with present and prospective customers of Product in the Territory, which STOCKIST uses in marketing its other products. All advertising by STOCKIST in any medium shall be conducted in a dignified manner that will reflect favourably upon the goodwill and reputation of SUPPLIER, and shall conform to the highest standards and shall display the Trade-marks only in a manner approved by SUPPLIER. STOCKIST shall withdraw any advertisements or promotions which are considered unsuitable by SUPPLIER.
- The determination of sales and marketing strategies and STOCKIST’s selling prices for the Product within the Territory shall be the responsibility of STOCKIST, after consultation with SUPPLIER who may provide STOCKIST with a suggested resale price list as well as advice in regard to business processes, sales policies, procedures and systems, marketing programmes and promotions.STOCKIST shall report regularly to SUPPLIER in regard to any market trends or conditions or regulations affecting or which may affect the sale of Product in the Territory that come to its attention, or of any new products which might be competitive with the Product, providing details thereof including prices.
- In performing its duties hereunder, STOCKIST agrees not to make any representation or give any warranty with respect to any of the Product other than those contained in any current brochures, leaflets or other printed matter relating to such Product, which may be issued from time to time by SUPPLIER. In the event that STOCKIST does make any representation or warranty in violation of the foregoing, then STOCKIST agrees to indemnify and save SUPPLIER harmless from any claims, demands, suits, proceedings, damages, liabilities, costs or losses of any nature or kind whatsoever (including any legal costs) suffered or incurred, or which may be suffered or incurred, by SUPPLIER arising out of or in any way connected with any such representation or warranty.
- The restrictive covenants imposed on the STOCKIST hereunder shall extend and apply to any affiliates of the STOCKIST and their respective shareholders, directors, officers, employees and representatives as if they were also parties to this Agreement and STOCKIST shall cause such Persons to comply with such restrictive covenants and will be responsible to SUPPLIER for the actions of all such Persons in contravention thereof.
ADDITIONAL OBLIGATIONS OF STOCKIST
- During the currency of this Agreement, in addition to any other obligations set forth herein, STOCKIST shall:
- use its best efforts in the performance of its obligations under this Agreement, including without limitation, in respect to the active solicitation of orders in the Territory for the purchase of Product;
- commit and adhere to the highest standards of operation;
- provide to SUPPLIER ongoing market evaluations for Product and use its best efforts to develop and enhance the SUPPLIER name and brand image in order to increase market awareness and sales of such Product within the Territory;
- comply with and cause any sub-STOCKISTs or other Persons appointed by it to comply with all applicable laws, rules, regulations and/or guidelines in the Territory relating to the use, storage, handling, transportation, marketing, advertisement, distribution, sale, transfer and/or disposal of the Product, as well as with the terms and conditions of this Agreement; and
- keep complete and accurate records with respect to any and all Product purchased from SUPPLIER and sold by STOCKIST in the Territory.
REPRESENTATIONS AND WARRANTIES OF STOCKIST
- represents and warrants to SUPPLIER, acknowledging that SUPPLIER is relying upon such representations and warranties in connection with its entering into this Agreement, as follows:
- is a valid subsisting legal entity pursuant to the laws of its country of registration;
- has all requisite power and authority to perform the obligations of STOCKIST as set out herein;
- the performance by STOCKIST of all its obligations hereunder, including the sale of the Product, will be conducted in compliance with all applicable laws in the Territory; and
- The Product will be marketed and sold by STOCKIST solely under the Trade-marks. STOCKIST will not alter, obscure, remove, cancel or otherwise interfere with any markings (including without limitation any Trade-marks, logos, trade names or trading style of SUPPLIER) and other indications of origin, which may be placed on Product.STOCKIST acknowledges that SUPPLIER is the exclusive owner of the Trade-marks and STOCKIST has no right, title or interest whatsoever in the Trade-marks and any goodwill association therewith and that all goodwill associated with the Trade-marks is owned by and shall enure exclusively to and for the benefit of SUPPLIER.Furthermore, STOCKIST agrees not to represent in any manner that it has acquired any ownership rights in the Trade-marks.Any goodwill enjoyed by STOCKIST from use of the Trade-marks shall vest in and become the absolute property of SUPPLIER and STOCKIST undertakes and agrees, at the request and expense of SUPPLIER, whether before or after termination of this Agreement, to execute all such instruments and to do all such acts and things as may be necessary and desirable to vest absolutely in SUPPLIER all such Trade-marks and the goodwill therein. STOCKIST shall, during the Term of this Agreement and subject to due compliance with the provisions of these Terms and Conditions, have the right to use and display SUPPLIER’s Trade-Marks and copyrighted material in the Territory solely in connection with the marketing, sale and support of the Product in such Territory in accordance with the terms of this Agreement and, except as may be otherwise permitted in writing by SUPPLIER, for no other purpose whatsoever.It is the responsibility of STOCKIST to advise SUPPLIER if the packaging materials for Product are not in conformity with all applicable legislation in the Territory.
- In connection with the foregoing, STOCKIST covenants and agrees as follows:
- to market, sell and support the Product only under the Trade-marks, and not under any other trade-mark or logo of any other Person;
- to conduct business in a manner that reflects favourably at all times on the Product and reputation of SUPPLIER in order to develop, promote and maintain same with customers and to protect and preserve the goodwill and image of SUPPLIER and the Product;
- not to use or permit any entity controlled by it or affiliated with it to use the Trade-marks or any other trade-marks or trade names or trade dress of SUPPLIER or any trade-marks, trade dress, words, names, symbols, or designs which could reasonably be expected to be considered confusingly similar thereto, as part of its corporate or trading name or style, or on any of its products;
- not to infringe SUPPLIER’s rights in and to any of the Trade-marks and not to dispute, contest, attack or impair the validity or ownership of the Trade-marks or do any act which tends to impair the validity of the Trade-marks or the title of SUPPLIER to any Trade-marks, trade names, copyrights and registrations used in connection with the Product, nor to effect any applications or registrations thereof without the express written consent of SUPPLIER, and not to take any action to the detriment of SUPPLIER’s interest therein or which would or could dilute the value of the goodwill attaching to the Trade-marks;
- not to effect or permit the removal, renewal or alteration of any Trade-marks, trade names, notices, name plates, or D.I.N.’s or NPN’s or serial numbers affixed to any of the Product or its packaging;
- to impose similar conditions on any Representatives or affiliated persons or companies of STOCKIST to those set out in these Terms and Conditions, and to take such action as SUPPLIER may require at any time in respect to the use by any other Person of SUPPLIER’s Trade-marks.
- STOCKIST shall provide prompt notice to SUPPLIER of any claims, allegations, actions and demands that the marketing and/or sale of the Product infringes or may infringe the intellectual property rights of any other Person and once such notice has been duly given, SUPPLIER shall have full carriage of any resulting action and STOCKIST shall extend its full co-operation to SUPPLIER in the defence by SUPPLIER of any such claim, action or demand.
- shall immediately report to SUPPLIER any actual or potential infringements of the Trade-marks or any matter which may give rise to any infringement of the Trade-marks, or any imitation of Product of which STOCKIST is or may become aware, and STOCKIST shall co-operate with SUPPLIER in protecting such Trade-marks and Product from any such infringement. STOCKIST shall not initiate any protective action with respect to the Trade-marks or Product without prior written authorization of SUPPLIER.
- Upon termination of the STOCKIST Letter of Appointment for any reason whatsoever, STOCKIST shall discontinue forthwith all use of SUPPLIER’s Trade-marks and trade names, and STOCKIST shall return to SUPPLIER all price lists, catalogues, sales literature, advertising literature and all other materials relating to the Product, Confidential Information in STOCKIST’s possession or over which it has control and transfer at the cost of the STOCKIST any registrations held in the name of STOCKIST which include any Trademark of the SUPPLIER.
- agrees that these provisions are reasonable having regard to the necessity of SUPPLIER to protect its ownership rights in the Trade-marks and that any breach of the terms contained herein shall be deemed a material breach of this Agreement and in addition to any other remedies which may be available to it, SUPPLIER shall be entitled to enforce its rights hereunder by specific performance or other injunctive or equitable relief so as to protect all its rights in and to its Trade-marks.
CONFIDENTIAL INFORMATION AND NON-COMPETITION
- When and if required, SUPPLIER will furnish STOCKIST the necessary information so that STOCKIST can fulfill its obligations hereunder regarding the registration of the Product to be distributed in the Territory.This information shall constitute part of the Confidential Information defined in Section 1.1(d).
- From time to time, SUPPLIER may periodically provide STOCKIST with new or up-graded data that has become available, documentation, tests, reports or other pertinent information relating to the Product or otherwise, which information will also form part of the Confidential Information and which will assist in keeping STOCKIST knowledgeable in regard to the Product and maintaining a competitive edge in the marketing and sales of the Product.
- STOCKIST acknowledges that in its relationship with SUPPLIER and/or by virtue of these Terms and Conditions, it and/or its employees, shareholders, officers, directors, principals, agents and contractors (collectively, “Representatives”) will be and shall hereafter continue to be entrusted with Confidential Information, the disclosure of any of which to competitors of SUPPLIER or to the general public would be highly detrimental to the best interests of SUPPLIER. STOCKIST further acknowledges that the right to maintain confidential such Confidential Information constitutes a proprietary right of SUPPLIER, which SUPPLIER is entitled to protect. Accordingly, and notwithstanding anything to the contrary herein expressed, STOCKIST covenants and agrees with SUPPLIER:
- that it shall not use or copy, or permit the use or copy of any of the Confidential Information, directly or indirectly, for any purpose other than the discharge of its duties and obligations arising from its appointment as a STOCKIST hereunder and only in the best interests of SUPPLIER;
- that it will maintain the absolute confidentiality of the Confidential Information and that it will not (without the prior written consent of SUPPLIER) either individually, or in partnership or jointly, or in conjunction with any other Person, as principal, agent, shareholder, or in any manner whatsoever, disclose, reveal, release, utilize, sell, assign, supply, or transfer to any person at any time, any of the Confidential Information, except to the extent necessary to discharge its duties and obligations relating to its appointment hereunder and only in the best interests of SUPPLIER;
- that it will take all necessary action and will do all that is reasonably within its power to prevent the disclosure, release or supply of any of the Confidential Information to any Person, including by any of its Representatives, except to the extent necessary to discharge its duties and obligations hereunder and only in the best interests of SUPPLIER;
- in furtherance of the above, STOCKIST will advise its Representatives, and any other Persons who are given access to the Confidential Information, of the confidential and proprietary nature of the Confidential Information and of the restrictions imposed by this Agreement and, if appropriate, shall require each of them to signify in writing their agreement to abide by the terms of this Agreement and maintain the confidentiality of the Confidential Information.Notwithstanding any such agreement, by any of such Representatives, STOCKIST acknowledges that it shall be fully responsible and liable to SUPPLIER for any and all damages and costs (including legal fees) suffered or incurred by it as a consequence of, or contributed to by, any breach by any of STOCKIST’s Representatives, and/or any other Persons given access to the Confidential Information, of the restrictive covenants contained herein.
- STOCKIST acknowledges that the restrictions contained herein are reasonable and valid and necessary for the protection of the business and operations of SUPPLIER and that any breach of the provisions will cause SUPPLIER substantial and irreparable harm which may not be adequately compensated for by monetary award of damages to SUPPLIER. Accordingly, it is expressly agreed by STOCKIST that in the event of any such breach, in addition to any other remedies which may be available to it, SUPPLIER shall be entitled to and may seek an order for specific performance and other injunctive and equitable relief as may be considered necessary or appropriate to restrain or enjoin STOCKIST from any further breach of the terms hereof and STOCKIST hereby waives all defences to the strict enforcement by SUPPLIER of the restrictions herein.
- Upon termination of the Letter of Appointment for any reason, STOCKIST shall immediately return to SUPPLIER any Confidential Information and shall thereafter refrain from using or disclosing any such Confidential Information to any Person for any purpose whatsoever.
- Notwithstanding any other provision herein, the parties hereto agree that the Stockist appointment shall automatically terminate without requirement of notice to the defaulting party or an opportunity to cure, upon the occurrence of the following events:
- if a decree or order of a court having competent jurisdiction is entered adjudging a party bankrupt or approving as properly filed a petition seeking or winding up of such party, including, without limitation, the appointment of a receiver or controller in respect thereto, or ordering for the winding up or liquidation of its affairs, and any such decree or order continues unstayed and in effect for a period of thirty (30) days;
- if a party admits in writing its inability to pay its debts as they become due, makes any assignment in bankruptcy or makes any other assignment for the benefit of creditors, is adjudged bankrupt, files a petition or proposal to take advantage of any act of insolvency, consents to or acquiesces in the appointment of a trustee, receiver, receiver and manager, interim receiver, custodian, sequestrator or other person with similar powers to itself or of all of any substantial portion of its property or assets, or files a petition or otherwise commences any proceeding seeking any reorganization, arrangement, composition or readjustment under the applicable bankruptcy, insolvency, moratorium, reorganization or other similar law in the Territory or other applicable jurisdiction affecting creditors’ rights or consents to or acquiesces in, the filing of such a petition;
- if a governmental regulatory order or final judgment or decree in any jurisdiction which materially and adversely affects the ability of a party to fulfill its obligations to the other party under this Agreement shall have been made, issued obtained or entered against such party and such order, judgment or decree shall not have been vacated, discharged or stayed pending appeal within the applicable time period; or
- assigns or attempts to assign its appointment or any of the rights or obligations hereunder without the prior written consent of SUPPLIER being given.
- may, without prejudice to any other rights, immediately terminate the STOCKIST appointment by notice to STOCKIST if:
any change occurs in the constitution, management or control or the financial or other circumstances of STOCKIST which, in the sole opinion of SUPPLIER, is materially detrimental to the interests of SUPPLIER including, without limitation, as a result of any interest in STOCKIST being acquired by any Person engaged in a business that is competitive with the business of SUPPLIER; or
- In the event SUPPLIER shall deem it necessary to recall the Product from the Territory, whether as a consequence of issues discovered by SUPPLIER, or if required by the local authorities in the Territory, SUPPLIER shall be entitled to terminate this Agreement upon three (3) months’ notice. In such case, neither of the parties shall be obliged to pay any compensation, loss of income, or goodwill to the other party, except that SUPLIER shall indemnify STOCKIST in respect to any liabilities incurred by STOCKIST in respect to any claims made by any Person against STOCKIST as a direct consequence of and relating specifically to such recall of Product, provided that such Product recall was not caused by or necessitated by any actions or omissions on the part of STOCKIST.
- This Agreement may be terminated by either party at any time in the event that the other party commits a material breach of any provision of this Agreement and such other party fails to remedy such breach within thirty (30) days after receipt of written notice specifying the breach from the non-defaulting party.
- Early termination pursuant the above paragraphs shall not relieve either party of any obligation arising hereunder prior to such termination including, without limitation, STOCKIST’s obligation to (i) purchase Product covered by purchase orders submitted by STOCKIST to SUPPLIER; and (ii) pay SUPPLIER for the Product shipped or to be shipped pursuant to purchase orders accepted prior to early termination, or SUPPLIER’s obligation to ship Product on accepted orders, or relieve either party of its liability for breach of its obligations pursuant to the terms and conditions of this Agreement incurred prior to such early termination; nor shall it deprive either party of its right to pursue any other remedy available to it
- Notwithstanding the termination or expiration of the STOCKIST appointment all rights and obligations of the parties, which by their nature survive the termination or expiration of the appointment, shall survive the termination or expiration of the appointment.
- termination of the STOCKIST appointment for any reason whatsoever:
- all rights granted by SUPPLIER to STOCKIST will be immediately relinquished by STOCKIST who shall immediately pay all amounts due and owing by it to SUPPLIER forthwith, and in any event within ten (10) days of the date of termination of this Agreement;
- shall promptly return to SUPPLIER all Confidential Information, advertising and promotional material and any other materials and documents given to STOCKIST and relating to this Agreement or otherwise to the business of SUPPLIER;
- shall cease use of SUPPLIER’s Trade-marks and shall thereafter refrain from holding itself out as an authorized STOCKIST of SUPPLIER, STOCKIST will forthwith remove and thereafter discontinue all advertisements, signs and notifications stating or implying that it is a STOCKIST of Product or in any way connected with SUPPLIER and STOCKIST will forthwith at the cost of the STOCKIST transfer any trademarks held in the name of the STOCKIST to the SUPPLIER;
- shall have the option, but not the obligation, to repurchase from STOCKIST any of the Product in STOCKIST’s inventory by refunding to STOCKIST its net cost for such Product, provided, however, that SUPPLIER may set off and deduct from the repurchase price any amount then due and owing by STOCKIST to SUPPLIER;
- shall not be liable to STOCKIST by reason of the proper termination of this Agreement for any damages, whether direct, consequential or incidental, on account of the loss of prospective profits on anticipated sales or on account of expenditures, investments, leases or commitments in connection with the business, arising from such termination of this Agreement;
- If SUPPLIER continues to supply Product to STOCKIST after termination of this Agreement, such supply will not be construed as a waiver of any such termination, or as a renewal of this Agreement.
- In case of termination of this Agreement, SUPPLIER will grant STOCKIST a reasonable period of time to sell its existing stock of Product, which shall in any event not be longer than ninety days (90) from the date of termination of this Agreement.
LIMITATION OF LIABILITY AND INDEMNITIES
- Except as expressly provided in these Terms and Conditions, there are no representations or warranties, express or implied, statutory or otherwise, relating to the Product, including, without limitation, any implied warranty of merchantability or fitness for any particular purpose.The parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Law on the Sale of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods. STOCKIST assumes all risk and liability for any loss, damage or injury resulting from the marketing and sale of the Product, either alone or in combination with other products.
- hereby agrees to defend, indemnify and hold harmless SUPPLIER against any liability, losses, damages or costs (including any legal costs) incurred or suffered by SUPPLIER as a result of any breach, negligent act or omission or wilful default on the part of STOCKIST, or its Representatives arising either directly or indirectly from the performance (or non-performance) by STOCKIST or any of its Representatives of any obligations under this Agreement.
- shall not be liable to the STOCKIST for any special, indirect, consequential, punitive or exemplary damages, including for greater certainty any damages on account of the loss of prospective profits on anticipated sales or on account of expenditures, investments, leases or commitments in connection with the business.
- Notwithstanding anything to the contrary herein, if SUPPLIER notifies STOCKIST that any of the Product needs to be recalled or otherwise withdrawn from the market, and STOCKIST refuses or otherwise fails to do so in a timely fashion, STOCKIST agrees to indemnify SUPPLIER, its affiliates, and their respective officers, directors, employees, agents and shareholders, from and against any and all liability, loses, damages or costs, including legal costs, incurred or suffered by SUPPLIER as a result of any such failure or refusal.
- No failure or omission by SUPPLIER or STOCKIST in the performance of any obligation under these Terms and Conditions shall be deemed a breach or create any liability if the same arises on account of force majeure, which term shall include any event or cause beyond the control of SUPPLIER or STOCKIST, as the case may be, including but not restricted to acts of God, acts or omissions of any government, or agency thereof, rebellion, insurrection, riot, sabotage, invasion, quarantine, restrictions,strike,lock out and transportation embargoes, provided that the party relying on this Section shall forthwith after any such event give written notice to the other party of its inability to perform such obligation and the reasons therefore.If force majeure continues for a period of more than three (3) months, without the parties hereto being able to develop an alternative satisfactory arrangement, then either party has the option of immediately terminating the STOCKIST appointment.
- Any notice, request, demand, consent or other communication required or permitted under the STOCKIST appointment shall be in writing and shall be given by personal delivery (including courier) by prepaid registered or certified mail or email (confirmed by mail) addressed to the party for which it is intended at the address advised by that party and shall be deemed to be given on the day of delivery or transmission if during normal business hours, or, if after business hours, on the next following Business Day, or if mailed by registered or certified mail, on the day which is seven (7) Business Days after such notice is mailed during normal postal conditions.In the event of a postal disruption, any notice mailed will be deemed received on the seventh (7th) Business Day following resumption of regular postal service.
- Either party may change its address for notices and other communications upon notice to the other party in the manner aforesaid.
- The status of STOCKIST shall be that of an independent contractor.Nothing in these Terms and Conditions or the STOCKIST Letter of Appointment shall constitute or be deemed to constitute a partnership or joint venture between the parties or constitute or be deemed to constitute STOCKIST as the agent or employee of SUPPLIER for any purpose whatsoever and STOCKIST shall have no authority or power to bind SUPPLIER in any manner whatsoever or to assume or incur any obligation or responsibility, express or implied, for or on behalf of, or in the name of SUPPLIER, except as specifically provided for herein.STOCKIST shall not list, print or display SUPPLIER’s name in any manner so as to indicate or imply that there is an employer-employee or a principal-agent relationship between SUPPLIER and STOCKIST
- Each of the parties hereto covenant and agree to execute and deliver such further and other agreements, assurances, undertakings or documents, and cause to be done and performed any further and other acts and things as may be necessary or desirable in order to give full effect to the STOCKIST appointment.
- Unless otherwise specifically provided for herein, all monetary amounts referred to herein shall be in lawful Australian dollars.
- The language of all communications between the parties pursuant to the STOCKIST appointment, including notices and reports, will be the English language.
GOVERNING LAW AND ARBITRATION
- The parties agree that the validity, operation and performance of the STOCKIST appointment shall be governed by and interpreted in accordance with the laws of Western Australia and the federal laws of Australia applicable therein (notwithstanding conflict of law rules), and the parties do expressly and irrevocably agree to the jurisdiction of courts of Western Australia with respect to any matter or claim, suit, action or proceeding arising under or related to any matter.To the fullest extend permitted by applicable law, STOCKIST waives and agrees not to assert, as a defense or otherwise, (i) any claim that it is not subject to the jurisdiction of any such court, (ii) any objection that it may now or hereafter have to the laying of venue in any such court, or (iii) any claim that any action, suit or proceeding has been brought in an inconvenient forum.