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ASICS OCEANIA PTY LTD (ABN 59 003 091 389) of 6 Darling Street, Marsden Park, New South Wales, 2765, Australia (ASICS) agrees to supply Products to you the Customer subject to the terms and conditions of this Agreement.
You have been directed to this Agreement by ASICS, including by means of an Order Confirmation, Invoice, Price list or other source supplied by ASICS with the purpose of establishing the terms and conditions that will apply to any and all Products that ASICS agrees to supply to you.
Unless otherwise agreed by ASICS in writing this Agreement will apply to each supply of Products and ASICS may refuse in its sole discretion to make subsequent supplies of Products unless the Customer enters into the ASICS Retailer Trading Account Agreement.
As a Customer and purchaser of ASICS’ Products you agree that ASICS will not be subject to any terms and conditions that you may issue, including any standard terms or terms of trade used by you the Customer when purchasing goods or services or both.
You as Customer acknowledge and agree that unless you seek to amend the terms of this Agreement prior to the Cancellation Date of the ASICS’ Products to be supplied, you are deemed to accept the terms of this Agreement upon such Cancellation Date for all deliveries of the Products in whole or in part. ASICS is not bound by any amendment to this Agreement that you request unless ASICS agrees in writing.
The Customer declares that it has never been subject to an Insolvency Event and is not presently subject to any action, claim or proceedings by any officer, employee, agent, contractor, customer or other third party.
The Directors of the Customer declare that they are not discharged or undischarged bankrupts and have not been charged with any serious or indictable criminal offence.
Unless otherwise defined all capitalised words or expressions used in this Agreement have the meaning given to them in the Schedules. Defined words or expressions in one Schedule may be used in the other Schedules.
IF YOU ORDER ANY PRODUCTS FROM ASICS YOU AGREE THAT THE TERMS AND CONDITIONS OF THIS AGREEMENT WILL APPLY AS SET OUT ABOVE AND IN THE ATTACHED SCHEDULES.
SCHEDULE 1 – TERMS OF TRADE
Unless the context indicates otherwise and in addition to the terms defined in the Internet Policy:
Agreement means this Terms of Trade (Schedule 1), the Internet Policy (Schedule 2) and the cover introduction page.
Approved Internet Web Sites for Customer is defined as “Web Sites” in the Internet Policy.
Approved Trading Address(es) for Customer means any Customer outlets approved by ASICS for the sale of Products in an Order Confirmation, Invoice or other document issued by ASICS to the Customer from time to time.
Approved Trading Hours for Customer has the meaning set out in Schedule 1, ASICS Account Details.
ASICS Retailer Trading Account Agreement means the execution version of this Agreement that includes certain information about the Customer and establishes a trading account between the Customer and ASICS when it is fully signed by each of them.
Associated Entity means:
B2B Portal means the internet business portal that ASICS supplies to some approved Customers from time to time, located at URL www.b2b.asics.com.au;
Business Day means a day that is not a Saturday, a Sunday, nor a public holiday in Sydney, New South Wales, Australia or in the State or Territory where the registered office of the Customer is located.
Cancellation Date means the date that is five (5) Business Days after the date of the Order Confirmation.
CIF means ‘Cost, Insurance and Freight’ as defined in Incoterms 2010 published by the International Chamber of Commerce.
CIP means ‘Carriage and Insurance paid to destination’ as defined in Incoterms 2010 published by the International Chamber of Commerce.
Collection Date means the date estimated in the Order Confirmation that the Customer can collect the Products from ASICS.
Commencement Date means the date that the Customer first requests the supply of Products and if that date is disputed, the Cancellation Date of the Agreement.
Confidential Information means all details and information (whether provided orally, in writing or by any other means by any person) relating to the commercial and business affairs of the disclosing person (Discloser) and includes all:
The following is not Confidential Information:
Information is not to be considered to be in the public domain for the purposes of this Agreement unless it is lawfully available to the general public from a single source without restriction on its use or disclosure.
Confidentiality Agreement means any confidentiality agreement between ASICS and the Customer dated on or before the date of this Agreement if applicable.
Consequential Loss means any form of incidental, indirect, special, exemplary, punitive or consequential Loss including any third party Loss, loss of profits, loss of production, increased operating costs, loss of revenue, loss of data, loss or denial of opportunity, loss of goodwill, loss of reputation, loss of anticipated savings, loss of interest or credit rating and pure economic loss; which is not a natural or normal consequence of a cause of action suffered or incurred by any person whether arising in contract or tort (including negligence) or under any statute.
Contract means the contract formed between ASICS and Customer by the acceptance of an Order Confirmation or the deemed acceptance of an Order Confirmation pursuant to clause 2.6 or acceptance of an Invoice pursuant to clause 2.9.
Control has the meaning set out in section 50AA of the Corporations Act 2001 (Cth) and includes a power or control that is direct or indirect or that is, or can be, exercised as a result of, by means of, or by the revocation or breach of a trust, an agreement, a practice or any combination of them, whether or not they are enforceable. It does not matter whether the power or control is express or implied, formal or informal, exercised alone or jointly with another person.
Delivery Date means the date estimated in the Order Confirmation that ASICS will deliver the Products to the Customer.
EXW means ‘Ex Works’ as defined in Incoterms 2010 published by the International Chamber of Commerce.
GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time (“GST Act”) or any replacement or other relevant legislation and regulations, and words used which have particular meaning in the “GST law” (as defined in the GST Act, and also including any applicable legislative determinations and Australian Taxation Office public rulings) have the same meaning where the context requires.
Initial Term means a period of 18 months from the initial Order Confirmation or if no Order Confirmation is issued then from the first Invoice.
Insolvency Event means, in relation to a party:
Intellectual Property means all present and future rights, title and interest conferred by statute, common law or equity in or in relation to copyright, trade marks, service marks, designs, inventions (including patents), circuit layouts, business and domain names, and Confidential Information, whether or not now existing and whether or not registered or registrable and includes:
Internet means the worldwide web of linked computers including any private or proprietary network that connects to the worldwide network through any bridges, gateways or other devices.
Internet Policy means the ASICS Internet Policy as set out in Schedule 4 of this Agreement.
Invoice means the tax invoice issued by ASICS to Customer in which these Terms of Trade are deemed to be incorporated.
Loss means all liabilities, losses, damages, expenses and costs (including legal costs and disbursements on a full indemnity basis and whether incurred or awarded), of any kind and nature whether arising in contract or tort (including negligence) or under any statute.
Marketing Material has the meaning set out in the ASICS’ Internet Policy and includes all signs, three dimensional logos and other materials supplied by ASICS or that feature any of ASICS’ Intellectual Property, including such items that are created by Customer.
Moral Rights means:
Order has the meaning set out in clause 2.1 of these Terms of Trade.
Order Confirmation means ASICS notification to Customer of ASICS acceptance of the Order as set out in clause 2.3 of these Terms of Trade.
Personal Guarantee means the document set out in Schedule 3 to this Agreement.
Pre-Order means an Order that is issued by Customer a minimum of 6 months before the Delivery Date of the Products. A Pre-Order includes ‘future bookings’ and ‘indents’ and all such words and expressions for advanced Orders, provided that such Orders are placed a minimum of 6 months before the Delivery Date of the Products.
Price means the wholesale price for Products offered by ASICS to Customer from time to time as determined by ASICS in its sole discretion.
Product means all genuine ASICS products supplied by ASICS in the Territory as varied from time to time in the sole discretion of ASICS, unless some restriction on the range of products to be supplied to the Customer is set out in an Order Confirmation, Invoice or other document issued by ASICS to Customer.
Recipient means either ASICS or Customer in their capacity as receivers of Confidential Information from the other party or the Related Bodies Corporate of the other party or from any person.
Related Body Corporate has the meaning given in the Corporations Act 2001.
Security Interest means:
Term has the meaning set out in clause 19.1.
Territory means Australia if ASICS permits the Customer to operate an Approved Internet Web Site(s), otherwise the territory is limited to the geographical reach of the Approved Trading Address(es) and Approved Trading Hours of the Customer in the applicable State or Territory of Australia.
2.1 Customer may at any time place orders for Products by completing and sending to ASICS a written order, by way of facsimile or email or (if authorised by ASICS) by means of the ASICS B2B Portal (Order), indicating the following:
2.2 Any amendments or variations to an Order received by ASICS must be approved by ASICS in writing to be effective. Any amendments or variations to an Order received by ASICS after the Cancellation Date or after ASICS issues an Invoice will be deemed rejected.
2.3 If ASICS elects to respond to an Order, ASICS will send Customer an Order Confirmation, by way of facsimile or email or (if Customer is authorised by ASICS to use the ASICS B2B Portal) by means of the ASICS B2B Portal, indicating the following:
2.4 ASICS may refuse an Order in its sole discretion. If ASICS does not respond to an Order within ten(10) Business Days of receipt the Order is deemed rejected by ASICS.
2.5 ASICS may withdraw an Order Confirmation on or before the Delivery Date or the Collection Date in its sole discretion.
2.6 The Customer will be deemed to accept an Order Confirmation unless the Customer rejects the Order Confirmation in writing on or before the Cancellation Date.
2.7 Any terms and conditions attached to or incorporated in any Order supplied by Customer will not form part of the Contract unless such terms are confirmed in the Order Confirmation or in writing before the Cancellation Date by ASICS.
2.8 Despite clause 2.4, ASICS reserves the right to accept the Order for up to twenty (20) Business Days after receipt of the Order and the Customer will be deemed to accept the Order Confirmation unless the Customer rejects the Order Confirmation in writing on or before the Cancellation Date.
2.9 If the Customer issues an Order and ASICS fails to send an Order Confirmation, the Customer will not unreasonably refuse to accept subsequent delivery of the Products by ASICS (and the corresponding Invoice) where such delivery generally complies with the Order. The right of the Customer to reject some or all of the Products under clause 4 does not negate the delivery by ASICS.
2.10 Despite clause 2.6, if the Customer Pre-orders and ASICS issues an Order Confirmation more than 45 days before the Delivery Date, Customer may subsequently cancel the Pre-Order at any time up to and including 45 days before the Delivery Date. If ASICS issues an Order Confirmation up to and including 45 days before the Delivery Date of a Per-Order then clause 2.6 applies. Pre-Orders are not subject to collection by the Customer but will otherwise be treated the same as Orders under this clause 2.
3.1 ASICS shall use reasonable commercial endeavours to deliver the Products to the Customer on the Delivery Date or as stated in the Invoice subject to the following:
3.2 ASICS agrees to deliver Products free into the Customer’s Approved Trading Address(es) for Orders that exceed $250 (exclusive of GST). All Orders (other than Pre-Orders) that are less than $250 (exclusive of GST) will be charged a flat delivery fee of $10 (exclusive of GST) per Contract. ASICS will not charge a delivery fee for Pre-Order Products.
3.3 Any Delivery Date or Collection Date made known by ASICS to Customer is an estimate only and ASICS will not be liable for a late delivery, partial delivery or a non-delivery. Under no circumstances shall ASICS be liable for any Loss, damage or delay occasioned to Customer or the Customer’s customers or clients arising from late, partial or non-delivery.
3.4 The time for delivery of the Products is not of the essence of this Agreement.
3.5 Delivery may be made in instalments. Each instalment will be treated as a separate delivery with the Price being apportioned in accordance with the proportion of the Products delivered.
3.6 Where the Products are for delivery by instalments, any defect in an instalment shall not be grounds for cancellation of the remainder of the instalments and Customer shall be bound to accept delivery thereof.
3.7 Customer must hold and maintain in reasonable condition all packaging materials supplied with the Products for a period of ten (10) Business Days after receipt of the Product by the Customer or its service agent. ASICS reserves the right to collect such packaging materials from the Customer during this period.
4. Acceptance of Products
4.1 Customer shall inspect all Products upon receiving the Products, and must immediately notify ASICS of any visible damage to the packaging of the Product and must also give notice to ASICS in writing within ten (10) Business Days of any defects, damages, shortages or anything else not in accordance with the corresponding Invoice.
4.2 If Customer fails or elects not to notify ASICS of any defect in the Products supplied or other material non-compliance with the Invoice in accordance with clause 4.1, Customer shall be deemed to have accepted the Products and the Products shall be conclusively presumed to be in accordance with these Terms of Trade and free from any defect or damage.
4.3 If Customer notifies ASICS of any defect in the Products supplied or other material non-compliance with the Invoice in accordance with clause 4.1, Customer shall not carry out any remedial work to the alleged defective Products without first obtaining the written consent of ASICS to do so. The Customer shall give ASICS a reasonable opportunity of not less than 20 (twenty) Business Days from delivery to rectify any material non-compliance with the Invoice notified by the Customer in accordance with clause 4.1.
4.4 If ASICS using reasonable commercial endeavours is unable to rectify any notified defect or material non-compliance with the Invoice to the reasonable satisfaction of the Customer, the parties will determine a reduction in the purchase Price by agreement and clause 14 will apply.
4.5 Any and all written statements made by ASICS as to weight, quantity, dimension, size, performance characteristics and any other description of the Products are approximate and should be construed as such by the Customer.
Price and Payment
5.1 The Price for the Products is inclusive of:
unless the parties agree otherwise in writing.
5.2 Customer will pay the Price for Products ordered by and delivered to it in accordance with clauses 2 and 3 with such payment to be made on or before the end of the month following the date of the ASICS’ Invoice. Time is of the essence for these payments.
5.3 Customer will pay the Price for Products ordered and collected by it in accordance with clauses 2 and 3 prior to or upon collection of the Products. If ASICS permits the Customer to collect Products without prior or immediate payment then payment must be made on or before the end of the month following the date of the ASICS’ Invoice. Time is of the essence for these payments.
5.4 For any agreed settlement discount to apply, payment must be made strictly in accordance with clauses 5.2 and 5.3.
5.5 The Price and any other payments made by Customer to ASICS under this Agreement are to be made in Australian currency.
5.6 The Price and any other payments made by Customer to ASICS under this Agreement will be made in accordance with the Invoice and if no payment direction is set out in the Invoice then by bank draft made payable to ASICS or, at ASICS’ option, direct deposit into an Australian bank account notified by ASICS in writing at least two Business Days prior to the due date.
5.7 Customer may not assert or exercise any right of set-off against any monies payable by Customer to ASICS under these Terms of Trade or under any other agreement or arrangement between ASICS and the Customer.
5.8 Payment is only received by ASICS when it receives cash or when the proceeds of other methods of payment are credited and cleared to ASICS’ bank account.
5.9 If any payment owed by ASICS is not paid when due, it shall bear interest, at the prescribed rate pursuant to the Civil Procedures Act 2005 (NSW), calculated on a daily basis from the date on which it is due until it is paid.
5.10 Without limitation to clause 5.9, Customer shall fully indemnify and reimburse ASICS for all Loss, including legal and debt recovery costs, that is incurred by ASICS for the collection of late payments by the Customer under clauses 5.2 and 5.3.
5.11 Any and all expenses, costs and charges incurred by the Customer in the performance of its obligations under this Agreement shall be paid by the Customer unless ASICS has expressly agreed beforehand in writing to pay such expenses, costs and charges.
5.12 The Customer shall be responsible for the administration, collection, remittance and payment of any and all taxes, duties, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the purchase, receipt, importation, sale or other disposal of the Products.
5.13 Any current or future tax or governmental charge (or increase in same) affecting ASICS’ costs of production, sale, delivery or shipment, or which ASICS is otherwise required to pay or collect in connection with the sale, purchase, delivery, storage, processing, or use of Products, shall be for the Customer’s account and shall be added to the Price of the Product or forwarded to the Customer for payment.
5.14 Customer shall solely determine the price at which it sells the Products. The Customer will not use the Products as a loss leader.
5.15 Any references by ASICS to the retail price of the Products are recommendations only.
5.16 ASICS may change, including increase, the Price of Products at any time upon written notice to the Customer including after an Order Confirmation is sent or upon delivery of the Products.
6.1 Unless GST is expressly included, the consideration expressed to be payable under any other paragraph of this Agreement for any supply made under or in connection with this Agreement does not include GST.
6.2 Each party agrees to do all things, including providing tax invoices and other documentation that may be necessary or desirable to enable or assist the other party to claim any input tax credit adjustment or refund in relation to any amount of GST paid or payable in respect of any supply made under or in connection with this Agreement. A party is not obliged to make a payment under this Agreement if the other party does not provide a valid tax invoice.
6.3 If a payment to a party under this Agreement is a payment by way of reimbursement or indemnity and is calculated by reference to the GST inclusive amount of a loss, cost or expense incurred by that party, then the payment is to be reduced by the amount of any input tax credit to which that party is entitled in respect of that loss, cost or expense before any adjustment is made for GST.
7. Credit Trading Account Application
7.1 ASICS will only offer credit terms upon execution of the ASICS Retailer Trading Account Agreement and subject to the prior written approval of ASICS, together with any other documentation required by ASICS, such as a personal guarantee or other surety.
8.1 General Obligations
Customer agrees at all times during the Term to:
8.2 Point of Sale
Customer will not sell the Products from any places other than the Approved Trading Address(es) and any other outlet approved by ASICS in writing. Without limitation to the foregoing, Customer will not sell the Products in any market stall or a pop-up store without the approval of ASICS in writing. Customer will not sell the Products outside the Approved Trading Hours for Customer for each Approved Trading Address unless approved by ASICS in writing. A breach of this condition may result in immediate termination of this Agreement under clause 19.4.
8.3 Territorial Restrictions
Customer will not sell or offer for sale the Products outside the Territory, directly or indirectly, by itself or through any other party including by means of the Internet. Customer will inform ASICS if the Customer expands its retail operations outside of the Territory or uses any Internet based sales other than the Approved Internet Web Site(s) for Customer. A breach of this condition may result in immediate termination of this Agreement under clause 19.4.
8.4 Late Payment
Customer acknowledges and agrees that time is of the essence when Customer is required to meet its payment obligations under this Agreement, including under clauses 5.2 and 5.3. A breach of this condition may result in immediate termination of this Agreement under clause 19.4.
Customer will do everything reasonably within its control to guard against selling the Products to resellers who may on-sell the Products inside or outside of the Territory. A breach of this condition may result in immediate termination of this Agreement under clause 19.4.
8.6 Change in Control
Customer will inform ASICS immediately of any changes or proposed changes in the ownership or Control of the Customer. A breach of this condition may result in immediate termination of this Agreement under clause 19.4.
8.7 Violation of the Law
Customer will inform ASICS immediately of any violation of the law in the Territory resulting in a judgment against the Customer or a criminal conviction for the Customer or of any of its officers or employees, other than minor traffic offences. A breach of this condition may result in immediate termination of this Agreement under clause 19.4.
8.8 Counterfeit Products
Customer will only sell Products that are genuine ASICS’ products. Customer will not source counterfeit products purporting to be authorised by ASICS or that feature the ASICS’ trade mark where such use is unauthorised, from third parties for sale in the Territory. A breach of this condition may result in immediate termination of this Agreement under clause 19.4.
8.9 Quarterly Forecasts
Customer will supply ASICS with quarterly written forecasts completed in good faith and in accordance with the reasonable instructions of ASICS reflecting the quantities of Products that the Customer genuinely intends to buy from ASICS during the next quarter with such forecasts to be submitted to ASICS within five (5) Business Days of the end of each quarter.
8.10 Customer Minimum Requested Purchase Amounts
Customer agrees to maintain on its own account an inventory of the Products at levels which are appropriate and adequate for the Customer to meet demand for the Products throughout the Territory. Customer agrees to maintain all stocks of Products which it holds in conditions appropriate for their storage and to provide adequate security for the Products all at its own cost.
8.12 Stock Inspection
Customer agrees to allow ASICS to inspect the inventory of the Products held by the Customer at the Approved Trading Address for Customer and at all other locations where the Products may be stored to check compliance with clause 8.11 and the terms of this Agreement. The Customer agrees to give ASICS immediate access upon request and if immediate access must be refused by the Customer then within two (2) days of ASICS’ request. Each party will bear its own costs of the inspection. A breach of this condition may result in immediate termination of this Agreement under clause 19.4.
Customer agrees to keep full and proper books of account and records showing clearly all sales, transactions, returns and any proceedings relating to the Products and to allow ASICS on reasonable notice access to the Customer’s accounts and records relating to the Products for the purpose of inspection and Customer will provide, at the request and reasonable cost of ASICS, relevant accounting information and records.
Customer must comply with all applicable laws, regulations and industry standards relating to the sale of the Products in the Territory.
8.15 Account Details
9. E-Retailer and Internet Policy
9.1 Customer may only supply and sell the Products on the Internet including on any website owned or Controlled by the Customer with the prior written consent of ASICS in accordance with this clause 9 and subject to the Internet Policy.
9.2 ASICS may withhold consent for the Customer to use the Internet in connection with the sale of the Products despite agreeing to supply the Customer with Products. The Customer acknowledges that the mere inclusion of the Internet Policy in this Agreement does not automatically grant the Customer the right to sell Products on the Internet. For the Customer to sell Products on the Internet ASICS must grant approval in accordance with clause 9.3. If ASICS grants Customer the right to sell the Products on the Internet at any time, the Customer agrees to be bound by the Internet Policy.
9.3 ASICS may grant consent for the Customer to use the Internet in connection with the sale of the Products by asking the Customer to sign the Internet Policy or by asking the Company to sign the ASICS Retailer Trading Account Agreement or by including a statement granting consent for sales on the Internet by means of an Order Confirmation, Invoice or other document issued by ASICS to the Customer from time to time. The consent of ASICS is conditional on the Customer ensuring at all times that there is an obvious link or relationship between the Approved Internet Web Site(s) for Customer and the Approved Trading Address(es) of the Customer. Without limitation to the foregoing, the Customer will not use third party websites to sell the Products including EBAY.com.au, Gumtree.com.au, Shopify.com.au, Scoopon.com.au, TheActive.com.au, TradingPost.com.au, Amazon.com.au and CatchOfTheDay.com.au (this list is not exhaustive). Subject to the Internet Policy, ASICS acknowledges that the necessary link or relationship between the Approved Internet Web Site(s) for Customer and the Approved Trading Address(es) of the Customer may be demonstrated by displaying the Approved Trading Address(es) of the Customer on the Approved Internet Web Site(s) for Customer and reflecting the name of retail outlet(s) of the Approved Trading Address(es) of the Customer in the domain name address or uniform resource locator of the Approved Internet Web Site(s) for Customer.
9.4 Customer acknowledges and agrees that approval for Internet sales remains at ASICS’ sole discretion and any approval may be withdrawn on twenty (20) Business Days’ notice in writing by ASICS or in accordance with the Internet Policy, as amended from time to time.
9.5 Customer acknowledges and agrees that a breach of this clause 9, including any sales on the Internet without ASICS’ approval under clauses 9.2 and 9.3 or in contravention of the terms of the Internet Policy where approval to sell by means of Internet is given, may result in immediate termination of this Agreement under clause 19.4.
9.6 Without limitation to the remaining provisions in this clause 9, the Customer acknowledges and agrees that the sale of any Products from the Web Site resulting in a supply of the Products outside the Territory, may result in immediate termination of the right to sell the Products by means of the Internet or the immediate termination of this Agreement under clause 19.4, as ASICS may decide in its sole discretion.
10. Customer Insurance
10.1 Customer must maintain, at its own cost, comprehensive insurance policies for the performance of its obligations under this Agreement to the satisfaction of ASICS, including public and product liability insurance for no less than $10 million per claim or such other amount agreed by ASICS in writing.
10.2 Customer must ensure, in relation to each insurance policy instigated pursuant to clause 10.1 that it is taken out and maintained with a reputable insurer for the full reinstatement or replacement value; names ASICS as a direct beneficiary or additional insured party; provides that any failure by Customer to observe the terms of a policy does not prejudice ASICS and the policy or policies cannot be cancelled or amended without ASICS written consent during the Term and for a period of 3 years after the Term.
10.3 ASICS may request Customer to produce written evidence of such insurances from time to time (including certificates of currency of insurance from the insurer).
10.4 Customer must inform ASICS in writing immediately it becomes aware of any actual, threatened or likely claims under any of the insurances referred to in clause 10.1 that could materially reduce the available limits of indemnity.
10.5 Customer’s insurance obligations under this clause do not limit its liability under this Agreement.
11. ASICS’ Obligations
11.1 Sales Support
ASICS may conduct training for Customer sales personnel, upon request, at ASICS then-current fees. The times and locations for any such training will be agreed by the parties or failing agreement will be determined by ASICS.
11.2 Market Development Funds
ASICS may participate with Customer in market development activities and may provide Customer with marketing funds in its sole discretion. ASICS is not liable for any marketing expenses incurred by the Customer without its prior written approval.
12. Title and Passing of Risk
12.1 Subject to clauses 2 and 3.1:
12.2 Notwithstanding delivery of the Products to Customer, until Customer has effected full payment for the Products and any other products previously supplied by ASICS:
12.3 Customer is not an agent of ASICS in any permitted sale of the Products by Customer.
12.4 In the event Customer breaches any term of the Agreement, ASICS may upon written notice to Customer retake possession of the Products and may without notice sell the Products on such terms and in such manner as ASICS determines and ASICS will be entitled to deduct all expenses incurred.
12.5 For the purposes of recovering possession and without limiting the generality of the foregoing, Customer irrevocably authorises and licenses ASICS and its servants and agents to enter any premises where any Products may be stored and to take possession of the Products.
12.6 Customer will provide all relevant information and assistance reasonably required by ASICS to ensure ASICS gains access to and takes possession of the Products in accordance with clauses 12.4 and 12.5.
12.7 Customer may make no claim against ASICS in respect of any entry to its premises or disposal of the Products pursuant to clauses 12.4 and 12.5.
12.8 If Customer fails to comply with clause 12.2(c), and mixes or converts Products to other objects whether by the process of manufacture or otherwise and whether or not such mixture or conversion renders the Products unidentifiable, ASICS will remain entitled to retake possession of the Products, if possible.
13.1 Unless otherwise defined in this Agreement, the terms and expressions used in this clause 13 have the meanings given to them in the Personal Properties Securities Act 2009 (PPSA).
13.2 The Customer acknowledges and agrees that they grant to ASICS a Security Interest in the Products, including any Accounts and Accessions, pursuant to clause 13 of this Agreement.
13.3 The Customer acknowledges that any purchase by the Customer on credit terms from ASICS, or any retention of title supply pursuant to this Agreement, constitute a purchase money security interest as defined in the PPSA.
13.4 In consideration for ASICS providing Products to the Customer under these Terms of Trade and other valuable consideration, the Customer hereby grants to ASICS:
13.5 Without limiting clause 13.4 above, all Products supplied by ASICS to the Customer shall remain the sole and absolute property of ASICS and shall not pass to the Customer until the Customer has paid to ASICS all money due in respect of the Products and any other money owing by the Customer to ASICS BUT shall be at the Customer’s risk from the time of delivery to the Customer.
13.6 If any of the following events occur:
to the extent that ASICS retains title in respect of such goods, ASICS has by itself or by its employees and/or agents the immediate and unrestricted right to enter the Customer's premises or any other premises where the Products are reasonably thought to be stored, without liability for trespass or any resulting damage, to examine the goods, conduct a stocktake or re-take possession of the Products and keep or dispose of them. The Customer shall indemnify ASICS from any claims made by any third party as a result of such exercise of ASICS’ rights.
13.7 Without limiting clause 13.6 above, after giving 24 hours notice to the Customer, ASICS will be entitled (by its employees and/or agents) to enter upon the Customer’s premises between 9:00 am and 5:00 pm on all days when those premises would ordinarily be open to the public to inspect its Products, take stock and verify invoices and delivery dockets.
13.8 The Customer may sell and deliver all Products supplied by ASICS in the ordinary course of the Customer’s business provided that:
The authority granted to sell goods in the ordinary course of the Customer’s business pursuant to this clause 13.8 is only for sales where immediate payment is made to the Customer by cash, cheque with cleared funds or credit card.
13.9 ASICS may register on the Personal Property Securities Register any and all Security Interests granted under these Terms of Trade. The Customer waives any right it may have to receive from ASICS a copy of any Financing Statement, Financing Change Statement or Verification Statement registered or received by ASICS in respect of the Security Interests created under these Terms of Trade.
13.10 The Customer agrees:
13.11 The Customer hereby appoints and authorises ASICS as its attorney to sign in the Customer’s name all documents which ASICS reasonably considers necessary to enforce or protect its rights and powers under these Terms of Trade and to protect, preserve and enforce its rights under the PPSA.
13.12 Until the Customer has made full payment for the Products supplied to it by ASICS, the Customer must not without the prior written consent of ASICS, grant any other Security Interest in respect of the Products or sale proceeds of the Products to any third party or permit any lien over the Products or the sale proceeds of the Products.
13.13 As between debts owed to ASICS secured by Purchase Money Security Interests and other debts, ASICS will be entitled to apply monies received from the Customer against the other debts first at its sole discretion and despite any direction from the Customer to the contrary.
13.14 The Customer agrees that, to the maximum extent permitted by law, sections 95 (to the extent it requires a secured party to give notices to the grantor), 96, 117, 118 (to the extent it requires a secured party to give notices to the grantor), 120(2), 121(4), 123(2), 123(3), 125, 127(to exercise any right of priority against ASICS in respect of the Products), 129(2) and (3), 130, 132 (to receive a statement of account following disposal), 134(2), 135, 137(2) (to object to any proposal of ASICS to either retain or dispose of the Products), 142, 143 and 157 of the PPSA shall not apply to the enforcement by ASICS of any Security Interest created or provided for by these Terms of Trade.
13.15 The Customer acknowledges that sections 126, 128, and 129(1) of the PPSA, relating to seizure of goods and disposal of seized goods, apply.
13.16 Unless otherwise agreed and to the maximum extent permitted by the PPSA, the Customer and ASICS agree not to disclose information of the kind referred to in section 275(1) of the PPSA to an interested person, or any other person required by an interested person. Customer waives any right the Customer may have, or but for this clause may have had, under section 275(7)(c) of the PPSA to authorise the disclosure of the above information.
14. Product Returns
14.1 ASICS will only accept the return of Products supplied by ASICS Oceania Pty Ltd. ASICS will not accept the return of Products supplied to the Customer by third parties outside the Territory or that were imported by third parties other than ASICS Oceania Pty Ltd.
14.2 A return authority (RA) approval number must be obtained from ASICS before returning any product to ASICS.
14.3 For unauthorised returns, Customer will be charged a re-stocking fee of 10% of the current Price of the returned Product.
14.4 Unauthorised returns may be returned to the Customer at the Customer’s expense.
14.5 Subject to clause 4, in respect of all claims (for short delivery, non-delivery or incorrect pricing), the Customer must advise ASICS in writing within ten (10) Business Days from the Invoice date.
14.6 All claims must be fully documented quoting the respective ASICS Invoice number, the style and colour codes of the Products, the quantities, and the RA number. A return request form is available from the ASICS’ Customer Service department. The RA Number must be clearly displayed on all cartons returned. No claims can be processed without an RA number.
14.7 All claims require a legitimate proof of purchase and will be subject to investigation before a decision is made by ASICS. Any rejections by ASICS will be notified in writing with ASICS decision as to the validity of the claim being final.
14.8 Faulty goods also require an RA number which can be obtained by e-mail or phone to the ASICS’ Claims Manager. All faulty claims are subject to inspection and approval upon receipt of returned Products by the Claims Manager before any recompense can be made. All rejected faulty claims will be returned to Customer at ASICS’ expense.
14.9 To the full extent permitted by law, ASICS will only accept returned Products that it determines to be faulty within 18 months from date of manufacture. ASICS will not accept returned Products where ASICS determines that any defect has been caused by accident, misuse, mishandling or other extraneous cause.
15. Intellectual Property
15.1 ASICS’ Rights
15.2 ASICS’ Trade Marks
15.3 Assignment of Intellectual Property
15.4 Validity of Intellectual Property
Customer must take all steps as ASICS reasonably requires to maintain the validity and enforceability of the Intellectual Property of ASICS during the Term.
15.5 Moral rights
To the extent permitted by applicable law, Customer unconditionally and irrevocably waives and consents and will obtain all other necessary unconditional and irrevocable waivers and consents from its officers, employees, contractors and agents of all Moral Rights in the Products and all modifications, adaptations and improvements to ASICS’ Marketing Material made by Customer and will not institute, maintain or support any claim or proceeding for infringement of these Moral Rights and will ensure that none of its officers, employees, contractors, agents or Associated Entities do so.
Customer must not, and must procure that its Associated Entities do not, engage in any conduct which endangers the capacity of any Intellectual Property of ASICS to be protected by design, patent, trade mark or other registration, or threatens the validity of any such registration. The Customer will not reverse engineer, alter the configuration, reproduce, copy or rebrand the Products in any way. The Customer acknowledges and will not interfere with the right of ASICS to seek an injunction to protect its Intellectual Property and other rights under this Agreement.
16. Warranties and Indemnities
16.1 General Warranties
Each party warrants that:
16.2 Customer warranties
Customer warrants that:
16.3 Disclaimer of Warranty
16.4 Customer’s Indemnity
Customer will at all times indemnify and keep indemnified ASICS and its Associated Entities, their officers, employees and agents from and against any Loss they may pay, suffer, incur or sustain arising directly or indirectly from:
16.5 Consequential Loss
To the extent permitted by law and subject to clauses 5.8, 5.9 and 16.4, in no event shall either party be liable to the other for any Consequential Loss arising from any provision of this Agreement or the supply and delivery of the Products even if the other party has been advised of the possibility of such damages.
16.6 Limitation of Liability
Notwithstanding any other clause in this Agreement and to the extent permitted by law, the maximum liability of ASICS arising out of or relating to this Agreement both during and after the Term shall be limited to the lesser of the following amounts:
17.1 Permitted Use and Disclosure
A party may use Confidential Information of the other party only to the extent that such use is necessary for compliance with its obligations under this Agreement.
17.2 Protection of Confidential Information
Subject to clause 17.1 a party must:
17.3 Media Release
Customer may not make press or other announcements or media releases in relation to this Agreement and the matters the subject of this Agreement without the prior written approval of ASICS.
17.4 Product Release
Customer must not release details of any Product launch dates as notified by ASICS from time to time or release images or details of any new Products before such launch dates, including shoe and apparel styles, designs, colours and names without the prior written approval of ASICS. Without limitation to the foregoing the Customer must not release before any Product launch date any images or details of third party branding that may be included on a Product such as the indicia or Intellectual Property of the Australian Rugby Union, National Rugby League, Australian Football League or Cricket Australia. For the avoidance of doubt, the Customer must not use any form of social media to release or disclose the details of a Product before the Product launch date
The Customer acknowledges that a failure to comply with this clause 17 may result in immediate termination of this Agreement under clause 19.4.
17.6 Confidentiality Agreement
To the extent of any inconsistency between the terms of this clause 17 and any Confidentiality Agreement, the terms of this Agreement will prevail.
18. Precedence and Inconsistency
18.1 Customer invoices ASICS is not bound by any term set out in a Customer’s Order, Pre-Order, purchase order, invoice or other document that seeks to place additional obligations on ASICS outside of those contained in this Agreement. 18.2 Inconsistency The Terms of Trade will prevail to the extent of any inconsistency with the other Schedules to this Agreement.
19. Term and Termination
19.1 Term and Renewal
At the expiration of the Initial Term, this Agreement continues for successive one (1) year periods unless terminated sooner in accordance with this clause 19 (Term).
19.2 Termination without cause
Subject to clauses 19.3 and 19.4, either party may terminate this Agreement at any time after the Initial Term, without cause, upon at least twenty (20) Business Days’ prior written notice.
19.3 Termination for cause
Either party (Affected Party) may immediately terminate this Agreement by written notice to the other party (Other Party) if the Other Party breaches a material obligation under the Agreement and, where the breach is capable of remedy, does not remedy that breach within ten (10) Business Days after the Affected Party serves written notice on the Other Party requiring the breach to be remedied. Any breach of an essential term of this Agreement is not capable of remedy.
19.4 Termination by ASICS
Notwithstanding clause 19.3, ASICS is entitled to terminate this Agreement immediately with or without notice if:
19.5 Consequences of Termination
Termination of this Agreement for any reason does not affect any rights of the parties accrued prior to termination. Notwithstanding the foregoing sentence, upon expiry or termination of this Agreement and subject to clause 19.6:
19.6 Sell Off Period
Unless ASICS terminates this Agreement under clauses 19.3 or 19.4, ASICS will grant Customer for a period of ninety (90) Business Days (Sell-Off Period) after termination of this Agreement the right to sell any Product held in stock. Customer will supply ASICS with an inventory report in a form approved by ASICS showing all inventory held by Customer at the date of termination. Customer will forward a further report to ASICS following the Sell-Off Period. During the Sell-Off Period ASICS grants Customer the limited rights under clauses 15.1(b) and 15.2 of this Agreement. ASICS reserves the right to buy back all inventory of Products held by the Customer upon termination and until thirty (30) Business Days after the Sell-Off Period at a price to be negotiated in good faith but no more than the Price paid for the Products by the Customer. ASICS is not obliged to purchase any such inventory from the Customer if a negotiated price is not agreed in writing.
19.7 Survival of Provisions
Termination or expiry of this Agreement will not affect the operation of the provisions of this Agreement which by their nature survive termination or expiry of this Agreement including the provisions of clauses 15.2 (Assignment of Intellectual Property), 16 (Warranties and Indemnities), 17 (Confidentiality), 19.5 (Consequences of Termination) and 19.6 (Sell-Off Period).
Without limitation to its rights under this Agreement, including this clause 19, ASICS reserves the right to suspend the rights of the Customer or the obligations of ASICS or both, in whole or in part, under this Agreement upon written notice to Customer stating the reasons, for such period as ASICS considers in its sole discretion to be necessary, should ASICS consider in its sole discretion that Customer:
20. Force Majeure
Neither party shall be responsible for delays or failure of performance (except for obligations to make timely payments hereunder) resulting from acts beyond the reasonable control of such party (Force Majeure Event). A Force Majeure Event shall include acts of God, strikes, walkouts, riots, acts of war, epidemics, import embargos, failure of suppliers to perform, governmental regulations, power failures, earthquakes or other disasters.
21.1 Form of Notice
A notice, approval, consent or other communication in connection with this Agreement must be in writing sent to the address of the receiving party appearing in this Agreement or such other address as may be communicated by the receiving party, marked for the attention of any person nominated for that purpose by the receiving party (and who in the absence of any such nomination is the signatory to this Agreement on behalf of the party), and may be sent by prepaid post (air mail if international), courier, facsimile transmission or electronic mail.
21.2 Receipt of Notices
A notice, approval, consent or other communication is taken to have been received:
This Agreement may only be amended by agreement of the parties in writing. Notwithstanding the foregoing, if ASICS unilaterally amends this Agreement (Amended Agreement) and supplies you with a copy of the Amended Agreement and you then agree to receive Products after such notification the terms of the Amended Agreement will be binding as if signed by both parties and will replace the Agreement. If the binding effect of the Amended Agreement is challenged by the Customer in a Court and deemed wholly or substantially invalid ASICS may elect to replace the Amended Agreement with this Agreement and the Customer agrees that following any such election by ASICS the Agreement will continue to bind the parties and replace the Amended Agreement.
Customer must not sub-contract any of its obligations under this Agreement to any third party without the prior written consent of ASICS. The Customer will remain primarily liable for its obligations under this Agreement if ASICS approves a sub-contract arrangement.
22.3 No Assignment
Customer may not assign its rights or novate its obligations under this Agreement without the prior written approval of ASICS. ASICS may assign its rights or novate its obligations in its sole discretion.
A party may give conditionally or unconditionally or withhold its approval or consent in its absolute discretion unless this Agreement expressly provides otherwise.
22.5 No Partnership or Agency
This Agreement does not constitute any party the agent of the other or imply that the parties intend constituting a partnership, joint venture or other form of association in which any party may be liable for the acts or omissions of another. No party has authority to pledge the credit of the other.
22.6 Further Assurances
Each party agrees, at its own expense, on the request of the other party, to do everything reasonably necessary to give effect to this Agreement and the transactions contemplated by it, including the execution of documents.
22.7 Entire Agreement
This Agreement and its references contain the entire agreement of the parties with respect to its subject matter. It sets out the only conduct relied on by the parties and supersedes all earlier conduct by and agreements between the parties respect to its subject matter.
Each party is to bear its own costs arising out of the negotiation, preparation, stamping, execution and (subject to other provisions of this Agreement) performance of this Agreement.
This Agreement may be executed in any number of counterparts. All counterparts taken together will be taken to constitute one agreement. An executed counterpart may be delivered by facsimile or other electronic means. This Agreement shall be of no force and effect until the executed counterparts are exchanged.
The signatories to this Agreement warrant that they have authority to enter into this Agreement on behalf of the party they represent.
22.11 Governing Law and Jurisdiction
Each party irrevocably:
23. Interpretation Principles
23.1 General Rules
The following rules of interpretation apply unless the context requires otherwise.
The provisions of this Agreement are severable. If any provision is this Agreement is found or held to be invalid or unenforceable or capable of termination by a party in any jurisdiction in which this Agreement is performed, then the meaning of that provision will be construed, to the extent feasible, to render the provision enforceable. If no feasible interpretation would save such provision, it is to be severed from the remainder of this Agreement which is to remain in full force and effect and to be interpreted so as to achieve the commercial intentions of the parties.
23.3 Vienna Convention
The parties agree that subject to the provisions of this Agreement, the United Nations Convention on Contracts for the International Sale of Goods adopted at Vienna, Austria on 10 April 1980 do not apply to the supply of Products under this Agreement.
SCHEDULE 2 – ASICS’ INTERNET POLICY (October 2016)
This Internet Policy applies to all ASICS Oceania Pty Limited (ASICS) approved e-retailers subject to the ASICS Retailer Trading Agreement (Agreement).
1. Authorized Domain Name: This authorization is granted by ASICS to Customer only for each specific web site (or web sites) whose domain name(s) has been approved in writing by ASICS (Web Site). Customer must not market, advertise or offer to sell or fulfill orders for ASICS’ Products from any other web site or Internet location without the prior written consent of ASICS.
2. Web Sites: All Web Sites must use ASICS brand identification and other ASICS Intellectual Property in accordance with this Internet Policy and the Agreement and in a manner consistent with the premium brand presentation of ASICS. Web Sites must use the current ASICS logos, product images, product descriptions and technical features/specifications consistent with ASICS global approach to Product sales and marketing (Marketing Material) as provided by ASICS from time to time and without any alteration.
3. Territory: Customer must only sell ASICS’ Products from the Web Site to consumers buying in Australia. Customer must neither sell nor ship ASICS’ Products to any address outside of Australia.
4. Product Representation: ASICS’ Products advertised and/or offered for sale by Customer must be prominently displayed on their Web Sites and Customer must only use ASICS’ Marketing Material as provided by ASICS from time to time for ASICS’ Products. Customer is responsible for requesting authentic and up-to-date ASICS’ Marketing Material from their ASICS territory sales representative. ASICS’ Products offered for sale on the Web Sites must significantly match the range of ASICS’ Products offered for sale by the Customer at the Approved Trading Address for Customer. The Customer is not permitted to selectively advertise certain ASICS’ Products, such as shoes or particular styles of shoes, to the exclusion of other Products available at the Approved Trading Address for Customer. The ASICS’ Marketing Material used by the Customer must correspond to the ASICS’ Products offered on the Web Sites.
5. Web Site Standards: A Web Site must meet the following minimum standards or contain the following elements:
6. Customer Services: A high level of service is necessary to maintain the reputation and competitiveness of ASICS’ Products and its image. Customer must maintain a commitment to customer service, meeting or exceeding the following criteria:
7. Google Ad Words: Customer may use the ASICS name as a Google ‘Keyword’ for the purpose of obtaining or bidding on a better ‘Ad Rank’. The terms ‘Keyword’ and ‘Ad Rank’ have the meaning given to them by Google, Inc. and the URL google.com. Alternate search engines may also be used subject to the prior written approval of ASICS.
8. Inventory: Each Customer accepts sole responsibility for maintaining adequate inventory of all ASICS’ Products represented for sale on its Web Site. Customer should not offer for sale or take orders for any ASICS’ Products that are not held and fulfilled from its own warehouse without prior written consent by ASICS.
9. Suspension and Termination: ASICS reserves the right to indefinitely suspend or to immediately terminate at its own discretion the Customer’s authorization to resell, market and promote ASICS and its Products via the Internet upon written notice where the Customer does not comply with any term of the Agreement and/or this ASICS’ Internet Policy. Without limitation to the foregoing, ASICS reserves the right at its own discretion to withdraw Customer’s authorization to resell, market and promote ASICS and its Products via the Internet at any time, upon twenty (20) Business Days prior written notice, despite no fault on the part of the Customer.
10. Agreement Variation: The Customer acknowledges that ASICS may from time to time amend the terms and conditions of this Internet Policy. The Customer agrees to be bound by all such amendments once posted on the ASICS web site located at URL www.b2b.asics.com.au. Acceptance of the most current version of this Internet Policy will be deemed if the Customer continues to use the ASICS’ Marketing Material and/or offers the ASICS’ Products for sale on the Web Sites.