Agreement to supply
1. Interdyn agrees to supply and the Buyer agrees to purchase the Products on the terms and conditions set out in this Agreement.
2. Interdyn shall, at its absolute discretion, determine the Products it supplies to the Buyer.
3. Interdyn may modify the range of Products it supplies to the Buyer with not less than fourteen (14) days' prior written notice.
4. This Agreement shall become effective on the Effective Date and will continue for twelve (12) months, unless otherwise terminated by either Party in accordance with its terms (Term).
5. At the conclusion of the Term, this Agreement shall be renewed for successive one (1) month periods (each of which will become the Term) unless either Party provides written notice to the other, not less than thirty (30) days' prior to the expiration of the then current Term, of its intention not to renew the Agreement.
6. The Buyer must submit purchase orders (Order) for the Products using Interdyn's online ordering system (Dealernet), or by such other means approved by Interdyn.
Price and payment
7. Interdyn may reject an Order at any time at its absolute discretion.
8. The purchase price for Products will be the price as notified to the Buyer by Interdyn as at the date the relevant Order is submitted by the Buyer.
9. From time to time, Interdyn may, in its absolute discretion, offer discounts, rebates or other incentives to the Buyer.
10. Interdyn may change the price, discount, rebate or other incentive terms at any time and at its absolute discretion by giving the Buyer not less than fourteen (14) days' prior written notice.
11. Any term changed in accordance with clause 10 shall only apply to Orders made by the Buyer subsequent to Interdyn giving notice to the Buyer under clause 10.
12. If the Buyer is approved for a credit account, it must pay the purchase price, including any applicable taxes, for the Product purchased from Interdyn, in accordance with the period agreed by Interdyn.
13. If the Buyer is approved for a prepaid account, it must pay the purchase price, including any applicable taxes, for the Product purchased from Interdyn prior to any Order being dispatched.
14. All payments by the Buyer to Interdyn are to be made in Australian dollars.
15. In the event of default of payment by the due date Interdyn will be entitled to:
a) interest on all amounts overdue, from the end of the month during which the purchase is made until the date of payment in full, at the Prescribed Interest Rate, calculated daily;
b) the cost to Interdyn of recovering the overdue amount;
c) terminate or suspend dispatch of any Order;
d) suspend or cancel the Buyer's credit account with Interdyn; and
e) treat the Buyer's default as a repudiation of any existing contract for the purchase of Products and recover any unpaid sum from the Buyer by way of liquidated damages.
16. If GST is payable on a taxable supply made under, by reference to or in connection with this Agreement, the Party providing the Consideration for that taxable supply must also pay the GST Amount as additional Consideration. This clause 16 does not apply to the extent that the Consideration for the taxable supply is expressly stated to be GST inclusive.
Sale of Product
17. Any reference in the calculation of Consideration (or of any indemnity, reimbursement or similar amount) to a cost, expense or other liability incurred by a Party, must exclude the amount of any Input Tax Credit entitlement of that Party in relation to the relevant cost, expense or other liability.
18. Unless otherwise stated in this Agreement, any reference in this Agreement to price, value, sales, revenue or a similar amount (Revenue), is a reference to that Revenue exclusive of GST.
19. Any reference in this Agreement (other than in the calculation of Consideration) to cost, expense or other similar amount (Cost), is a reference to that Cost exclusive of GST.
20. All stamp duty (including fines, penalties and interest) payable on or in connection with this Agreement and any instrument executed under or any transaction evidenced by this Agreement must be borne by the Buyer.
21. The Buyer must:
a) only sell the Products from premises approved by Interdyn (Approved Premises);
b) not sell or supply the Products to any person or a business which the Buyer has reason to believe intends to resell the Product, except with Interdyn's written consent;
c) use its best endeavours to actively advertise and promote the sale of the Products. In doing so, the Buyer must promote the good will and reputation of the Products;
d) seek Interdyn's prior written consent (which will not be unreasonably withheld) in relation to any advertisement, including but not limited to, print, online, webpages, digital, radio and televised advertisements, for the Products;
e) not sell the Products online without Interdyn's prior written consent;
f) comply with the reasonable requirements of Interdyn in relation to the advertising, promotion, sale, distribution, storage and handling and use of the Products and must act in a manner it reasonably considers to be most beneficial to Interdyn's interests;
g) comply with minimum display stock requirements;
h) comply with all Applicable Programs; and
i) provide reasonable after sales services to customers that purchase the Products. The Buyer is responsible for providing first level support to customers that purchase the Products.
22. Interdyn may, from time to time, with reasonable prior written notice to the Buyer, issue other reasonable policies to the Buyer. The Buyer must comply with any policies issued by Interdyn to the Buyer.
23. he Buyer must:
Recommended retail prices
a) seek Interdyn's prior consent (which will not be unreasonably withheld) for the use of any intellectual property rights associated with the Products; and
b) not take any action which would damage, infringe or impair any intellectual property rights associated with the Products.
24. Any recommended retail price (RRP) provided by Interdyn to the Buyer is a recommendation only and there is no obligation on the Buyer to comply with that recommendation.
Delivery, risk and title
25. Any RRP provided by Interdyn to the Buyer is inclusive of GST.
26. Products ordered under an Order which is accepted by Interdyn will be dispatched to the Buyer's nominated delivery point at the Buyer’s cost. The mode of delivery will be at Interdyn's option.
Product returns, replacements and credits
27. Interdyn will make all reasonable efforts to have the Products dispatched, or made available, to the Buyer on or about the date agreed between the Parties, but any such date is an estimate only and is not binding on Interdyn.
28. Interdyn will not be liable for any failure to dispatch or make available, or delay in dispatch or availability, of the Products for any reason.
29. The risk of loss of, or damage to, the Products will pass to the Buyer on dispatch of the Products from the dispatch point, and the Buyer must insure the Products until sold by the Buyer.
30. Property in, and ownership of, the Products will not pass from Interdyn to the Buyer until the whole amount payable to Interdyn in respect of those Products has been paid in full to Interdyn.
31. The Buyer must inspect the Products for any damage at the time of receipt of the Products. The Buyer must notify Interdyn of any damage in writing within 2 business days of receipt of the Products. The process for returning any Product damaged during delivery is as set out in clauses 32 to 34 of this Agreement.
32. Subject to the Buyer's compliance with the obligations listed in clause 33, Interdyn will repair, replace or give the Buyer a credit or agree a price adjustment if the Product is determined by Interdyn to be defective and unable to be repaired. For the avoidance of doubt, clauses 32 and 33 are not intended to exclude, restrict or modify the operation of or any rights the Buyer may have under the Competition and Consumer Act (2010), including under section 274 of Schedule 2 of that Act.
Personal Property Securities Act
33. The Buyer must comply with the following conditions of Product returns:
a) the Buyer must provide Interdyn with full information about any Product defects as soon as the Buyer becomes aware of the alleged defects;
b) the Buyer must permit Interdyn to examine the alleged defective Product;
c) no Product shall be returned by the Buyer, without Interdyn's prior written approval;
d) all Products returned must be inclusive of all manufacturer accessories. The Buyer will be charged for missing accessories at the prevailing prices;
e) all Products returned should be in original packaging. Interdyn will not assume liability for items damaged as a result of incorrect packaging;
f) all Products returned as defective and found by Interdyn to be defect free, will be returned to the Buyer at the Buyer's expense; and
g) all Products for return must only be transported via Interdyn's nominated carrier. Interdyn will not be responsible for charges levied by other carriers.
34. Property and risk in any Products returned by the Buyer will pass to Interdyn on their receipt by Interdyn.
35. Unless otherwise stated, a term contained in this clause 35 that is defined in the Personal Property Securities Act 2009 (Cth) (PPSA) (but not otherwise defined in this Agreement) has the meaning given to it in the PPSA and Security Interest means a security interest under the PPSA.
a) Interdyn's Security Interest in the Products arising under this Agreement extends to any proceeds (as defined in the PPSA) of the Products.
b) Interdyn may register any Security Interest which it considers arises or will arise out of this Agreement or any supply of Products pursuant to this Agreement (even before that Security Interest starts).
c) The Buyer:
i. agrees to promptly do anything (such as obtaining consents, signing documents, getting documents completed and signed and supplying information, and including entering into a subordination or priority agreement with any other secured party) which Interdyn asks, to:
A. ensure that the Security Interest created under this Agreement is perfected, first ranking and otherwise effective;
B. enable Interdyn to apply for any registration, or give any notification, in connection with the Security Interest, so that the Security Interest has the priority required by Interdyn;
C. assist Interdyn to exercise rights in connection with the Security Interest;
ii. irrevocably appoints Interdyn and each officer and lawyer of Interdyn severally as its attorney to do all things and sign all documents
required by Interdyn to fully exercise Interdyn's rights under this clause 35 (and the Buyer must pay Interdyn on demand any costs incurred by Interdyn in doing so); and
iii. agrees to immediately notify Interdyn in writing if there is a change in its address, or to any of the data relevant to a financing statement under the PPSA in respect of the supply of Products and/or credit by Interdyn.
d) If Interdyn exercises a right, power or remedy in connection with this contract, that exercise is taken not to be an exercise of a right, power or remedy under the PPSA unless Interdyn states otherwise at the time of exercise. However, this clause 35 does not apply to a right, power or remedy which can only be exercised under the PPSA.
e) The Buyer agrees not to exercise its rights to make any request of Interdyn under section 275 of the PPSA, to authorise the disclosure of any information under that section or to waive any duty of confidence that would otherwise permit non-disclosure under that section.
f) To the extent the law permits, the Buyer waives:
i. its rights to receive any notice that is required by:
A. any provision of the PPSA (including a notice of a verification statement); or
B. any other law before a secured party exercises a right, power or remedy in connection with this contract; and
ii. any time period that must otherwise lapse under any law before a secured party or receiver or receiver and manager exercises a right, power or remedy.
If the law which requires a period of notice or a lapse of time cannot be excluded, but the law provides that the period of notice or lapse of time may be agreed, that period or lapse is one day or the minimum period the law allows to be agreed (whichever is the longer).
iii. However, nothing in this clause 35 prohibits the secured party or any receiver or receiver and manager from giving a notice under the PPSA or any other law.
g) If Chapter 4 of the PPSA would otherwise apply to the enforcement of any Security Interest arising under this Agreement, the Buyer agrees that sections 95, 120, 121(4), 125, 128, 129, 130, 132(3)(d), 132(4), 134(1), 135, 142 and 143 of the PPSA will not apply to the enforcement of those Security Interests.
36. The Buyer must not, except in confidence to the Buyer's professional advisors on a need to know basis, disclose to any other person:
a) any confidential information in relation to the Products; or
b) any confidential information in relation to Interdyn's affairs or business or method of carrying on business (together with a), Confidential Information).
37. Subject to clause 36, the Buyer may disclose Confidential Information:
a) with Interdyn's prior written consent;
b) if (and to the extent that) it is required to do so by law or by any notice, order or regulation of any governmental agency (including any rules of a securities exchange) which is binding upon the Buyer; or
c) if the Confidential Information has come within the public domain, other than by a breach of these confidentiality obligations by the Buyer.
38. Subject to clause 39, the Buyer must indemnify and keep indemnified Interdyn and each of its officers, employees and agents (for each of whom Interdyn holds the benefit of this indemnity upon trust) against any Loss which any such person may incur or be subjected to in respect of or arising from:
Limitation of liability
a) the negligence, wrongful act or omission, breach of statutory duty or wilful default of the Buyer or its officers, employees or any person the Buyer authorises;
b) any injury to or death of any person or any damage to or loss of property connected with the conduct, operations or performance of the business of the Buyer;
c) transport, storage, repackaging or other handling of the Products by the Buyer;
d) misuse of the Products by the Buyer; or
e) warranties or representations made by the Buyer in relation to the Products.
39. The Buyer is not liable to Interdyn for any exemplary, special, indirect, incidental or consequential loss or damage or any actual or prospective lost revenue or profits.
40. Except for the warranties expressly made in this Agreement, all conditions, warranties, undertakings or representations, express or implied, arising by statute, general law or otherwise are expressly excluded by Interdyn to the extent permitted by law.
41. The liability of Interdyn to the Buyer for any Loss relating to the Products is limited (to the full extent permitted by law) to the costs of replacing the Product, that is the subject of the Loss. For the avoidance of doubt, nothing in this Agreement is intended to exclude, restrict or modify the operation of or any rights the Buyer may have under the Competition and Consumer Act (2010), including under section 274 of Schedule 2 of that Act.
42. Interdyn is not liable to the Buyer for any exemplary, special, indirect, incidental or consequential loss or damage or any actual or prospective lost revenue or profits.
43. The Buyer represents and warrants to Interdyn that, as at the Effective Date and for the entire Term:
a) it has the power and authority to execute and perform its obligations under this Agreement;
b) this Agreement has been duly executed and is a legal, valid and binding Agreement, enforceable against the Buyer in accordance with its terms;
c) it is not bound by any contract which may restrict its right or ability to enter into or perform this Agreement; and
d) if applicable, it holds and will maintain any permits or licenses necessary for the performance of its obligations under this Agreement.
44. From the Effective Date and for the entire Term of this Agreement, the Buyer must obtain and maintain, at its own cost, insurance policies providing sufficient coverage, including an insurance policy with sufficient coverage for property damage at any premises where the Products are stored, warehoused or sold.
45. Interdyn shall have the right to inspect all insurance policies held by the Buyer during the Term of this Agreement.
46. If either Party (the Affected Party) is by reason of Force Majeure, unable to perform or carry out any obligation (other than a payment obligation) under this Agreement, that obligation will be suspended for so long and to the extent that it is affected by the Force Majeure.
47. The Affected Party must promptly give notice to the other Party (Non-Affected Party) of the Force Majeure with reasonably full particulars and, so far as it is known, the probable extent to which Affected Party will be unable to perform or carry out or will be delayed in performing or carrying out its obligations.
48. If the Affected Party is unable by reason of Force Majeure to perform all or substantially all of its obligations in relation under this Agreement for a period exceeding six (6) months, the Non-Affected Party may terminate this Agreement by thirty (30) days' prior written notice to the Affected Party.
49. The Affected Party will not be liable to the Non-Affected Party for any failure or delay in the performance of any of its obligations under this Agreement to the extent that such failure or delay is attributable to the occurrence of Force Majeure.
50. This Agreement may be terminated:
a) without cause by either Party providing thirty (30) days' prior written notice to the other Party, without any penalty;
b) immediately by either Party if the other Party commits a material breach of this Agreement and the breach is not capable of being cured, or the breach is capable of being cured and the other Party fails to cure the breach within fourteen (14) days of a written request to cure the same;
c) immediately by Interdyn, by giving the Buyer notice in writing of any of the following events:
i. an Insolvency Event;
ii. the Buyer's actions and conduct bring the Products or Interdyn into disrepute;
iii. default of payment by the due date; or
iv. the Buyer fails to obtain Interdyn's consent for any advertisement of other use of any intellectual property rights associated with the Products.
51. On termination or expiry of this Agreement neither Party will be discharged or released from any debts or liabilities owing to the other Party under this Agreement which existed unconditionally prior to the expiry or termination of this Agreement.
52. On termination or expiry of this Agreement, Interdyn or its nominees shall be entitled to repurchase all or any part of the Buyer's remaining stock of Products from the Buyer at the price which such Products were sold to the Buyer by Interdyn (less any reasonable costs for restoration, repair, repackaging and the return of the relevant Products to Interdyn if the relevant Products are not in their original condition).
53. For the purposes of clause 52, within thirty (30) days of expiry or termination of this Agreement, the Buyer shall provide to Interdyn full details in writing of all Products in the Buyer's possession or control as at the date of such expiry or termination (Remaining Stock Notice). Within thirty (30) days of receipt of the Remaining Stock Notice, Interdyn shall notify the Buyer in writing whether or not it wishes to purchase all or part of such stock.
54. If Interdyn notifies the Buyer that it does not wish to repurchase all or part of the Buyer's remaining stock pursuant to clause 53, then, unless the Agreement was terminated by Interdyn under clause 50(c)(ii) the Buyer shall have the right for sixty (60) days after the date or expiry or termination of this Agreement (Sell-Off Period) to sell its remaining stock of Products. All obligations of the Buyer under this Agreement shall continue to apply during the Sell-Off Period.
55. On termination or expiry of this Agreement, without limiting any other right Interdyn may have, Interdyn may cancel any or all unfilled Orders.
56. Within thirty (30) days of termination or expiry of this Agreement, the Buyer must pay all outstanding invoices for the Products.
57. On termination or expiry of this Agreement, or on expiry of the Sell-Off Period if applicable, the Buyer must immediately cease holding itself out as a retailer of the Products.
58. The Buyer must pay to Interdyn all costs and expenses including any legal costs (on an indemnity basis) incurred by Interdyn in connection with the enforcement of, or preservation of its rights under this Agreement. Such costs and expenses may be recovered by Interdyn from the Buyer as a liquidated debt. Any payments received by Interdyn from the Buyer must be applied first to any legal costs and other expenses, then to interest and the remainder to the balance of the amounts owed by the Buyer under this Agreement.
Relationship of the Parties
59. The Buyer's relationship with Interdyn shall be that of an independent contractor.
60. The Buyer acknowledges that the Parties are not partners or joint venturers.
61. Any notice, demand, consent, approval, authorisation or other communication (Notice) contemplated by, or given or made under, this Agreement must be in writing. Notices must either be delivered to the intended recipient by prepaid post or by hand or by email to the relevant address or email address provided by each party. If either party does not provide a relevant address or email address then Notices must be delivered to the contact details outlined on the intended recipient’s website.
Compliance with laws
62. A Party may from time to time notify the other Party of its change of address or email address and, on receipt of such updated details, the other Party will use those updated details for the purpose of giving notices under this Agreement.
63. The Buyer must comply with all with applicable rules, laws or ordinances (including, without limitation, the applicable laws governing consumer protection and competition laws) in the performance of the Buyer’s obligations under this Agreement.
64. If there is a dispute or difference between the Parties arising out of or in connection with this Agreement (Dispute), then within five Business Days of a Party notifying the other Party in writing of the Dispute, a senior representative from each Party must meet and use all reasonable endeavours acting in good faith to resolve the Dispute by joint discussions.
Right of Set-off
65. A Party may not start court proceedings in relation to a Dispute until it has exhausted the procedures in clause 64, unless the Party seeks injunctive or other interlocutory relief.
66. Despite the existence of a Dispute each Party must continue to perform this Agreement.
67. Interdyn may set-off any amount due to it from the Buyer against any amount due to the Buyer by Interdyn.
68. No Party can assign, charge, encumber or otherwise deal with any rights and obligations under this Agreement, or attempt or purport to do so, without the prior written consent of the other Party (which consent must not unreasonably be withheld).
69. This Agreement contains the entire agreement between the Parties as at the date of this Agreement with respect to its subject matter and supersedes all prior agreements and understandings between the Parties in connection with it.
70. Each provision of this Agreement is deemed to be separate and severable from the other provisions. To the extent any provision is invalid or unenforceable in any jurisdiction, this will not:
a) invalidate the remaining provisions of this Agreement in that jurisdiction; or
b) affect the validity or enforceability of that provision in any other jurisdiction.
71. This Agreement may be amended only by another agreement or deed executed by all the Parties.
72. For the avoidance of doubt, the Parties may agree an Applicable Program, or agree an amendment to an Applicable Program, without that requiring an amendment of this Agreement.
73. A failure to exercise or a delay in exercising any right, power or remedy under this Agreement does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless made in writing.
74. The rights, powers and remedies provided to a Party in this Agreement are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity or any agreement.
Survival of representations and warranties
75. All representations and warranties in this Agreement will survive the execution and delivery of this Agreement and the completion of transactions contemplated by it.
76. This Agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.
77. This Agreement is governed by the laws of Victoria.
78. Headings are for convenience only and do not affect interpretation.
79. Mentioning anything after includes, including, or similar expressions, does not limit what else might be included.
80. The following rules apply unless the context requires otherwise:
a) the singular includes the plural, and the converse also applies;
b) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
c) a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;
d) a reference to a clause, Schedule or Annexure is a reference to a clause of, or Schedule to, or Annexure to, this Agreement;
e) a reference to a Party to this Agreement or another agreement or document includes the Party’s successors, permitted substitutes and permitted assigns (and, where applicable, the Party’s legal personal representatives);
f) a reference to an agreement or document (including a reference to this Agreement) is to the agreement or document as amended, varied, supplemented, novated or replaced, except to the extent prohibited by this Agreement or that other agreement or document, and includes the recitals, schedules and annexures to that agreement or document;
g) a reference to legislation or to a provision of legislation includes any modification or re enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
h) a reference to conduct includes an omission, statement or undertaking, whether or not in writing; and
i) a reference to dollars and $ is to Australian currency.
The following definitions apply unless the context otherwise requires.
Applicable Programs means any programs, policies, standards, procedures and guidelines agreed between Interdyn and the Buyer, from time to time, in relation to the Products.
Buyer means the Buyer and includes the Buyer's officers, employees and any person the Buyer authorises.
Consideration, GST and GST Group have the meaning given by the GST Law.
Effective Date means the date on which this Agreement is executed by the Parties.
Force Majeure means any event, cause or occurrence as a direct or indirect result of which the Party relying on the event, cause or occurrence is prevented from or delayed in performing any of its obligations (other than a payment obligation) under this Agreement and that is beyond the reasonable control of that Party, including an act of God, storm, flood, fire, lightning, earthquake, explosion, strike, lock-out or other labour difficulty, act of war, terrorism, riot, insurrection.
GST Amount means in relation to a taxable supply the amount of GST payable in respect of that taxable supply.
GST Law has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth), or, if that Act does not exist, means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act.
Input Tax Credit has the meaning given by the GST Law and a reference to an Input Tax Credit entitlement of a Party includes an Input Tax Credit for an acquisition made by that Party but to which another member of the same GST Group is entitled under the GST Law.
Insolvency Event means the occurrence of any event pursuant to which Interdyn forms the opinion that the Buyer is unable to pay its debts as and when they fall due.
Interdyn means Interdyn Pty Ltd ABN 38 005 016 606 and includes Interdyn's officers, employees and any person Interdyn authorises.
Loss includes any damage, loss, cost, liability, charge, expense, diminution in value or deficiency of any kind or character.
Parties means Interdyn and the Buyer.
Prescribed Interest Rate means the rate which is 2% p.a. above the daily buying rate displayed at or about 10.30am (Melbourne time) on the Reuters screen BBSW page for Australian bank bills of a three month duration. If no daily buying rate is so published, the Prescribed Interest Rate means the buying rate available to Interdyn at about 11.00 am (Melbourne time) on the relevant day, as conclusively determined in good faith by Interdyn, for Australian bank bills of a three month duration.
Products means the Interdyn-supplied products which Interdyn approves for resale by the Buyer and which Interdyn supplies to the Buyer.