The following Terms (Terms) constitute a legal agreement between you (Distributor) and Breville Pty Ltd (ACN 000 092 928) for the benefit of itself and its Affiliates, and shall apply with respect to any purchase order tendered to Supplier by Distributor:
- The Supplier and its Affiliates develop, market and distribute electrical commercial kitchen appliances under various brand names (including but not limited to "Breville" and "PolyScience").
- The Supplier has agreed to appoint the Distributor as a distributor of the Supplier Products in accordance with these Terms.
Affiliates means each direct or indirect corporate affiliate or related body corporate.
Change of Control of an entity means that a Person that did not have Control of the entity (either alone or with associates) subsequently gains Control (either alone or with associates).
Confidential Information means the following information, regardless of whether in oral, written, electronic, or other form, relating to the Supplier or any of its Affiliates:
- all information and know‑how relating to the supply of the Supplier Products, the Intellectual Property and the Supplier's business;
- all information regarding the Supplier Products that is not otherwise in the public domain;
- customer lists and the content of the agreements entered into with customers, price lists, sales volumes, forecasts, trade secrets, personal files, work or purchase orders, and other documents based on or including any Confidential Information, and any form of intellectual property that, in any case, may or may not bear the words "confidential" or "secret" and any tangible or intangible copy or derivative work thereof whether in printed, machine readable, digital, or any other form; and
- all other information treated by the Supplier as confidential or that the Distributor does or should know is a trade secret or confidential information.
Control of an entity includes the direct or indirect power to direct the management or policies of the entity or control the membership of the board of directors or other governing body; whether or not the power has statutory, legal or equitable force or is based on statutory, legal or equitable rights, and whether or not it arises by means of trusts, agreements, arrangements, understandings, practices, the ownership of any interest in shares or stock of that entity or otherwise.
Distribution Term means the temporal duration of the non-exclusive distribution arrangement described in these Terms.
End User means a Person who is supplied a Supplier Product directly or indirectly by the Distributor with the intention that such Person will use the Supplier Product.
Intellectual Property means all of the following owned by the Supplier or its Affiliates, or to which the Supplier or its Affiliates have rights: (i) Patents; (ii) Trademarks; (iii) internet domain names, whether or not Trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, websites, and URLs; (iv) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software, and firmware, data, data files, and databases and other specifications and documentation; (v) trade secrets; and (vi) all industrial and other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the laws of any jurisdiction throughout in any part of the world.
Minimum Order Quantity means the quantity specified in the Price List provided to the Distributor.
Patents means all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions, and extensions thereof), patent applications, and other patent rights and any other governmental authority-issued indicia of invention ownership (including inventor's certificates, petty patents, and patent utility models).
Person means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, Governmental Authority, or any other entity.
Substantial Defect means a defect in any Supplier Product endemic to the manufacturing that (i) causes a Supplier Product to fail to perform functions required for its normal use as described in the instructional manual of that Supplier Product; and, (ii) occurs on 5% or more of the total number that the Supplier has shipped to the Distributor in the prior 12 month period of any one type of Supplier Product (as measured by returns from customers). Any defect that occurs on less than 5% of the total number shipped of any one type of Supplier Product will not constitute a Substantial Defect and will be the responsibility of the Distributor.
Supplier Products means the products sold by the Supplier to the Distributor as identified in any Price List.
Subject to these Terms, the Supplier appoints the Distributor, and the Distributor accepts the appointment, as a non-exclusive distributor of Supplier Products in the Territory and only in the Territory for the Distribution Term. Except to the extent prohibited by law, the territories outside the Territory are expressly reserved for the Supplier or other resellers and the Distributor may not, at any time, seek customers for the Supplier Products in such reserved areas.
2.2 Sale through Dealers
As a wholesale distributor of Supplier Products in the Territory during the Distribution Term, the Distributor will purchase Supplier Products from the Supplier and sell the Supplier Products through approved retailers/dealers or directly to the End User. Except to the extent contrary to law, the Distributor may not sell Supplier Products to "big box" or "large format" or other non-premium retailers without the Suppliers' prior written consent.
- Distributor responsibilities
The Distributor must:
- Market, distribute and sell the Supplier Products solely under the brand and product names authorised by the Supplier;
- use best efforts to purchase, market, warehouse and distribute the Supplier Products in the Territory and perform its other obligations set out in these Terms;
- exercise reasonable care and diligence in carrying out its rights and obligations under these Terms;
- use its best efforts to market, promote and sell the entire line of Supplier Products specified on the Price List, including, without limitation: engaging in trade shows product training, culinary training using the Supplier Products, establishing a web presence, use of social media, cooperation with schools, educational institutions and industry organizations;
- use its best efforts to enhance the reputation of the Supplier brand names identified in the Price List and the Trademarks;
- unless otherwise directed by the Supplier, and upon compensation terms mutually agreed, translate each Supplier Product instruction booklet, warranty, and other relevant sales materials to the required and/or preferred languages of the Territory and deliver such translation to the Supplier for inclusion withSupplier Products distributed in the Territory; the Supplier may reject any order from the Distributor until such translation(s) has been delivered to the Supplier;
- provide to the Supplier, within ninety (90) days of acceptance of these Terms and then on each successive annual anniversary, a sales forecast extending for 12 months, or such other period as may be agreed;
- require, in any contract between the Distributor and any dealer, that the dealer refrain from selling any Supplier Product on or through amazon.com, ebay.com, or any similar online re-seller;
- inform the Supplier as soon as practicable if it becomes aware of any unauthorized imports into the Territory of the Supplier Products and must provide any reasonable assistance requested by the Supplier to prevent and stop unauthorized imports and any prohibited sales; and
- comply with all applicable laws and regulations in carrying out its obligations and exercising its rights under these Terms.
- The Distributor must not, except to the extent the following are contrary to applicable law:
- do or omit to do any act or thing prejudicial to the image or the reputation of the Supplier, the Supplier's brand name or the Supplier Products;
- use the Trademarks or any Intellectual Property of the Supplier or its Affiliates in relation to any products, except Supplier Products;
- use the Trademarks or any Intellectual Property of the Supplier or its Affiliates in any manner that is not approved by the Supplier;
- use the Trademarks or any Intellectual Property of the Supplier or its Affiliates following the Distribution Term;
- make any false or misleading claim or statement regarding the Supplier or the Supplier Products;
- sell the Supplier Products outside the Territory or to any Person if the Distributor knows or shouldreasonably know that the Supplier Products will be re-sold or distributed outside the Territory; or
- ship or deliver the Supplier Products to any address outside the Territory, whether such shipment or delivery is to an End User or otherwise, when the sale is the result of any effort by the Distributor to sell outside the Territory.
3.3 No Authority to Bind
The Distributor has no authority to enter into contracts or agreements, or make representations, warranties or anything of a similar nature that binds the Supplier or creates any obligation on the part of the Supplier. The Supplier has no liability with respect to what is agreed between the Distributor, End User, or any reseller.
4.1 Range of Supplier Products
The Supplier will from time to time provide the Distributor with Price List specifying:
- a list of the Supplier Products, by SKU, that are available for the Distributor to order direct from the Supplier;
- a price list indicating the list price and discounted price of each of the Supplier Products, also indicating currency;
- any minimum order quantities; and
- brand and product names, product descriptions, images of products, and any other pertinent information.
Changes to the price of any Supplier Products may be increased annually or, otherwise, on not less than 30 days' written notice to the Distributor.
4.3 Delivery and orders
- The Supplier will sell and the Distributor will buy, in accordance with the Supplier's purchase order policy (which may be provided to the Distributor and updated from time to time), those Supplier Products for which the Distributor has placed an order in writing. Supplier Products will be delivered, at the discretion of the Supplier on the basis of (Incoterms® 2020) FOB or EXW (at the port from which the Supplier Product is to be shipped to the Distributor), or such other basis as may be specified by the Supplier.
- Title to the Supplier Products will remain with Supplier until full payment for the Supplier Products has been made and all other monies owing by the Distributor on any account have been paid.
Unless otherwise agreed by the Supplier, the Distributor must pay for any Supplier Products within 30 days of the earlier of (i) the date of the Supplier's invoice or (ii) collection by the Distributor's nominated freight forwarder of the Supplier Products from the port from where the Supplier Products are to be shipped to the Territory.
The Distributor shall indemnify and keep indemnified the Supplier from and against any actions, claims, proceedings, losses and expenses made or incurred by or against the Supplier or its Affiliates which arise other than through the direct fault of the Supplier.
The Distributor shall promptly refer to the Supplier any enquiries regarding a sale or possible sale of Supplier Products outside the Territory.
5. Branding rights of the Distributor
- The Distributor is entitled to develop and undertake its own marketing and promotional activities with respect to the sale of the Supplier Products in the Territory, provided that any marketing and promotional materials and activities are consistent with the Suppliers applicable standards The Distributor shall discontinue any specific activities, or use of any specific materials, upon the request of the Supplier.
- The Distributor will:
- not use the Trademarks in its name or any business name owned or used by the Distributor; and
- procure that each reseller does not use any of the Trademarks in their name or any business name owned or used by such reseller.
- Other than as contemplated by these Terms, the Distributor must not use a mark, sign, device or name which is substantially identical or deceptively similar to any of the Trademarks.
- The Distributor must not use any name, trademark, inscription or logo (other than the Trademarks):
- on or in connection with the Supplier Products; or
- in any advertising or promotional material in connection with the Supplier Products.
All Supplier Products will be free from any Substantial Defect for the period of time specified in the product warranty card for the applicable Supplier Product, subject to the rights and limitations specified in such warranty card. The following procedures will apply to warranty claims:
- For any request for repair of the Supplier Products made within the warranty period, the Supplier is responsible for the cost of replacement parts and shall provide such replacement parts free of charge. The Distributor is obligated to make such repairs and is solely responsible for labor costs. For any request for repair of the Supplier Products made outside the warranty period, the Supplier shall endeavor to provide such parts for repairs but may charge the Distributor the for the parts, and the Distributor is solely responsible for performing such out-of-warranty repairs but may charge the End User for the reasonable labor costs for such repairs.
- The warranty is effective from the time of Supplier Product purchase by the End User, provided that the Supplier shall not be obligated to honor any request for warranty repair or replacement of any Supplier Products that was not sold to End User for more than six (6) months after the date any Supplier Products are delivered to the Distributor. A proof of purchase is required for any warranty claim.
- The Distributor shall inspect all equipment submitted by any End User for repair or replacement for induced failures, water damage and lack of regular maintenance.
- The Distributor shall share its findings from a warranty claims inspections with the Supplier and submit the RMA form for each claim.
- The Distributor is responsible for keeping sufficient inventory levels of replacement parts necessary for product repairs.
- The Supplier will issue a credit to the Distributor's account for the cost of replacement parts which the Supplier is obligated to provide, but will not pay shipping costs for delivery of these parts to the Distributor's location.
- Any claims by resellers and/or End Users under the commercial warranty will be dealt with by the Distributor and the Distributor will meet all of the Supplier's obligations (if any) under the commercial warranty.
The Distributor indemnifies, and agrees to keep indemnified, the Supplier and its Affiliates from and against all expenses, costs, liabilities, claims, actions, proceedings, damages, judgments and losses, including, but not limited to, attorney's fees and court expenses and fees, incurred or suffered by the Supplier or any of its Affiliates arising out of, caused by, attributable to or resulting from the Distributor's breach of its obligations under these Terms.
8. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE SUPPLIER'S LIABILITY EXCEED THE PAYMENTS RECEIVED FROM THE DISTRIBUTOR DURING THE PERIOD BEGINNING TWELVE (12) MONTHS PRECEDING THE DATE OF THE INCIDENT CAUSING THE CLAIM UNTIL THE DATE OF THE INCIDENT CAUSING THE CLAIM. THE SUPPLIER SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF REPUTATION, LOSS OF GOODWILL, LOSS OF USE, INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, STATUTORY, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND OR UNDER ANY THEORY OF LAW, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR THE SUPPLIER IS AWARE OF OR NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, THE SUPPLIER DISCLAIMS ANY AND ALL WARRANTIES.
9.1 Conditions of Termination
The Supplier may terminate these Terms immediately by written notice to the Distributor if:
- the Distributor becomes insolvent;
- there is a Change of Control of the Distributor;
- the Distributor has registered, attempts to register, registers or becomes entitled to register any of the Supplier's Intellectual Property in the Territory or anywhere else in the world and after the Supplier's request to do so, refuses to immediately assign those rights for no charge to the Supplier; or
- the Distributor commits a breach of these Terms and either the breach is not capable of being cured; or the breach is capable of being cured and the Distributor fails to cure the breach within 15 days of being notified of the breach by the Supplier; or the breach has repetitively occurred.
The Supplier shall have the right to terminate these Terms by providing fourteen (14) days written notice to the Distributor:
(i) if the Distributor fails to take any action within 30 days following the commencement date of the distribution relationship to launch the Supplier Products in the Territory; or
(ii) if the Distributor fails to meet any Minimum Order Requirements for any period of the Term.
The Supplier may terminate these Terms for convenience by giving 120 days' written notice to the Distributor at any time. The Supplier may terminate these Terms for convenience with immediate effect by giving written notice to the Distributor at any time if any government agency requires or directs the Supplier to terminate these Terms (in whole or in part).
The Distributor may terminate these Terms on the grounds of breach if the Supplier materially breaches these Terms and fails to remedy such breach within 30 business days after receipt of written notice from the Distributor notifying the material breach. The Distributor may terminate these Terms in whole or in part for convenience by giving 120 days' written notice to the Supplier at any time, subject to the Distributor's continued performance of any outstanding obligations.
9.2 No Waiver
Waiver by the either party of its right to terminate because of any breach by the other party shall not constitute a waiver of any subsequent breach of the same or different nature. No termination of these Terms by expiration or otherwise shall relieve or release any party from any of its obligations hereunder with respect to actions or omissions prior to the termination. All provisions of these Terms that are by their nature intended or designed (whether express or otherwise) to survive the duration or termination of these Terms including, without limitation, all provisions related to confidential information, intellectual property, indemnification and limitations of liability, shall survive termination of these Terms.
9.3 Actions following Termination
If and only if requested by the Supplier, upon expiration or termination of these Terms for any reason, the Distributor shall:
- continue to sell the existing stock of Supplier Products in accordance with these Terms for a period of up to six (6) months following such expiration or termination (with any unsold Supplier Products in re-saleable condition at the end of that six (6) month period to be purchased by the Supplier, or a third party designated by the Supplier, for a price equal to the landed price at which the same were purchased by the Distributor from the Supplier); or
- sell its existing inventory at the date of expiration or termination of these Terms of the Supplier Products in re-saleable condition to the Supplier, or a third party designated by the Supplier, for a price equal to the landed price at which the Supplier Products were purchased by the Distributor from the Supplier. In the event re-saleable condition inventory is purchased by the Supplier, or a third party at the Supplier's direction, the Distributor shall be responsible for all costs associated with packing the goods onto a pallet, container or other transportation format that provides reasonable protection for shipment, and the Supplier shall pay all costs associated with the shipment of the goods from the Distributor back to the Supplier or to the Supplier designated purchaser.
The Supplier's payment for all goods in re-saleable condition shall be due thirty (30) days after the Supplier's receipt of shipment.
9.3 Post-Termination Obligations & Liability
Upon expiration or termination of these Terms,
(a) all outstanding unpaid invoices shall become due and payable immediately and the Distributor shall ensure that all debts shall be settled within seven (7) days from the effective date of expiration or termination;and
(b) the Distributor will immediately return to the Supplier all Confidential Information and advertising, promotional and publicity material and shall stop using any Confidential Information; and upon request the Distributor shall supply the Supplier with a list of the Distributor's sub-distributors, dealers, customers, prospects, and stockists.
The Supplier shall not, by reason of the expiration or termination of these Terms, bе liable to the Distributor for compensation, reimbursement or damages on account of аnу loss of prospective profits or anticipated sales or on account of expenditures. investments, leases, or commitments made in connection with these Terms or the anticipation of extended terms hereunder. THE DISTRIBUTOR AGREES THAT, IN THE EVENT OF ANY TERMINATION OF THESE TERMS, IT SHALL HAVE NO RIGHTS TO DAMAGES OR INDEMNIFICATION OF ANY NATURE, SPECIFICALLY INCLUDING COMMERCIAL SEVERANCE PAY, WHETHER BY WAY OF LOSS OF FUTURE PROFITS, EXPENDITURES FOR PROMOTION OF ANY PRODUCT, OR OTHER COMMITMENTS IN CONNECTION WITH THE BUSINESS AND/OR GOOD WILL OF THE DISTRIBUTOR. THE DISTRIBUTOR EXPRESSLY WAIVES AND RENOUNCES ANY CLAIM TO COMPENSATION OR INDEMNITIES FOR ANY TERMINATION OF A BUSINESS RELATIONSHIP.
Upon expiration or termination of these Terms, the Distributor will continue to be obligated to address all product returns and customer service requests in the best interests of the End Users. If requested by the Supplier, the Supplier and the Distributor will negotiate in good faith shifting customer service and product return functions to the Supplier in exchange for appropriate compensation to be paid by the Distributor to the Supplier, with estimation of incidence of returns and service to be predicated on recent historical data. Unless the Distributor's financial responsibility for product returns and customer service have been expressly discharged by the Supplier in writing, the Distributor shall continue to be obligated.
The Distributor may not at any time:
challenge, contest or deny the validity of:
- the Intellectual Property;
- the right or title of the Supplier and its Affiliates in and to the Intellectual Property; or
- the grant of any Intellectual Property right to the Supplier in respect of the Intellectual Property;
- claim any title to or right to use the Intellectual Property except pursuant to these Terms; or
- do any act which may invalidate or put in dispute the validity of the Trademarks or their registration or the Supplier's claim to the ownership or use of the Trademarks.
The Distributor must not apply for the registration of any Trademarks or other mark that are substantially identical or deceptively similar to any of the Trademarks for any goods or services in any jurisdiction.
11.1 Service of notices
A notice, demand, consent, approval or communication under these Terms must be in writing, in English and either mailed or emailed, with confirmation or acknowledgement of receipt.
These Terms may be altered or amended by the Supplier upon notice to the Distributor, which may include notice where these Terms are posted of the incidence of an update. Neither party shall be deemed to have waived any provision of or right under these Terms, except in writing signed by each party.
11.3 Entire agreement
These Terms, any Price Lists provided to the Distributor, and the product warranty cards constitute the entire agreement between the parties in connection with the subject matter hereof and thereof and supersede all previous agreements or understandings between the parties in connection with such subject matter. The Supplier expressly rejects any terms and conditions included in any purchase order or other transactional documents proffered by the Distributor, irrespective of whether (i) such terms and conditions are delivered before or after the effective date of these Terms, (ii) the Supplier transacts business in response to offers or requests made in any purchase order, (iii) such terms and conditions purport to create a binding agreement, or (iv) any transactions between the parties purport to be conditioned on such terms and conditions.
These Terms do not create a relationship of employment, trust, agency, joint venture or partnership between the parties.
A party may only use Confidential Information of another party for the purposes of these Terms, and must keep the existence and these Terms and any Confidential Information of another party confidential except where:
- the information is public knowledge (but not due to a breach of these Terms) or the party has independently created the information;
- disclosure is required by law or a regulatory body (including a relevant stock exchange) or required by a court order; or
- disclosure is made to a Person who must know for the purposes of executing the transactions contemplated by these Terms on the basis that the Person keeps the information confidential.
11.6 Choice of Law, Venue and Jurisdiction
The formation, construction, and performance of these Terms shall be construed, interpreted, governed, applied and enforced in accordance with the laws of New South Wales applicable to agreements entered into and performed entirely therein by residents thereof, without regard to any provisions relating to conflicts of laws among different jurisdictions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. Each of the parties hereto irrevocably submits to the exclusive jurisdiction and venue of the courts located in New South Wales to resolve any dispute related to these Terms or arising hereunder. Each of the parties hereby irrevocably waives any objection it may now or hereafter have as to the venue of any such action or proceeding brought in such court including but not limited to any objection that such court is an inconvenient forum.
The Distributor may not assign its rights or delegate its obligations under these Terms, in whole or in part, without the prior written consent of the Supplier. The obligations and liabilities imposed, and the rights and benefits conferred, on the parties under these Terms shall be binding upon and inure in favour of the respective parties and each of their respective successors in title, transferees and assigns.
* * *