Please note: this Wholesale Distribution Agreement is copyright of Kekoa LTD and as such cannot be be reproduced in full or part.
BLOSSOM BABY CONSULTING LIMITED (New Zealand company number 6167667) (Supplier)
DISTRIBUTOR [YOU] (Distributor)
- The Supplier owns the Intellectual Property Rights in, and arranges the manufacture and sale of, the Products.
- The Supplier has agreed to grant to the Distributor the right to sell, market, promote and distribute the Products throughout the Territory on the terms and conditions set out below.
- DEFINITIONS AND INTERPRETATION
Definitions: In this Agreement, including the Introduction, the following terms will have the following meanings:
Agreement means this agreement and includes the Schedules;
Business Day means any day, excluding Saturdays, Sundays, any day in the period from 24 December until 5 January, or any statutory public holidays in Lake Hawea, New Zealand;
Change of Control means any change in the effective management or control of the Distributor including any change arising from:
- a change in the legal or beneficial ownership of the Distributor’s shares; or
- the issue of new capital in the Distributor;
Commencement Date means [the date this Agreement is executed by both parties];
Confidential Information means all information of any kind, whether or not it is in tangible or documentary form, and whether or not marked or identified as being confidential, relating to the Supplier or its business affairs and includes information relating to:
- the Products, including the design and manufacture of the Products;
- the business operations, business strategies, marketing plans and technologies of the Supplier; and
- the terms of this Agreement;
Dispute Notice has the meaning given to that term in clause 15.2;
FOB means Free on Board, as that term is defined in Incoterms 2000, published by the International Chamber of Commerce.
Intellectual Property Rights means all industrial and intellectual property rights whether conferred by statute, at common law or in equity, including, but not limited to, all copyright and similar rights that may subsist in works or other subject matter, rights in relation to inventions (including all patents and patent applications), trade secrets and know-how, rights in relation to designs (whether or not registrable), rights in relation to registered and unregistered trade marks, business names and rights in relation to domain names;
Mediation has the meaning given to that term in clause 15.3;
Mediation Notice has the meaning given to that term in clause 15.3;
Port means the port of shipment located Wanaka, New Zealand or such other port which is agreed in writing by the parties;
Products means the products as more particularly described in Schedule 1, together with such other products as the parties may agree in writing from time to time;
Term means the period of 12 months from the Commencement Date, as may be extended pursuant to clause 3.2;
Territory means physical selling area agreed upon [see note below regarding the European Union];
Trade Marks means the trade marks (together with particulars of any applications or registrations for those trade marks) specified in Schedule 2, or as otherwise notified by the Supplier in writing to the Distributor from time to time; and
Warranty Period means the period of 12 months from the date of pick-up of any Product.
Interpretation: In this Agreement:
- clause headings are for ease of reference only and are not relevant to interpretation;
- words in the singular number include the plural and vice versa;
including and similar words do not imply any limitation;
- references to a person includes an individual, firm, company, corporation or unincorporated body of persons, any public, territorial or regional authority, any government, and any agency of any government or of any such authority;
- references to clauses and the Schedules are to clauses and Schedules in this Agreement; and
- where a word, or phrase is defined, its other grammatical forms have a corresponding meaning.
- GRANT OF RIGHTS
Grant: The Supplier grants to the Distributor the non-exclusive right to sell, market, promote and distribute the Products in the Territory, subject to the terms and conditions of this Agreement.
Territory: The Distributor will sell, market, promote and distribute the Products only in the Territory. The Distributor will not either directly or indirectly sell, market, promote, distribute, export, ship, or otherwise deliver the Products:
- outside the Territory; or
- inside the Territory in circumstances where the Distributor knows or ought to know, or is put on notice by the Supplier or any other person, that the Products may be resold, distributed or delivered outside of the Territory,
without the prior written consent of the Supplier.
[Note: This territorial restriction should not be used in European Union countries without careful consideration. The basic rule in the EU is that such restrictions are not permitted, although there are a number of important exceptions to this rule. If in doubt, replace the word “Territory” throughout the clause with the words “European Union”. ]
- TERM AND EXTENSION
Term: This Agreement will commence on the Commencement Date and, unless earlier terminated in accordance with its terms, will continue until the end of the Term.
Extension: The initial Term, or any extension thereof, may be extended by the written agreement of the parties.
- No quotation for Products given by the Supplier will be valid unless the Distributor accepts it by placing an order for the relevant Products in accordance with clause 5 and within 14 days from the date it is given.
- The Supplier may withdraw any quotation any time before acceptance by the Distributor.
- No quotation will be binding on the Supplier if such quotation was given based on incomplete, inaccurate or misleading information provided by the Distributor.
Price: The price for the Products will be the price specified in a binding quotation under clause 4.1. If no binding quotation is in place, the prices will be as notified in writing by the Supplier to the Distributor.
Variation of price: The Supplier may vary the price for the Products at any time by giving written notice to the Distributor, to reflect changes in exchange rates, materials, delivery, freight costs, costs of labour, or other costs incurred by the Supplier.
Errors: Pricing errors may be corrected by the Supplier at any time.
Orders: The Distributor will place orders for the Products with the Supplier. Each order will be in writing, will be in a format approved by the Supplier, will be sent by facsimile, email or other electronic means approved by the Supplier and will specify:
- the date of the order; and
- the volume and type of Products ordered.
Verbal orders: Any verbal order for the Products will be at the Distributor’s risk.
Minimum Order Quantity: Each order must be for at least the minimum order quantity specified by the Supplier from time to time.
Refusal of orders: The Supplier:
- is not obliged to accept any order received from the Distributor;
- may refuse to accept an order without stating a reason; and
- may cancel any order for Products before pickup of the Products by the Distributor without liability.
Acceptance of Orders: Where the Supplier accepts an order, unless agreed otherwise in writing with the Distributor, the Supplier will issue an invoice to the Distributor for 100% of the price of Products.
Contract: On the acceptance of an order by the Supplier (as evidenced by the issuing of an invoice under clause 5.4 or otherwise), a binding contract to supply such Products will exist, and the Distributor may not cancel such order without the Supplier’s written consent.
Delivery to Port: The Supplier will advise the Distributor in writing when the Products are ready for delivery. The Distributor must provide the Supplier with all necessary shipping documents to enable the Supplier to deliver the Products to the Port. If, as a result of delay by the Distributor in arranging shipping, the Products cannot be delivered to the Port within three business days of the Supplier advising the Distributor in writing that the Products are ready for delivery, then the Supplier will be entitled to charge the Distributor for its reasonable costs incurred in storing the Products. The Supplier may, if requested by the Distributor, organise the shipping of the Products at the Distributor’s risk and cost.
Payment dependent: The Supplier will not be obliged to make any delivery under clause 6.1 where the Distributor has not complied with the payment terms in clause 7.1 in respect of any Products. The Supplier will not be responsible or liable in such circumstances if the Distributor fails to comply with any of the terms of clause 6.1.
Costs: The Supplier will meet all costs for delivering the Products to the Port. The Distributor must meet all freight costs, import and export duties and taxes and all other costs for importing and distributing the Products within the Territory, including any costs incurred in any importation pre-inspection of the Products.
Risk and Title: Risk in the Products will pass to the Distributor upon delivery by the Supplier FOB. Title in the Products will be retained by the Supplier until payment in full is received for such Products.
Shortfalls: In the event of an alleged shortfall in any Products picked up or received, the Distributor will submit a written claim to the Supplier within seven days of the date of pickup or receipt. In the absence of such a written claim, the Products will be deemed to have been supplied in accordance with this Agreement. In no event will the Distributor be entitled to refuse to accept any order by reason only of a shortfall.
- PAYMENT TERMS
Payment: The Distributor will pay the invoice issued by the Supplier under clause 5.5 within 5 Business Days of receipt.
Terms: All sums due to the Supplier:
- are exclusive of any sales tax or value added tax which, where applicable, must be paid by the Distributor to the Supplier in addition on the Supplier’s provision of an appropriate tax invoice;
- must be paid in the currency and to the credit of a bank account designated in writing by the Supplier; and
- will be paid in cleared funds without deduction or set-off of any kind and by the due date, failing which:
- the Supplier may charge interest on any outstanding amount at a rate equivalent to the rate of the Supplier’s banker’s highest standard annual interest rate for commercial overdrafts during the period of non-payment plus 5% compounded daily, from the due date until the date of actual payment; and
- if the Supplier incurs any costs or expenses due to the Distributor’s failure to pay any amount by the applicable due date, the Distributor must reimburse the Supplier for all costs and expenses that the Supplier incurs in connection with any actions or proceedings for recovery of such amounts, including all reasonable accounting costs, attorney costs (on a solicitor and own client basis), court costs and debt collection costs.
Warranty: Subject to clause 8.2 and clause 8.3, the Supplier warrants that all Products supplied to the Distributor will be of merchantable quality and free from manufacturing defects (unless expressly stated otherwise by the Supplier) for the Warranty Period.
Exclusion of warranty: The warranty in clause 8.1 does not apply to the extent that the Products are not of merchantable quality or are not free from manufacturing defects due to:
- use, modification or alteration of the Products other than as recommended or authorised in writing by the Supplier (including in the information on the Supplier’s website);
- improper storage of the Products;
- damage or defects caused by fire or excessive heat; or
- physical damage caused to the Products during loading onto the Distributor’s carrier or following pickup.
Remedy: The Distributor’s sole remedy for any Products that breach warranty in clause 8.1 will be (at the option and cost of the Supplier) for the Supplier to repair or replace such Products, or give to the Distributor a full credit or refund for such Products provided that:
- if requested by the Supplier, the Distributor first returns the Products to the Supplier to be examined, and gives the Supplier the opportunity to investigate the alleged reason for the breach of warranty; and
- the Distributor must notify the Supplier in writing of the relevant breach within the applicable Warranty Period for the Products, and no later than seven days following the date the Distributor first became aware of the breach.
Business purposes: The Products are supplied to the Distributor for business purposes only.
No implied warranties: Except as expressly provided in this Agreement, the Supplier gives no warranty in relation to the Products, either express or implied, including but not limited to any implied warranty relating to quality, fitness for any particular purpose or ability to achieve a particular result.
- DISTRIBUTOR’S OBLIGATIONS
Obligations: The Distributor must:
- conduct its business as the Distributor of the Products in a professional and ethical manner so as to maintain the goodwill, integrity and prestige of the Supplier, the Products and the Trade Marks;
- preserve the brand profile, target market focus and quality image of the Products as required by the Supplier;
- ensure that all of its employees, contractors and agents comply with the provisions of this Agreement;
- use its best efforts to market and promote the Products in the Territory to increase sales by the maximum amount possible;
- maintain an adequate sales and marketing workforce, sales and warehousing facilities and other resources, infrastructure and services to promote sales of the Products in the Territory;
- ensure its salespeople and representatives behave professionally and are properly trained in the uses, advantages and benefits of the Products and that they attend such training sessions relating to the Products that the Supplier reasonably regards as necessary or appropriate from time to time at the Distributor’s expense;
- promptly notify the Supplier in writing of any Product developments and problems that may arise from time to time;
- ensure that all customer queries are handled promptly and efficiently;
- ensure that its prices for the Products are competitive while preserving the brand profile, target market focus and quality image of the Products required by the Supplier;
- maintain and keep accurate and up to date books and records concerning the business of the Distributor, and provide the Supplier with the following reports (in the manner and form reasonably requested by the Supplier from time to time):
- quarterly sales reports listing sales by Product type and by customer, and providing previous-quarter and year-to-date figures;
- quarterly Product demand forecasts;
- quarterly reports detailing the Distributor’s promotional, advertising and marketing activities concerning the Products; and
- such other reports as the Supplier may request in connection with the business of the Distributor or the Products from time to time;
- pay for all costs and expenses incidental to the operation of its business (including all administrative, invoicing, debtor and creditor costs that it incurs), and procure all necessary product certifications, permits, approvals and licences required to import the Products into the Territory, and to distribute, promote and sell the Products in the Territory;
- provide an after-sales service to its customers to assist customers with any queries, issues or complaints they may have in relation to the Products, and provide a replacement service for defective Products;
- promptly report to the Supplier all customer complaints or potential claims in connection with the Products and all adverse (or potentially adverse) publicity concerning the Products, the Supplier or the Distributor. The Distributor will assist the Supplier to the fullest extent possible in carrying out any Product recall that may be required by the Supplier, or that may become necessary under any applicable laws;
- receive, warehouse and distribute the Products in a manner that preserves the integrity and quality of the Products, and permit the Supplier’s representatives to enter the Distributor's storage facilities on reasonable notice, to inspect the Products, equipment and materials used in storing, selling and distributing the Products; and
- for the Term and for three years afterwards, obtain and maintain at its cost, adequate product liability insurance, with a reputable insurance company approved by the Supplier. Such insurance cover must name the Supplier as an interested party. The Distributor must provide the Supplier with satisfactory proof of such insurance coverage on request together with confirmation from the insurer that the Supplier will be given at least 15 Business Days’ notice of any alteration or cancellation of the insurance cover.
Minimum purchase: The Distributor must purchase from the Supplier within each order, after deduction for any discounts or free samples, no less than $NZ 500 value of Products. Any failure to do so will be a material breach of this Agreement.
Non compete: During the Term [and for a period of 18 months afterwards], the Distributor must not (and must ensure that its shareholders and directors do not) on its own or with any other person or as a shareholder, director, nominee or trustee of any other person, develop, design, manufacture, or organise the manufacture of any products similar to, or in competition with the Products, without the Supplier’s prior written consent.
Approval of marketing:
- The Distributor must obtain the prior written approval of the Supplier for each and every use of the Trade Marks.
- The Distributor will supply the Supplier with copies of all materials to be used in connection with the marketing, promotion and sale of the Products including posters, signs, brochures, catalogues, manuals, sell sheets, newspaper, magazine, radio and television and internet advertisements, website presence, promotional items, including articles of clothing and the like, and all materials that in any way use the Trade Marks.
- The Distributor’s use of any materials listed in clause 10.1(d), and any Trade Marks, will be subject to such terms, conditions and restrictions that the Supplier determines, in its absolute discretion, are in the best interests of the Supplier.
Time period for approval: The Supplier will use all reasonable endeavours to advise the Distributor whether or not it approves any use of the Trade Marks under clause 10.1(c), within 5 Business Days of receipt of a written request to do so, provided such request includes sufficient information about the proposed use as required by the Supplier.
Ownership of copyright:
- All copyright in all advertising and marketing materials created for the purpose of promoting or marketing the Products or that include any of the Trade Marks will be owned by the Supplier, without payment or further consideration.
- To the extent such copyright does not automatically vest in the Supplier, the Distributor hereby assigns all of its rights, title and interest in such copyright to the Supplier. the Distributor must do all such things and execute or cause others to execute such assignments or other instruments as may be required to vest such copyright in the Supplier.
- The Distributor will be entitled to use and reproduce any advertising materials under this clause 10.3 for the purpose of marketing and promoting the Products in accordance with this Agreement.
Materials warranty: The Distributor warrants that the advertising materials created by or at the direction of the Distributor will:
- not infringe the Intellectual Property Rights of any other person; and
- comply with all applicable legal and regulatory requirements.
Actions on breach: If the Distributor uses any materials in breach of this clause 10, the Distributor must immediately cease all use of such materials or destroy them or deliver them to the Supplier at the written request of the Supplier.
- TRADE MARKS AND INTELLECTUAL PROPERTY RIGHTS
Trade Marks: The Supplier grants to the Distributor a non-exclusive, non-transferable, non-sublicensable right to use the Trade Marks and other Intellectual Property Rights in and to the Products, in connection with the promotion, distribution and sale of the Products in the Territory for the Term and subject to the terms of this Agreement.
Conditions of use: The Distributor must:
- ensure that the Trade Marks are used only on the Products, or in relation to the promotion, distribution and sale of, the Products;
- not use the Trade Marks in conjunction with any other trade mark, or trading style, company name, brand name, designation, word or material without the prior written consent of the Supplier;
- not promote or sell the Products under any trade mark, brand name, designation, word or material other than the Trade Marks without the Supplier’s prior written consent, except that the Distributor may identify itself as an authorised the Distributor of the Products;
- ensure that in each case where the Trade Marks are used, the Trade Marks are accompanied by such wording as specified by the Supplier in writing from time to time to indicate the ownership of the Trade Marks;
- fully comply with all the quality standards, guidelines, recommendations and requirements specified by the Supplier from time to time with regard to the use of the Trade Marks;
- not at any time during the Term or afterwards:
- directly or indirectly challenge or contest the validity of the Trade Marks or the Intellectual Property Rights in and to the Product or the rights of the Supplier in and to the Trade Marks or the Intellectual Property Rights in and to the Products;
- engage in any conduct or permit any conduct to be engaged in that will or that in the opinion of the Supplier would or would be likely to, impair or jeopardise the rights of the Supplier in the Trade Marks; or
- use or register or be involved either directly or indirectly in the use or registration of, any name, URL address, domain name, or trading style that incorporates or is based on the Trade Marks or any name, word, logo or device that is confusingly or deceptively similar to the Trade Marks; and
- if requested by the Supplier, provide all assistance required by the Supplier to obtain registration of the Distributor as a registered user of the Trade Marks in the Territory.
Goodwill: The Distributor agrees that the benefit of:
- all use of the Trade Marks including all goodwill arising from the Distributor’s use of the Trade Marks; and
- all use of any name, address or trading style, under clause 11.2(f)(iii) including all goodwill arising from the Distributor’s use of such name, address or trading style, will at all times be for and owned by, the Supplier.
Ownership of Intellectual Property Rights:
- The Supplier is the owner of the Intellectual Property Rights in and to the Products and Trade Marks and any improvements, developments or modifications made by either party to the Products.
- Without limiting the Distributor’s other obligations under this Agreement, the Distributor agrees that it will not use the Products, or any Confidential Information, to produce any product in competition with the Supplier.
- Except as expressly set out in this Agreement, the Distributor does not acquire any right, title or interest in or to such Intellectual Property Rights.
- The Distributor must execute, acknowledge and deliver all instruments, make all applications and do all things, as may be necessary or appropriate to ensure that all Intellectual Property Rights in any improvements, developments or modifications to the Products vest in the Supplier.
- The Distributor will ensure that all of its contracts with retailers for sale of the Products contain prominent statements that the Supplier is the owner of the Intellectual Property Rights in and to the Products, and that any copying or manufacture of such components will be an infringement of the Supplier’s proprietary rights.
Improper use: The Distributor will promptly bring to the attention of the Supplier any improper or wrongful use of the Trade Marks or any other Intellectual Property Rights owned or claimed to be owned by the Supplier, that come to the Distributor’s notice and will assist the Supplier at the Supplier’s expense in taking all necessary steps to protect and defend such rights (without implying any obligation on the part of the Supplier to take such steps).
No obligation to maintain: Nothing in this Agreement will imply any obligation on the part of the Supplier to register or otherwise maintain in force any registrations of the Trade Marks or relating to the Products.
- Our Trade Marks and copyright include our registered brand name and topographical circle, our overall cut/shape and configuration of our premium nappy/diaper, our dropped back internal elastic (with/without PUL flap), and our bilayer technology internal layer (regardless of material).
Confidentiality obligations: The Distributor must maintain as secret and confidential, at all times, all Confidential Information. The Distributor agrees to:
- use the Confidential Information solely for the purposes of this Agreement; and
- disclose Confidential Information only to those of the Distributor’s employees, agents, and sub-contractors to whom, and to the extent that, such disclosure or provision is necessary for the purposes of this Agreement.
Exceptions to obligations: Clause 12.1 will not apply to Confidential Information that the Distributor can demonstrate:
- was in the Distributor’s possession before the Distributor received such Confidential Information from the Supplier, without any obligation of confidence;
- is independently acquired or developed by the Distributor without breaching any of the Distributor’s obligations under this Agreement and without use of any Confidential Information;
- is subsequently disclosed to the Distributor, without any obligations of confidence, by a third party who has not derived it, directly or indirectly, from the Supplier;
- is or becomes generally available to the public through no act or default of the Distributor or any of the Distributor’s employees, agents or sub-contractors; or
- is required to be disclosed to the courts of any competent jurisdiction, or to any government regulatory or financial authority, provided that the Distributor will:
- inform the Supplier as soon as is reasonably practicable; and
- at the Supplier’s request, seek to persuade the court or authority to have the information treated in a confidential manner (where this is possible under the court’s or authority’s procedures).
Disclosure to employees: The Distributor will ensure that any person to whom the Distributor makes any disclosure in accordance with clause 12.1(b):
- is made aware of and subject to the Distributor’s obligations under clause 12.1; and
- has entered into written undertakings of confidentiality in favour of the Distributor that are at least as restrictive as those set out in clauses 12.1 and 12.2, and that apply to the Confidential Information.
The Distributor will be responsible to the Supplier for any unauthorised disclosure of Confidential Information by such persons as if the disclosure were a disclosure by the Distributor under this clause 12.
Misuse or breach: The Distributor will notify the Supplier in writing immediately upon becoming aware of any:
- potential, threatened or actual misuse of the Confidential Information by any person to whom the Distributor makes any disclosure in accordance with clause 12.1(b); or
- breach of the Distributor’s obligations under this clause 12.
- the Distributor will co-operate with the Supplier in preventing or limiting such misuse or breach, at the cost of the Distributor.
Equitable relief: Any breach of this clause 12 by the Distributor may cause the Supplier irreparable harm for which damages would not be an adequate remedy. In addition to any other remedy available to it, the Supplier may seek equitable relief (including injunctive relief or specific performance) against any breach or threatened breach of this clause 12 by the Distributor.
- INDEMNITIES AND LIABILITY
Distributor indemnity: The Distributor indemnifies the Supplier from and against any and all liability, loss, damage and expense incurred by the Supplier arising out of or attributable to the Distributor’s breach of this Agreement, negligence or wilful misconduct.
Limitation: Subject to clause 13.4 in no event will the Supplier’s total liability under or in relation to this Agreement of whatever nature arising directly or indirectly from the Products or out of this Agreement, exceed the price paid by the Distributor for the specific Products to which the relevant claim relates.
Exclusion: Subject to clause 13.4, in no event will the Supplier be liable (whether in contract, tort, (including negligence) or in any other way) to the Distributor for:
- loss of revenue or profit, loss of anticipated savings, loss of goodwill or opportunity, loss of production, loss or corruption of data or wasted management or staff time; or
- loss, damage, cost or expense of any kind whatsoever that is indirect, consequential, or of a special nature,
arising directly or indirectly out of this Agreement, even if it had been advised of the possibility of such damages, and even if such loss, damage, cost or expense was reasonably foreseeable by it.
Exception: Clauses 13.2 and 13.3 will not limit or exclude any liability where such liability cannot be so limited or excluded under the applicable law.
Termination by the Supplier: Without prejudice to any other right or remedy, the Supplier may immediately terminate this Agreement at any time by written notice if the Distributor:
- fails to make any payment due under this Agreement by the due date and fails to remedy such non-payment within 20 Business Days of receiving notice requiring the payment to be made; or
- challenges any of the Suppliers rights or title in or to the Trade Marks or any Intellectual Property Rights in and to the Products.
Termination by either party: Without prejudice to any other right or remedy it may have, either party may immediately terminate this Agreement at any time by written notice if:
- the other party is in material breach of this Agreement and, in the case of a material breach capable of remedy within 20 Business Days, the material breach is not remedied within 20 Business Days of the other party receiving notice specifying the material breach and requiring its remedy;
- the other party ceases or threatens to cease to carry on all or substantially all of its business or operations, is declared or becomes bankrupt or insolvent, is unable to pay its debts as they fall due, enters into a general assignment of its indebtedness or a scheme of arrangement or composition with its creditors, or takes or suffers any similar or analogous action in consequence of debt;
- a trustee, manager, administrator, administrative receiver, receiver, inspector under any legislation or similar officer is appointed in relation to the whole or any part of the other party’s assets or business; or
- an order is made or a resolution is passed for the winding-up or liquidation of the other party (other than voluntarily for the purpose of a solvent amalgamation or reconstruction).
Consequences of termination: On termination or expiry of this Agreement for any reason whatsoever:
- the Distributor will cease to market and distribute the Products, provided that, if the Agreemant has not been terminated by the Supplier under clause 14.1 or 14.2, the Distributor may for a period of three months following termination and with the Supplier’s written approval, sell to its customers in the Territory any Products in its possession;
- if required by the Supplier, the Distributor will remain bound under the terms of this Agreement to complete payment for and accept pickup of Products that have been ordered by it under this Agreement but not yet picked up as at the date of termination;
- the Distributor will immediately pay all amounts owing to the Supplier under this Agreement;
- the Distributor will, upon receipt of a written request from the Supplier, return or destroy (at the Supplier’s option), all Confidential Information in its possession or under its control. Upon the return or destruction (as the case may be) of all such Confidential Information, the Distributor will provide to the Supplier a certificate stating that the Confidential Information returned or destroyed comprises all the Confidential Information in the Distributor’s possession or under the Distributor’s control; and
- subject to this clause 14.3 and to clause 14.4, and except for any accrued rights, neither party will be under any further obligation to the other party.
Survival of provisions: Upon termination or expiry of this Agreement for any reason, the provisions of clauses 9.1(o), 9.3, 10.3 to 10.5, 11.2(f), 11.3, 11.4, 12, 14.3, 14.4, 16 and any other clauses intended to survive termination, together with those other provisions of this Agreement that are incidental to, and required in order to give effect to those clauses, will remain in full force and effect.
Procedure: If a dispute arises under this Agreement, the parties will attempt to resolve the dispute using the dispute resolution process set out below.
Informal resolution: Either party can initiate the dispute resolution process by giving written notice of the dispute to the other party (Dispute Notice). Upon the other party receiving the Dispute Notice, the parties will work together in good faith to resolve the dispute. Pending resolution of the dispute each party will continue to perform its obligations under this Agreement.
- If the parties cannot resolve the dispute by negotiation within ten Business Days following the date of delivery of the Dispute Notice, then either party may, by written notice to the other party (Mediation Notice), require the dispute to be submitted to mediation in New Zealand in accordance with the provisions of the then current Resolution Institute Mediation Rules (Mediation).
- The Mediation will be conducted by a mediator and at a fee agreed by the parties. If the parties fail to agree such matters within five Business Days following the date of delivery of the Mediation Notice, the Resolution Institute will select the mediator and determine the mediator’s fee. The parties will share equally the cost of the mediator’s fee.
Arbitration: If the parties cannot resolve the dispute within 20 Business Days after commencement of the Mediation, the dispute will, if either party elects (by written notice to the other party), be determined by arbitration by one arbitrator under the Arbitration Act 1996.
Conduct of Arbitration: For the purposes of the First Schedule to the Arbitration Act 1996:
- the arbitrator will be:
- the person agreed on by the parties in writing within five Business Days after the date of receipt of any notice given under clause 15.4; or
- failing agreement under paragraph (i) above, the person appointed as arbitrator, at either party's request, by the Resolution Institute;
- the place of arbitration will be Christchurch, New Zealand;
- the arbitral proceedings will begin 20 Business Days after the date either party submitted the dispute to arbitration under clause 15.4;
- the language used in the arbitral proceedings will be English; and
- the law applicable to the substance of the dispute will be New Zealand law.
Interlocutory relief: Nothing in this clause 15 will prevent either party, at any time, from seeking any urgent interlocutory relief from a court of competent jurisdiction in relation to any matter that arises under this Agreement.
Force majeure: Neither party will be liable to the other for any breach or failure to perform any of its obligations under this Agreement where such breach or failure is caused by war, civil commotion, hostility, act of terrorism, strike, lockout, other industrial act, pandemic or epidemic, weather phenomena or other act of God, governmental regulation or direction, or any other cause beyond that party’s reasonable control whether similar to any of the foregoing or not.
Variations: No amendment, variation or modification to this Agreement will be effective unless it is in writing and signed by duly authorised representatives of both parties.
- The Distributor may not sell, assign, transfer, novate, sub-license, sub-contract, charge, pledge or otherwise encumber this Agreement, or any of its rights or obligations under this Agreement, without first obtaining the written consent of the Supplier.
- Any Change of Control by the Distributor is deemed to be an assignment by the Distributor for the purposes of clause 16.3(a).
- The Supplier may assign, transfer or novate this Agreements, or its rights and/or obligations under this Agreement, without the further consent of the Distributor and the Distributor will do all things, including signing all documents, necessary to give effect to any such assignment, transfer or novation.
No waiver: No delay, neglect or forbearance by a party in enforcing against the other any provision of this Agreement will be a waiver, or in any way prejudice any right, of that party.
Invalid clauses: If any provision or part of this Agreement is held to be invalid, unenforceable or illegal for any reason, this Agreement will be deemed to be amended by the addition or deletion of wording as appropriate to remove the invalid, unenforceable or illegal provision or part, but otherwise to retain the provision and the other provisions of this Agreement to the maximum extent permissible under applicable law.
Costs: Each party will bear its own legal and other costs and expenses incurred in connection with the preparation, negotiation and execution of this Agreement.
- The parties will perform their respective obligations under this Agreement as independent contractors to each other.
- Nothing in this Agreement will create, constitute or evidence any partnership, joint venture, agency, trust or employer/employee relationship between the parties, and neither party may make or allow to be made, any representation that any such relationship exists between the parties.
- Neither party will have the authority to act for, or incur any obligation on behalf of, the other party, except as expressly provided for in this Agreement.
Entire agreement: This Agreement contains the whole of the contract and understanding between the parties relating to the matters covered by it and supersedes all prior representations, agreements, statements and understandings between the parties relating to those matters, whether verbal or in writing.
Announcements: Neither party may make any press or other public announcement concerning any aspect of this Agreement without the prior written consent of the other party.
Further action: Each party agrees to execute, acknowledge and deliver such further instruments, make all applications and do all further similar acts, as may be necessary or appropriate to carry out the purposes and intent of this Agreement.
Counterparts: This Agreement may be signed in any number of counterparts (including facsimile or electronically scanned copies) all of which, when taken together, will constitute one and the same document.
Remedies cumulative: The rights of the parties under this Agreement are cumulative and not exclusive of any rights provided by law.
- Each notice or other communication to be given under this Agreement (Notice) must be in writing and must be:
- in the English language and clearly legible;
- sent by pre-paid post, email or personal delivery to the addressee at the postal address, email address or physical address specified in clause 16.13(b); and
- marked for the attention of the person or office holder (if any) specified in clause 16.13(b).
- The initial postal address, email address and physical address, and relevant person or office holder, of each party are, unless otherwise notified by the relevant party to the other party, as set out below:
Attention: Alexis Fletcher-Reid
Distributor: As per details completed in web form
- No Notice will be effective until received. A Notice is, however, deemed to be received:
- in the case of posting, on the fifth Business Day following the date of posting;
- at the time the email reaches the communications system of the recipient, as long as the sender has not received any unsent/error message; and
- in the case of personal delivery, when received,
but any Notice personally delivered or received by email either after 5.00 pm on a Business Day, or on any day that is not a Business Day, will be deemed to have been received on the next Business Day.
- Despite clauses 16.13(a) and (c)(i), if the Notice is posted from a country other than the country of the addressee, the method of posting must be pre-paid airmail, and the Notice will be deemed to be received on the tenth Business Day following the date of posting.
Governing law: New Zealand law governs the formation, validity, construction and performance of this Agreement. This Agreement is subject to the non-exclusive jurisdiction of the New Zealand courts to which the parties hereby submit.