Retailer Trading Agreement
ASICS OCEANIA PTY LTD (ABN 59 003 091 389) of 10 Interchange Drive, Eastern Creek, NSW, 2766, Australia (ASICS) agrees to supply Products to you the Customer subject to the terms and conditions of this Agreement.
This Agreement incorporates the following:
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.
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:
- a corporation that is related to a party as defined in the Corporations Act 2001 (Cth);
- any individual who, or any corporation or other form of business organisation which, in any country Controls, or is under common Control with, or Controls, a party; and
- any corporation or other form of business organisation in which any of the above entities directly or indirectly (including through intermediaries) has at least a 40% ownership interest through stock ownership, voting rights or otherwise, or has the maximum ownership interest it is permitted to have in the country where it exists.
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:
- agreements, deeds, deal memos, correspondence, plans and proposals regarding the Discloser;
- financial and business information provided in all formats in relation to the business of the Discloser including management reports, sales reports and marketing reports;
- Product pricing including wholesale prices, rebates, margins and discounts;
- Product launch dates and the release of Product images or details before launch dates including shoe and apparel styles, designs, colours, names and third party branding;
- customer details and lists;
- intellectual property, trade secrets, specialised knowhow or practice, inventions (whether or not reduced to practice), methodologies, formulae, graphs, drawings, specifications, designs, samples, devices, models, computer generated or stored information or computer programming code (including source and object code);
- information designated or imparted in confidence (or which might reasonably be understood to have been disclosed to the Recipient in confidence) by the Discloser; and
- records and all copies of such records in whatever form prepared by the Recipient based on or incorporating any and all information provided by the Discloser to the Recipient including: (i) all information created, ascertained, discovered or derived by the Recipient, directly or indirectly from any information furnished by or on behalf of or concerning the Discloser; and (ii) all such Recipient’s records created before or after the date of this Agreement;
The following is not Confidential Information:
- information which is lawfully in the public domain prior to its disclosure to Receiver by Discloser;
- information which enters the public domain otherwise than as a result of an unauthorised disclosure;
- information which is or becomes lawfully available to the Receiver from a third party who has the lawful power to disclose such information to the Receiver on a non-confidential basis; and
- information which is rightfully known by the Receiver (as shown by its written record) prior to the date of disclosure.
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:
- a receiver, receiver manager, trustee, administrator, other controller (as defined in the Corporations Act 2001 (Cth) or similar official is appointed over any of the assets or undertakings of the other party; the party suspends payment of its debts generally;
- the party is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts or is presumed to be insolvent within the meaning of the Corporations Act 2001 (Cth);
- the party enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit or, its creditors or any class of them;
- the party ceases to carry on business or threatens to cease to carry on business;
- a resolution is passed or any steps taken to appoint, or to pass a resolution to appoint, an administrator; or
- an application or order is made for the winding up or dissolution of the other party, or a resolution is passed, or any steps are taken to pass a resolution, for the winding up or dissolution of the other party, otherwise than for the purpose of an amalgamation or reconstruction that has the prior written consent of the first 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:
- any right to apply for the registration of these rights;
- all renewals and extensions of these rights; and
- all ancillary rights or related rights such as Moral Rights (to the extent applicable).
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:
- a right of attribution of authorship; or
- a right not to have authorship falsely attributed; or
- a right of integrity of authorship; or
- a right of a similar nature.
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:
- a security interest under the PPSA;
- any other mortgage, pledge, lien or charge; and
- any other interest or arrangement of any kind that in substance secures the payment of money or the performance of an obligation, or that gives a creditor priority over unsecured creditors in relation to any property including the Products.
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:
- the Product to be supplied;
- the quantity of Product to be supplied;
- the date upon which Product is to be delivered; and
- if Customer requests ASICS to deliver Products to Customer, details of the Customer’s delivery address; or
- if Customer requests to collect the Product a proposed date for collection.
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:
- the Product to be supplied;
- the quantity of the Product to be supplied;
- the Price, including any deposit amount required or schedule of payments or bulk discount;
- a date and location for collection of the Product, or
- if the Product is being delivered to Customer, the Delivery Date, the cost of delivery (see clauses 3.1 and 3.2) and the delivery details.
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:
- if the Customer is required by ASICS to collect the Product, ASICS shall use reasonable commercial endeavours to make the Product available for collection by the Customer, on the Collection Date or on the date specified in the Invoice on an EXW basis. Customer is deemed to receive the Products once collected by Customer or an agent of Customer or any person claiming the Products in the name of the Customer, at the location named in the corresponding Order Confirmation or Invoice;
- if ASICS is required to deliver the Product to the Customer, ASICS shall use reasonable commercial endeavours to deliver the Product to the Customer on the Delivery Date or on the date specified in the Invoice, on a CIF or CIP basis, with all delivery costs added to the Price of the Products, unless otherwise agreed in writing by ASICS.
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:
- packaging costs;
- insurance, but only as specified in the Invoice;
- delivery, transportation and freight charges including any applicable taxes or duties as specified in the Invoice; and
- GST if applicable,
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:
- use its best endeavours to promote and sell the Products;
- employ and train competent personnel, capable of providing all sale and support services as required for the Products;
- sell the Products as supplied by ASICS and Customer shall not undertake any modification, alteration or additions thereto without the written approval of ASICS;
- conduct business in a manner that does not reflect unfavourably on the Products or on the good name, goodwill and reputation of ASICS;
- avoid deceptive, misleading or unethical practices; and
- make no representations or warranties concerning the capabilities, functionality, performance or other characteristics of the Products other than those which are consistent in all material respects with, and do not expand the scope of, the documentation, literature or marketing materials for the Products as supplied to Customer by ASICS from time to time.
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:
- if the Products are collected by the Customer on an EXW basis, risk in the Products passes to Customer when ASICS places the Products at the disposal of the Customer at any ASICS premises, or at another place named in the Invoice; and
- if the Products are delivered by ASICS to the Customer on a CIF or CIP basis, then risk passes to Customer upon delivery of the Products to the Customer or an agent of Customer at the location named in the corresponding Invoice.
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:
- legal title to the Products will remain with ASICS;
- the relationship between ASICS and the Customer will be fiduciary;
- Customer will hold the Products as bailee for ASICS; keep the Products separate from other products; and label the Products so that they are identifiable as the products of 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:
- a Security Interest over all present and after-acquired property to which the Customer can be a grantor of a security interest under the PPSA, whether or not the Customer has title in the property including all retention of title property (as defined in section 51F of the Corporations Act 2001), and including but not limited to:
- all goods and Products previously supplied by ASICS to the Customer, if any;
- all future Products supplied by ASICS to the Customer, even if ASICS has not supplied the Products strictly in accordance with these Terms of Trade;
- all Proceeds from the sale of ASICS’ Products;
- any Accounts containing the Proceeds from the Products supplied by ASICS to the Customer; and
- any Accessions containing the whole or part of any Products supplied by ASICS to the Customer.
- a fixed charge over all present and after-acquired property of the Customer that is not covered by clause 13.4(a) above, including but not limited to:
- the Customer’s freehold and/or leasehold interest in land which the Customer now possesses or may hereafter possess; and
- any other property to which the PPSA does not apply.
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:
- the Customer has not paid ASICS by the due date for all or any Products supplied to the Customer by ASICS;
- the Customer exceeds any credit limit specified by ASICS from time to time;
- execution is to be levied against any of the Products supplied to the Customer by ASICS; or
- the Customer becomes insolvent, is subject to any form of external administration (whether by a receiver, administrator, liquidator or otherwise), enters into any arrangement or composition with its creditors, ceases to trade or is otherwise unable to pay its debts when due,
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:
- where the Customer has been paid by its purchaser(s) for all or any part of all such Products without ASICS having been paid for them the Customer holds that part of the proceeds of sale equal to the amount owing to ASICS on trust for ASICS from the time of receipt of such proceeds; and
- where the Customer has not been paid by its purchaser(s), and ASICS has not been paid by the Customer for Products pursuant to these Terms of Trade, the Customer agrees, at the option of ASICS to be given by notice in writing, to assign its claim against its purchaser(s) to ASICS and to notify such purchaser(s) in writing of such assignment.
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:
- that this Agreement is a Security Agreement;
- that it has received value as at the date of first delivery of the Products by ASICS and has not agreed to postpone the time for Attachment of the Security Interest to the Products supplied;
- that the Products supplied by ASICS secure the payment of the purchase Price of those Products and of any other goods supplied by ASICS with priority to the maximum extent permitted by law over all other registered or unregistered Security Interests;
- that it will not change its name, ACN or ABN or other details required on the Personal Property Securities Register, without first notifying ASICS in writing; and
- to do all things necessary, including executing all documents that ASICS requires and providing all relevant information and cooperating fully with ASICS, and at its own expense, to enable ASICS to register a Financing Statement on the Personal Property Securities Register to ensure that at all times ASICS has a perfected Security Interest in respect of all Security Interests created under these Terms of Trade, and wherever possible a Purchase Money Security Interest.
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
- Customer acknowledges that all Intellectual Property in and relating to ASICS’ Marketing Material and Products remains the property of ASICS, and that Customer acquires no right, title or interest in or to the Intellectual Property in or relating to the Marketing Material or to the Products by virtue of this Agreement, other than the limited licences set out in clauses 15.1(b) and 15.2 below.
- ASICS grants Customer a non-exclusive, non-transferable, royalty-free licence during the Term to use Intellectual Property rights owned by ASICS to the extent necessary for the sale of Products by Customer in accordance with this Agreement.
15.2 ASICS’ Trade Marks
- During the Term, Customer is authorised by ASICS to use the registered trade marks of ASICS or its licensee, ASICS Corporation, at no additional charge solely in connection with the marketing, advertisement, promotion and sale of the Products in accordance with the terms of this Agreement and in accordance with any trade mark policies in effect from time to time as supplied by ASICS to the Customer.
- Customer must not sell the Products under any other manufacturer’s name or trade mark or attach any additional third party trade mark.
- Customer must not sell the Products under a superseded ASICS’ trade mark or the incorrect trade mark for a particular Product (for example, the Onitsuka trade marks should only be used with ASICS’ Onitsuka products).
- Without the prior written approval of ASICS, Customer shall not alter, modify or change any label or packaging of the Products or add or remove any ASICS’ trade marks or any other ASICS’ indicia.
- Customer agrees not to use or affix any ASICS’ trade mark to any other product or in connection with any product other than the Product.
- All uses of the ASICS’ trade marks shall benefit ASICS. All goodwill from the use of ASICS’ trade marks shall enure to the benefit of ASICS, and Customer shall not take any action in derogation of any of ASICS’ rights in its trade marks and Customer agrees to cooperate with ASICS in facilitating ASICS monitoring and control of the use of its trade marks, and upon ASICS request, Customer shall promptly provide ASICS with a copy of all materials in which Customer uses any of the ASICS’ trade marks.
- Any proposed use of the ASICS’ trade marks as store signage, whether inside or outside the store or otherwise by the Customer is subject to the prior written approval of ASICS.
15.3 Assignment of Intellectual Property
- All modifications, adaptations and improvements to ASICS’ Marketing Material and Products whether or not permitted, will belong to ASICS upon their creation.
- For good and valuable consideration (receipt of which Customer acknowledges), Customer, its Associated Entities and their officers, employees, contractors and agents hereby assign all Intellectual Property in the Products and all modifications, adaptations and improvements to ASICS’ Marketing Material and the Products to ASICS without restriction or limitation and for no additional compensation for use (or not to use as ASICS may decide) by all means in all media in perpetuity and throughout the universe.
- Customer will do all things necessary to vest ownership of all such Intellectual Property rights in ASICS, including the execution of documents by Customer and its officers, employees, contractors and agents.
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:
- the execution and delivery of this Agreement has been properly authorised;
- it has full corporate power to execute, deliver and perform its obligations under this Agreement;
- this Agreement constitutes a legal, valid and binding agreement and is enforceable in accordance with its terms by appropriate legal remedy;
- this Agreement does not conflict with or result in the breach of or default under any provision of its constitution, or any material term or provision of any law or regulation to which it is a party or a subject or by which it is bound;
- there are no actions, claims, proceedings or investigations pending or threatened against it or by it of which it is aware, and which may have a material effect on the subject matter of this Agreement;
- it will advise the other party if it suffers an Insolvency Event; and
- is not entering into this Agreement as trustee of any trust or settlement.
16.2 Customer warranties
Customer warrants that:
- it has all necessary licences, approvals, permits and consents to enter into this Agreement and to sell the Products in the Territory;
- it will sell the Products in compliance with all relevant laws, regulations, standards and codes of conduct including advertising codes of practice;
- it has the necessary skills, experience, qualifications, resources, technology and know-how to supply and sell the Products in accordance with this Agreement;
- it has not and will not enter into any agreement, arrangement or understanding (whether or not in writing) that conflicts with its obligations under this Agreement during the Term or that would render Customer incapable of satisfactorily performing its obligations under this Agreement; and
- except as provided in this Agreement, it has not relied on any inducement, representation or statement made by or on behalf of ASICS in purchasing the Products.
16.3 Disclaimer of Warranty
- Except for the express warranties in clauses 16.1 and 16.2, and to the extent permitted by law, neither party makes any warranties, express or implied, statutory or otherwise in connection with the Products. Without limitation to the foregoing ASICS expressly excludes warranties related to the performance, quality or fitness for any purpose of the Products.
- Without limitation to clause 16.3(a), ASICS and Customer acknowledge that the provisions of the Competition and Consumer Act 2010 (Cth) (Act) and any other statutes from time to time enforced in Australia may imply warranties or conditions or impose guarantees or obligations upon ASICS in relation to the Products which cannot be excluded, restricted or modified except to a limited extent. If any such statutory provisions apply, then to the extent to ASICS is entitled to limit its liability under that statutory provision (including, pursuant to Schedule 2, Section 64A and 276A of the Act), ASIC’s liability shall be limited to any one or more of the following at its sole discretion:
- in the case of any good, the replacement or repair of the good, or the supply of equivalent goods, or the payment of the cost of replacing or repairing the goods or acquiring equivalent goods;
- in the case of any service, the supply of the services again, or the payment of the cost of having the services supplied again.
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:
- any breach by the Customer of any provision of this Agreement;
- any act or omission (including any negligent act or omission) of the Customer or its Associated Entities, or their officers, employees and agents;
- termination of this Agreement by ASICS exercising its sole discretion under clauses 19.2, 19.3 or 19.4; and/or
- suspension of this Agreement by ASICS exercising its sole discretion under clause 19.8.
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:
- a sum equal to twice the total Price paid by Customer to ASICS in the last year of the Term prior to the first claim made for compensation by the Customer under this Agreement; or
- the sum of $250,000.
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:
- not use, and ensure that its employees, officers, contractors and agents do not use, any Confidential Information of the other party for any purpose other than compliance with its obligations under this Agreement;
- take all action necessary to maintain the confidential nature of the Confidential Information, including keeping all records of the Confidential Information of the other party under lock and key or password protection;
- not disclose any of the Confidential Information of the other party to any person other than its employees and officers who have been made aware of the requirements of this clause; and
- return all documents and other materials in any medium in its possession, power or control which contain or refer to any Confidential Information of the other party, on the earlier of demand from that party or the time the documents and other material are no longer required for compliance with the party’s obligations under this Agreement.
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:
- Customer is subject to an Insolvency Event that is not dismissed or rectified within five (5) Business days of such event;
- Customer intends to or ceases to carry on its business or there is a material change in the Control of the Customer;
- ASICS ceases to supply Products in the Territory;
- a Force Majeure Event under clause 20 extends for a period of ten (10) Business Days or more, whether consecutive days or not;
- Customer damages the reputation of ASICS as determined by ASICS in its sole discretion;
- Customer fails to comply on one or more occasions with its obligations under any of clauses 8.2, 8.3, 8.4, 8.5, 8.6, 8.7,8.8,8.12 or 8.15 as determined by ASICS in its sole discretion;
- Customer fails to comply with Clause 9 as determined by ASICS in its sole discretion; or
- Customer fails to comply with its confidentiality obligations under clause 17 as determined by ASICS in its sole discretion.
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:
- ASICS shall have no further obligations to Customer whatsoever;
- all rights and licences granted to Customer under this Agreement shall terminate immediately;
- ASICS is not obliged to fulfil any outstanding Orders or Pre-Orders for Products from the Customer existing at the date of expiry or termination;
- Customer shall cease from further marketing and/or selling of the Products;
- Customer shall immediately cease to use all Intellectual Property of ASICS including any ASICS’ trade marks and Marketing Materials in connection with the promotion or advertising of Products including any displays in or outside of the Customer’s premises;
- within ten (10) Business Days deliver up to ASICS or destroy, as required by ASICS (at ASICS’ sole discretion) all copies of Confidential Information and all other written information and material relating to the Products, including any ASICS’ Marketing Materials in the possession or under the Control of the Customer.
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:
- is not fully complying with its obligations under the Agreement;
- may have breached the Agreement, but where ASICS intends to investigate the potential breach before taking formal action under clause 19.3 or terminating the Agreement. Customer agrees to assist ASICS in relation to any such investigation at its own cost.
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:
- in the case of hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving Party;
- in the case of posting within New South Wales, three (3) Business Days after dispatch; and if posted from outside New South Wales, five (5) Business Days after dispatch;
- in the case of facsimile, upon receipt of a successful transmission notice if received on a Business Day or otherwise at the commencement of the first Business Day following transmission;
- in the case of email, immediately unless a failure delivery notice is received by the sending Party and if sent after 5:00pm on a Business Day then at the commencement of the first Business Day following transmission.
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:
- submits to the non-exclusive jurisdiction of the courts of New South Wales, and the courts competent to determine appeals from those courts, with respect to any proceedings which may be brought at any time relating in any way to this Agreement; and
- waives any objection it may have now or in the future to the venue of proceedings, and any claim it may now or in the future have that any proceedings have been brought in an inconvenient forum, where that venue falls within paragraph (a) of this clause.
23. Interpretation Principles
23.1 General Rules
The following rules of interpretation apply unless the context requires otherwise.
- headings are for convenience only and do not affect interpretation.
- the singular includes the plural and conversely, and a gender includes all genders.
- a reference to a ‘person’ includes a body corporate, an unincorporated body or other entity and conversely.
- a reference to any party to this Agreement or any other agreement or document includes the party’s successors and permitted assigns.
- an agreement, representation or warranty on the part two or more persons binds each and all of them and in favour of two or more persons is for the benefit of each and all of them.
- a reference to any agreement or document is to that agreement or document as amended, novated, supplemented, varied or replaced from time to time, except to the extent prohibited by this Agreement or that other agreement or document.
- a reference to any legislation or to any provision of any legislation includes any modification or re-enactment of it, any legislative provision substituted for it an all regulations and statutory instruments issued under it.
- a reference to dollars or $ is to Australian currency.
- a reference to conduct includes any omission and any statement or undertaking, whether or not in writing.
- where examples of a thing or set of things are given by reference to the word “including”, the meaning of references to the thing or set of things is not to be limited by reference to the examples.
- this document or any part of it is not so be construed against a party because that party drafted or proposed it.
- where an act is required to be performed or a payment required to be made on a day that is not a Business Day, the act will be required to be performed or the payment required to be made on the following Business Day.
- expressions used in this Agreement that are defined in the Copyright Act 1968 (Cth) that are not separately defined in this Agreement have the meanings attributed to them in that Act.
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:
- have a clear graphical design, with high quality graphic presentation and adequate search and navigation capabilities including a finder for ASICS’ Products;
- contain all content necessary for the Customer’s consumers to make a decision to buy, including up-to-date Marketing Material;
- display details of the retail address(es) of the Approved Trading Address(es) for Customer;
- use a domain name address that reflects the name of the retail outlets of the Approved Trading Address(es) for Customer;
- to the extent permitted by law, contain a disclaimer advising the Customer’s consumers that they are purchasing their ASICS’ Products from an ‘Approved ASICS e-Retailer’ and not from ASICS Oceania Pty Limited and that all conditions of sale such as guarantees, shipping procedures, return policies and pricing are governed by the terms of trade of the Customer;
- provide the consumer with secure transaction forms using encrypted-data streams or other high standard secure encryption technologies; and
- must not promote, sell or display any product, service or material that could bring the good name of ASICS into disrepute, including the promotion or sale of counterfeit goods, dangerous or harmful products or services or the display of restricted, prohibited, offensive or inappropriate content.
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:
- on the Web Site’s home page navigation to all customer services must be easy;
- a telephone customer support service must operate during reasonable hours;
- customer service representatives must have adequate ASICS’ Product knowledge; and
- establish a procedure, acceptable to ASICS, for the satisfaction of customer complaints and the handling of returns in respect of orders through the Internet.
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.