Terms and Conditions

We encourage you to read these Terms and Conditions if you have any particular questions just call us on 0478 825 254. By accessing or using the Site, you are acknowledging that you have read, understand, and agree, without limitation or qualification, to be bound by these Terms and Conditions.

 

 

  1. Definitions

1.1  Words used in these terms and conditions have the following 
meanings: 
Agreement means this Distribution Agreement, including the Details. 
Confidential Information means any information communicated by one party to the other in relation to this Agreement and includes, but is not limited to, a party’s Intellectual Property, operations, business or customers, marketing and financial data, commercialisation methodology, concepts, product plans, marketing and financial data, trade secrets, product ingredients, know-how, technical economic or other information. 
Details means the page entitled ”Details” to which these terms form part. 
GST means goods and services tax.
GST Law has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth). 
Insolvency Event means the appointment of a receiver and/or manager, liquidator, administrator or other controller (as defined in the Corporations Act 2001 (Cth)) to the Distributor or any of its assets. 
Intellectual Property means all trade names, trademarks, patents, designs, confidential information or other intellectual property rights from time to time in any way associated with the Products, the Principal’s business or activities, or those of its related entities. 
Intellectual Property Rights means the Principal’s rights in relation to the Intellectual Property. 
Products means the products described in Schedule 1 and such other products in addition to or in substitution of all or any of those products, as agreed between the parties from time to time.

1.2  Expressions used in the Details bear a corresponding meaning in these terms and conditions unless the context requires otherwise.

  1. Appointment

2.1  The Principal appoints the Distributor as its distributor of the Products in the Territory on the terms and conditions of this Agreement.

2.2  The Distributor may appoint sub-distributors in respect of the distribution of the Products in the Territory, with the prior written approval of the Principal.

2.3  The Distributor agrees that the Principal shall not be liable to the Distributor in any way if a third party offers Products for sale in the Territory without the knowledge or consent of the Principal.

2.4  Each party declares that it is free of any commitment towards third parties of any country in respect of any sales in the Territory of products, services or opportunities which could directly compete with the Products.

2.5  During the term of this Agreement, the Distributor must not have any interest in the manufacture, sale, resale, distribution, representation or promotion of any directly competitive products or services in the Territory without the prior written consent of the Principal.

  1. Term

3.1  Subject to the terms of this Agreement, this Agreement shall be for the Initial Term.

3.2  The parties may, by mutual agreement, extend the Initial Term on the same terms and conditions as this Agreement (except that the Minimum Purchase Targets will be renegotiated) for the Renewed Term if:

(a)  the Distributor requests in writing no later than 3 months prior to the expiration of the Initial Term;

(b)  the Distributor has achieved the Minimum Purchase Targets during each year of the Initial Term; and

(c)  the parties agree upon Minimum Purchase Targets for the Renewed Term;

(d)  the Principal is satisfied that there is not at the time of the request nor at the expiration of the Initial Term any existing breach or non-observance of any of the covenants and conditions contained in this Agreement by the Distributor.

3.3 Neither party is obliged to extend the term of this Agreement beyond the Initial Term.

  1. Orders For Products

4.1 The Distributor shall place orders for the Products from time to time by issuing a written purchase order to the Principal.

4.2 The Distributor shall:

(a)  provide the Principal on a monthly basis with a 3 months rolling forecast of the volume of orders likely to be placed with the Principal over the next 3-month period; and

(b)  provide the Principal with a minimum of 2 weeks to satisfy an order.

4.3 Once an order has been accepted by the Principal, it cannot be cancelled by the Distributor except as specifically provided in this Agreement.

4.4 The Principal must:

(a) use its reasonable endeavours to supply the Products according to the Distributor’s purchase orders;

(b) fulfil all orders as speedily as practicable and in accordance with the Distributor’s reasonable requests.

4.5 Estimates of time of arrival must be the best estimate available or known to the Principal but are not of the essence of the delivery.

  1. Delivery and Risk

5.1 The Products will be:

(a)  supplied directly to the Distributor; or

(b)  shipped to the address stated in the Distributor’s purchase order (which in most cases will be directly to the Distributor’s customers),

in the Principal’s standard packaging and delivered by the Principal to the Distributor at the point of delivery as agreed in writing by the parties from time to time.

5.2 The costs of or incidental to delivery including freight, insurance and taxes shall be borne exclusively by the Distributor.

5.3 Risk in the Products passes to the Distributor at the time that the Products leave the Principal’s factory.

5.4 The Distributor must insure the Products from the time that risk passes to the Distributor.

5.5 The Distributor, or such other recipient that the Distributor has directed the Principal to deliver the Products to, must inspect the Products immediately at the point of delivery and within 1 working day after inspection, the Distributor must give written notice to the Principal of any claim that the Products are not in accordance with the order.

5.6 If the Distributor fails to give the notice in accordance with clause 6.5, the Products will be deemed to have been accepted by the Distributor and the Distributor must pay for them in accordance with this Agreement.

  1. Product Variance

6.1  The Principal must give the Distributor not less than 1 months prior written notice (unless otherwise agreed between the parties) of any proposed discontinuance in manufacture, or substantial change in design, production, packaging or finish to the Products.

6.2  The Distributor may vary or cancel any orders placed for but unfulfilled for any proposed Products to be discontinued immediately upon receipt of such product variance notification except to the extent that these orders have been delivered by the Principal.

  1. Returns

7.1  The Principal is not obliged to accept for credit the return of Products which have been accepted by the Distributor unless the Principal authorises their return.

7.2  The Principal shall charge the Distributor a handling fee of 15% of the Purchase Price for any product returns agreed to by the Principal arising out of clause 8.1. All delivery fees and freighting charges shall be borne by the Distributor.

  1. Pricing and Payment

8.1  The price at which the Products are invoiced to the Distributor will be based on the Principal’s current published price list for the Products. The Principal agrees to give the Distributor at least 14 days’ notice of any price increase on Products.

8.2  The Principal will invoice the Distributor, and the Distributor must pay the Principal for the Products within the time stipulated in the Details.

8.3  The Distributor is fully responsible for obtaining payment from their customers.

8.4  The Distributor agrees, in addition to the prices for the Products, to be responsible for the payment of:

(a)  all levies, duties, customs, or taxes of any nature in connection with the Products;

(b)  costs of or incidental to delivery including freight, insurance and taxes

  1. Warranties

9.1 Subject to this clause 13, the Principal excludes any other condition or warranty which would otherwise be implied in relation to the supply of the Products.

9.2 To the extent permitted by law, the liability of the Principal is limited, at its option to:

(a)  the replacement or repair of Products or the supply of equivalent goods; or

(b)  the payment of the cost of replacing Products or of acquiring equivalent goods.

9.3 Subject to clause 13.2, Products supplied by the Principal may be covered by written warranty. To the extent permitted by law, such a warranty is in substitution of all other terms, conditions, warranties and representations, express or implied by statute or otherwise.

9.4 The Distributor is responsible for ensuring that Products will:

(a)  comply with any applicable industry and minimum standards 
in the Territory; and

(b)  be fit for the purpose for which they are intended; and

(c)  agrees that the Principal makes no representations and warranties in relation to the above.

  1. Compliance With Laws

The Distributor shall:

(a)  duly and punctually comply with all governmental and municipal requirements relating to the sale of the Products in the Territory;

(b)  not be a party whether directly or indirectly to the doing of any act, matter, omission or thing whereby the goodwill of the business of the Principal or of the Products or the Intellectual Property relating to the Products may be endangered, jeopardised or prejudicially affected in any manner whatsoever; and

(c) conduct its business in a proper and business-like manner so as to ensure that it remains of good character and reputation.

  1. Indemnity

The Distributor shall indemnity and hold harmless the Principal against all liability, losses, claims and expenses which may result by reason of any breach by the Distributor of the terms of this Agreement or by reason of any use of the Products other than in accordance with the applicable user manual accompanying the Product by the Distributor or any person to whom the Products were supplied (whether directly or indirectly) by the Distributor.

  1. Security Registrations

12.1 This clause applies to the extent that the Principal’s interest in any Products is a security interest.

12.2  The Principal may apply to register a security interest in the Products. The Distributor waives its rights to receive notice of any verification of the registration.

12.3  The Principal can apply amounts it receives from the Distributor towards amounts owing to it in such order as the Principal chooses.

12.4  If the Distributor defaults in the performance of its payment obligations to the Principal under this Agreement and does not promptly remedy that default, provided that such default is not a result of a genuine dispute between the parties the Principal may enforce its security interest in the Products by exercising all or any of its rights under this Agreement.

12.5  The Distributor must promptly do anything reasonably required by the Principal to ensure that the Distributor’s security interest is a perfected security interest and has priority over all other security interests in the Products.

12.6  Nothing in this clause is limited by any other provision of this Agreement or any other agreement between the parties.

13.1  In this clause 20, PPSA means the Personal Property Security Act 2009 (Cth). If a term that is used in this clause has a particular meaning in the PPSA, it has the same meaning in this clause.

13.2  This clause applies to the extent that the Principal’s interest in any Products is a security interest.

13.3  The Principal may apply to register a security interest in the Products. The Distributor waives its rights under section 157 of the PPSA to receive notice of any verification of the registration.

13.4  The Principal can apply amounts it receives from the Distributor towards amounts owing to it in such order as the Principal chooses.

13.5  If the Distributor defaults in the performance of its payment obligations to the Principal under this Agreement and does not promptly remedy that default, provided that such default is not a result of a genuine dispute between the parties the Principal may enforce its security interest in the Products by exercising all or any of its rights under this Agreement or the PPSA. To the maximum extent permitted by law, the following provisions do not apply to the enforcement by the Principal of its security interest in the Products: sections 95, 118, 121(4), 125, 130, 132(3), 132(3)(d), 132(4), 135, 142 and 143.

13.6  The Distributor and the Principal agree not to disclose information of the kind mentioned in section 275(1) of the PPSA, except in circumstances required by sections 257(7)(b) – (e) of the PPSA.

13.7  The Distributor must promptly do anything reasonably required by the Principal to ensure that the Distributor’s security interest is a perfected security interest and has priority over all other security interests in the Products.

13.8  Nothing in this clause is limited by any other provision of this Agreement or any other agreement between the parties.

  1. General

14.1  Assignment

(a)  The Distributor must not assign this Agreement or any of its rights or obligations under this Agreement without obtaining the Principal’s prior written consent, which the Principal may refuse in its absolute discretion, or which the Principal may grant on certain terms.

(b)  The Principal may assign or novate its interest in this Agreement without the consent of the Distributor.

14.2  Force Majeure 
Neither party will be liable to the other for any failure to comply with this Agreement where the failure is due to circumstances which are not directly within the party’s control, including acts of terrorism, natural disaster, industrial action, or a failure of a supplier, public utility or common carrier, provided the affected party diligently commences and continues its obligations under this Agreement promptly upon the removal of such cause.

14.3  Entire Agreement 
This Agreement constitutes the full and complete understanding between the parties with respect to its subject matter.

14.4  Further Assurances 
Each party must promptly sign all documents and do all things that another party from time to time reasonably requests to effect, perfect or complete this Agreement and all transactions incidental to it.

14.5 GST

(a)  Unless otherwise stated, all prices or other sums payable or consideration to be provided under this Agreement are exclusive of GST.

(b)  If GST is imposed on or in respect of any supply made under or in connection with this Agreement then the consideration payable for that supply by the recipient of the supply is increased by an amount determined by multiplying the consideration otherwise payable by the rate at which GST is imposed. Amounts payable under this clause will be payable at the same time the other consideration for the supply is payable.

14.6 Governing Law

This Agreement is governed by and construed in accordance with the laws of Queensland, Australia.

14.7 Variation

This Agreement can only be varied by agreement in writing signed by the Principal and the Distributor.