DISTRIBUTION AGREEMENT This Agreement is dated 2nd August 2018 between Things 4 Bubs Pty Ltd (ABN: 49159183696) of 16 Cambridge St, Paddington NSW 2021 (“T4B”); and (“the Distributor”)
Confidential Information means all information disclosed by one Party (Disclosing Party) to another party (Receiving Party) pursuant to or in connection with this Agreement.
Customer means any customer of T4B (including distributors), a contract with which is entered into as a result of an agent’s introduction or otherwise.
Intellectual Property Rights means all intellectual property rights of the Principal of every sort, whether or not registered or registrable and in any country, including intellectual property of kinds coming into existence after today; and including, without limitation, patents, trade, unregistered marks, designs, copyrights, software, domain names, discoveries, creations and inventions (and all applications for the same or any analogous rights existing anywhere in the world).
Person means legal persona and includes an individual, a collection of individuals, and any sort of corporate body or governmental organisation.
Price(s) means the wholesale price of each Product as stipulated by T4B.
Product(s) means all products offered for sale from time to time by T4B to the Distributor.
Supplier means any business or entity that supplies products to T4B for sale to Customers or Distributors.
Territory means the Distributor’s allocated post code within the country of Australia.
SUMMARY OF AGREEMENT T4B hereby appoints the Distributor as its exclusive distributor in the Territory for the sale of the Products, and the Distributor hereby agrees to act in that capacity, subject to the terms and conditions of this Agreement.
RELATIONSHIP OF PARTIES T4B and the Distributor are independent contractors, and nothing in this Agreement creates any partnership, joint venture, agency, franchise, or employment relationship between them. The arrangement created by this Agreement is not exclusive in that T4B reserves the right to appoint additional distributors within the Territory. This Agreement contains the entire agreement between the parties and supersedes all previous agreements and understandings between the parties. Each party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other term not forming part of this Agreement. All conditions, warranties and other terms implied by the law of any country are hereby excluded as far as the law of each relevant country permits. T4B may assign or transfer the benefit of this Agreement to any third party at its discretion and without reference to the Distributor. The Distributor may describe itself as T4B’s “Distributor” for the Products, but shall not hold itself out as having any other relationship with T4B.
CONDITIONS OF SUPPLY T4B will sell the Products to the Distributor at the Prices which are exclusive of GST. T4B may increase the Prices at any time without notice. T4B will use its reasonable endeavors to supply the relevant Products to the Distributor within a reasonable time of receipt of an order from the Distributor. T4B may from time to time change any specification relating to any of the Products or to the range of Products offered for sale without reference to the Distributor. Each order from the Distributor to T4B constitutes a separate contract, subject to the terms of this Agreement. Upon receipt of each order from the Distributor T4B will inform the Distributor of the estimated delivery date. T4B will use reasonable endeavours to meet the delivery date but it will not be liable for any costs or expenses in the event of delay. The Distributor is free to promote and market the Products in any way that it may think fit and at whatever price it may think fit. The Distributor will not contact any of T4B’s Suppliers or purchase any products directly from T4B’s Suppliers and agrees that this is a material term of this Agreement. The Distributor must purchase a total of twenty (20) units every 90 days in order to maintain exclusivity in the Territory, otherwise T4B has the right to cease supply of the Product to the Distributor.
WARRANTIES T4B does not represent, warrant or undertake that the Products are suitable for any particular use. T4B does not represent, warrant or undertake that it is an expert in any area of knowledge.
DISTRIBUTOR’S MARKETING OBLIGATIONS The Distributor is solely responsible for compliance with all laws relating in any way to the importation, marketing or sale of the Products within the Territory. The Distributor is solely responsible for payment of all costs associated with the importation and sale of the Products in the Territory, including costs of, amongst others, transportation, insurance, import duty and sales tax. The Distributor will use its best endeavours to: promote and sell the Products throughout the Territory; maintain adequate stocks of the Products to meet its customers’ requirements; and comply with all legal requirements from time to time relating to the storage and sale of Products.
PAYMENT TERMS The Distributor shall pay for each batch of Products immediately after the date T4B has sent an invoice and advised the Distributor that such Products are ready for dispatch. Payments will be made by the Distributor in Australian Dollars (AUD) by direct bank transfer, credit card or Paypal to T4B’s account as notified to the Distributor. The Distributor acknowledges and agrees that: (i) the minimum order volume for Products shall be met for each and every order; and (ii) the delivery of the Products shall be at the Distributor’s sole cost and expense as stipulated by T4B.
COMMISSIONS T4B shall pay the Distributor a Commission of 10% of the Product value, for retail and/or wholesale sales referred directly by the Distributor via their affiliate marketing link. Commissions are payable in arrears on the 15th of the month and will be paid to the nominated Paypal account as stipulated by the Distributor. Where the Distributor does not meet monthly purchasing quotas, commissions are considered null and void and the Distributor shall have no claim against T4B for compensation for loss of any income. Commissions are only payable to Distributors who maintain an ongoing active wholesale account with T4B.
RISK IN AND TITLE TO THE PROPERTY The Products are sold subject to T4B’s standard conditions of sale, which include payment in full prior to dispatch, and no exchanges or returns (unless faulty). Prices are “ex works” and accordingly the Distributor is responsible for arranging and paying for transport and insurance. All risk in the Products shall pass to the Distributor as soon as the Products leave T4B’s premises. In respect of any batch of Products, title to such Products shall not pass to the Distributor until T4B has received payment for the Products in full. The Distributor agrees to keep each batch of Products separate from any other goods and the Products shall be identifiable as separate both physically and in the stock records of the Distributor. Where products are deemed faulty, T4B will provide the Distributor a credit on account for all item(s), provided the necessary evidence is provided to T4B and only within a 6 month period from the date of order invoice.
DURATION & TERMINATION This Agreement shall continue until terminated: by one month’s notice in writing by one party to the other; immediately by a party if the other commits any material breach of any term of this Agreement and which, in the case of a breach capable of being remedied is not remedied within 30 days of a written request to remedy it; or immediately by a party if a trustee / administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other party or if a petition is presented or any other step is taken for the winding up of the other party or for the making of an administration or bankruptcy order (otherwise than for the purpose of an amalgamation or reconstruction).
MATTERS AFTER TERMINATION Upon termination of this Agreement for whatever reason, the following clauses shall have effect: T4B will fulfill any orders for Products made by the Distributor before the date of termination. T4B may, within seven days of the date of termination, inform the Distributor that it will re-purchase from the Distributor all or any part of the stocks of the Products held by the Distributor at the date of termination. If it exercises this right the Distributor will sell such requested Products to T4B for the price previously charged by T4B to the Distributor and the Products shall be returned at the cost and risk of T4B. If T4B does not re-purchase all of the Products from the Distributor, the Distributor may continue to sell any remaining Products for a period of 3 months. If this occurs, the obligations of the Distributor as set out in this Agreement shall continue in full force and effect so far as they are applicable to the sale of the balance of his stock of the Products. In any event, within 28 days of the date of termination of this Agreement the Distributor will dispose of or deal with all samples of the Products and all marketing material supplied by T4B in accordance with the directions of T4B except that the Distributor may retain such marketing material as is reasonably necessary to enable it to sell the balance of its stock of the Products; All Intellectual Property rights and licenses granted to the Distributor in this agreement shall immediately terminate, except that the Distributor may continue to use such rights as are reasonably necessary to enable him to sell the balance of his stock of the Products. Invoices for Products ordered before termination of the Agreement shall become payable immediately upon their submission. The Distributor shall have no claim against T4B for compensation for loss of the distribution rights on the termination of this Agreement.
CONFIDENTIALITY The Agent is are aware that in the course of the performance of its obligations under this Agreement the Agent will each have access to and be entrusted with information in respect of the business or operation of the Principal and the Principal’s dealings, transactions and affairs, all of which information is or may be confidential ( “Confidential Information”). Accordingly, the Agent undertakes that both during and after completion of the Agreement: Confidential Information may be disclosed by the Agent to a customer or prospective customer only to such extent as is necessary for the purposes of this Agreement; and the Agent shall at all times during the continuance of this Agreement and after its termination not use Confidential Information of the Principal for any purpose other than the performance of his obligations under this Agreement. Confidential Information may be disclosed by the Agent to: any customer or prospective customer; and any governmental authority specifically requiring or entitled to it only to such extent as is necessary for the purposes of this Agreement or to comply with the law. Subject to the previous sub-paragraph, the Agent hereby undertakes that it will explain to all relevant employees (if applicable) the obligations of confidence contained herein and will procure that such employees take appropriate steps to ensure compliance with these provisions.
INTELLECTUAL PROPERTY T4B hereby authorises the Distributor to use such Intellectual Property as is reasonably necessary in connection with the promotion, marketing and sale of the Products in the Territory.The Distributor agrees that it will not: interfere with any of the Products or their packaging; change or remove any means of identification used on or in relation to the Products; use any of the Intellectual Property in any way, which might prejudice its distinctiveness or its value or in any manner that has not been approved in advance by T4B; or use any trademark of its own in connection with the marketing of the Products without the prior written consent of T4B. The Distributor will inform T4B if at any time the Distributor discovers or suspects any infringement of the Intellectual Property rights of T4B. The Distributor agrees to assist T4B in maintaining the validity and enforceability of the Intellectual Property rights. The Distributor acknowledges that the Intellectual Property rights of T4B remain the property of T4B and that they shall not under any circumstances be transferred to or shared by the Distributor and that accordingly the Distributor shall acquire no rights in respect of them.
LIMITATION OF LIABILITY In the event of any breach of express or implied warranty with respect to the Products, T4B’s liability shall, to the fullest extent permitted by law, be limited to either: replacement of the Products in question; or repayment of the Price. The following provisions set out T4B’s entire liability (including any liability for the acts and omissions of his employees) to the Distributor in respect of: any breach of his contractual obligations arising under this Agreement; and any representation statement or tortious act or omission including negligence arising under or in connection with this Agreement. Any act or omission on the part of T4B falling within this paragraph shall be known as an “Event of Default”. To the fullest extent permitted by law, T4B shall in no circumstances be liable in respect of any Event of Default to the extent it causes any loss of profits, goodwill or any type of special, indirect or consequential loss (including loss or damage suffered by the Distributor as a result of an action brought by a third party) even if such loss was reasonably foreseeable or T4B had been advised of the possibility of the Distributor incurring the same. Subject to the remainder of this clause, T4B’s total liability for any claim arising out of or in connection with this Agreement shall be limited to the Price paid by the Distributor for the relevant Product(s) that is/are the subject of the claim. If a number of Events of Default give rise to substantially the same loss then they shall be regarded as giving rise to only one claim under this Agreement. The Distributor hereby agrees to give T4B not less than 28 days in which to remedy any Event of Default. To the fullest extent permitted by law, T4B shall not be liable for any: loss, claim, expense or other liability arising as a result of the Distributor giving any warranties, assurances and/or other representations which are over and above those given to the Distributor by T4B; loss arising from or in connection with any representations agreements statements or undertakings made prior to the date of this Agreement; or claim, action, proceeding or any other liability to a third party. The Distributor shall indemnify and hold harmless T4B from and against any and all claims, actions or proceedings brought by any third party in relation to the Products.
CONTRACT IS DIVISIBLE Each sub paragraph in this Agreement is independent and severable from each other paragraph and therefore separately enforceable. If any restriction is unenforceable for any reason but would be enforceable if part of the wording were deleted, it will apply with such deletions as may be necessary to make it valid and enforceable.
NOTICES & SERVICE Any notice or other information required or authorised by this Agreement to be given by either party to the other may be given by hand or sent by first class pre-paid post, or electronic means to the other party at the address last provided for that type of communication. Any notice or other information given by post shall be deemed to have been given on the next day after it was posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted, or that it has not been so returned to the sender, shall be sufficient evidence that it has been duly given. Any notice or other information sent by electronic means shall be deemed to have duly sent on the date of transmission. Service of any legal proceedings concerning or arising out of this Agreement shall be effected by causing the same to be delivered to the party to be served at his main place of business (in the case of the Principal) or his registered office (in the case of the Agent), or to such other address as may from time to time be notified in writing by the party concerned.
FORCE MAJURE Neither party shall be liable for any breach of its obligations resulting from causes beyond its reasonable control including fire, natural disaster, war or military hostilities and strikes of employees, and the date of delivery of the goods / payment shall be extended to the extent of any delay resulting from such force majeure event. In such a situation: each of the parties agrees to give notice immediately to the other upon becoming aware of an event of force majeure and such notice to contain details of the circumstances giving rise to it; if a default due to force majeure shall continue for more than 6 weeks then the party not in default shall be entitled to terminate this Agreement; and neither party shall have any liability to the other in respect of the termination of this Agreement as a result of force majeure.
OTHER The headings in this Agreement are for reference only and do not affect its interpretation. In the event of a dispute arising out of or in connection with this Agreement, you agree to attempt to settle the dispute by engaging in good faith with us in a process of mediation before commencing arbitration or litigation. The failure by either party to enforce at any time or for any period any one or more of the terms or conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement. This Agreement represents the entire agreement between the parties with respect to the subject-matter contained herein. The contents of this Agreement shall supersede all other discussions, representations or agreements between the parties. This Agreement shall be interpreted according to the laws of New South Wales and the parties agree to submit to the exclusive jurisdiction of the courts of New South Wales.