AGREEMENT FOR SUPPLY OF PRODUCTS
AGREEMENT FOR SUPPLY OF PRODUCTS
This Agreement governs the supply of Products by Fluidra to the Customer, and the purchase and re- supply of Products by the Customer. The Agreement comprises:
(a) these Standard Terms and Conditions;
(b) the Internet Guidelines;
(c) the Customer Application Form; and
(d) any schedule, annexure or appendix attached to the Standard Terms and
Conditions or agreed by the parties as forming part of this Agreement, (the Agreement).
STANDARD TERMS AND CONDITIONS OF SUPPLY
1. Definitions and Interpretation
These Standard Terms and Conditions form part of and are incorporated into the Agreement.
1.1 Definitions
In this Agreement:
Associated Entity means: (a) an associated entity within the meaning of section 50AAA of the Corporations Act 2001 (Cth);
(b) 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
(c) any corporation or other form of business organisation in which any of the above
entities, directly or indirectly has at least 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.
Business Day means a weekday on which banks are open in New South Wales, Australia.
Commencement Date means the date on which the Customer accepts the terms of the Agreement or the date on which the Customer first places a Purchase Order, whichever occurs first.
Confidential Information means all information of whatever description and in
whatever form (whether written or oral), which is disclosed by a Party (Disclosing Party) to the other party (Recipient) or otherwise obtained directly or indirectly by the Recipient from or on behalf of the Disclosing Party that:
(a) by its nature is confidential;
(b) the Recipient knows or ought reasonably to know is confidential, and includes in the
case of Fluidra, information concerning the design and production of the Products,
including know-how, materials, specifications, technical information, data, samples, artwork or drawings;
any other information designated as confidential by the Disclosing Party.
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.
Customer means the customer as named in the Customer Application Form.
Customer Application Form means the customer application form completed by the Customer and provided to Fluidra.
Customer Website means a website and / or domain name owned, controlled or operated by the Customer or which otherwise displays the Customer's branding, and excludes a third-party E- Commerce Platform.
Delivery Location(s) means the Customer's delivery location(s) set out in the Customer
Application Form or as otherwise agreed in writing by the parties.
Distributor means a Customer who is a distributor or wholesaler of the Products.
E-Commerce Platform means eBay, Gumtree, Amazon or any other similar online e-commerce platform.
End User means a person who purchases, or who expresses an interest in purchasing, the Products for the purposes of personal, domestic or household use, and who has not purchased the Products for the purposes of resale/resupply.
Fluidra means Fluidra Group Australia Pty Ltd ACN 002 641 965 (trading as Fluidra) and any of its Associated Entities and Related Entities.
Fluidra Brand Guidelines means any Fluidra brand or identity guidelines for Fluidra brands
(including without limitation Zodiac and Astral) which are provided to the Customer by Fluidra.
Fluidra Customer Portal means the online web- enabled portal created by Fluidra for access by Customers using a username and password.
Fluidra IP has the meaning given to this term in clause 11.1.
Fluidra Marketing Materials means any marketing and promotional material in whichever
form (including any illustrations, images, artwork, logos or designs) which is provided by Fluidra to the Customer to assist in promoting the Products (including brochures and point of sale marketing material)
Fluidra Trade Marks means any of the trademarks and logotypes (registered or
unregistered) owned, licenced or used by Fluidra.
Force Majeure Event has the meaning given to it in clause 23.1.
Internet means the worldwide web of linked computers, including any private or proprietary network that connects to the worldwide network through bridges, gateways or other device.
Internet Platform means any Internet website, domain name, interface, platform or marketplace by which goods or services are advertised, offered for sale and / or sold on or via the Internet, including (but not limited to) a Customer Website, an E-Commerce Platform, or a Non E-Commerce Platform.
Intellectual Property means all copyright, patents and all other rights throughout the world in relation to inventions, registered and unregistered trademarks (including service marks) and registered or unregistered designs, logos, graphics, images, moral rights, specifications, know-how, technical information, data, drawings, photos, images, and includes all original works of authorship fixed in any tangible medium of expression.
Internet Guidelines means the Fluidra internet guidelines which form part of the Agreement (including any schedule to those guidelines), as varied from time to time.
Loss means any and all loss, liability, damage, fee, cost (including legal costs), expense, suit, claim, demand, judgement and prosecution.
Minimum Order Value means the minimum combined value of Products (per order) required to receive free delivery of the Products from Fluidra, which is $1,000 ex GST unless varied under clause 6.3 or otherwise agreed between the parties in writing.
Non-Excludable Obligations has the meaning given to the term in clause 17.1.
Non E-Commerce Platform means any Internet website, domain name, interface, platform or marketplace that does not have e-commerce sale capabilities, including Meta (formerly Facebook), Instagram, Google Shopping and other like platforms or marketplaces.
Parties means the parties to this Agreement, namely Fluidra and the Customer, and each is referred to as a Party.
Personal Information has the meaning given in applicable Privacy Law from time to time, and includes any information or opinion in any form, whether recorded or not, about an identified individual or an individual who is reasonably identifiable.
Pool Builder means a corporation whose primary business is the business of building,
installing, repairing and/or servicing swimming pools and other related construction.
PPS Act means the Personal Property Securities Act 2009 (Cth).
Prices mean the prices payable by the Customer to Fluidra for the Products in accordance with clause 4.
Privacy Law means the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth), any codes or guidelines approved under those Acts, and all other laws that apply to the privacy, protection and Processing of any Personal Information from time to time.
Process means any act or practice in connection with, or processing applied to, any Personal Information, and includes the collection, use, handling, disclosure or storage of, or granting of access rights to, Personal Information.
Products means the Fluidra products that Fluidra makes available for purchase, and re-supply, by the Customer under the Agreement.
Purchase Order has the meaning given to it in clause 6.1.
Related Entity has the meaning given to it in the Corporations Act 2001 (Cth).
Standard Terms and Conditions means these Fluidra Standard Terms and Conditions of Supply.
Security Interest means:
(a) a security interest under the PPSA;
(b) any other mortgage, pledge, lien or charge;
and
(c) 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.
1.2 Interpretation
In this Agreement, unless the context otherwise
requires:
(a) headings and notes in square brackets are for convenience only and do not affect the
interpretation of this Agreement, except for the purpose of rectifying any erroneous
cross-reference;
(b) words importing the singular include the plural and vice versa;
(c) words importing a gender include all genders;
(d) a reference to a person includes a corporation, business or organisation;
(e) a reference to a paragraph, clause, or schedule is a reference to a paragraph, clause, or schedule to this Agreement;
(f) references to any document or agreement include references to such document or
agreement as amended, novated, supplemented, varied or replaced from time to time;
(g) all monetary amounts referred to in this Agreement are in AUD or Australian currency
unless expressly stated otherwise;
(h) a reference to a party to this Agreement includes that party’s legal successors
(including executors and administrators) and permitted assigns; and
(i) a reference to a person, means a reference to a person or company.
2 Supply of Products by Fluidra
2.1 This Agreement is non-exclusive. Fluidra may supply the Products to any other party, and the Customer may at any time purchase any products, including products identical or
similar to the Products, from any third party.
2.2 The Customer is under no obligation, whether under or in connection with this Agreement or otherwise, to purchase any, or any minimum quantity of the Products.
2.3 Fluidra supplies the Products to the Customer on condition that the Customer must not re- supply the Products to any person whom Fluidra has specified in writing is a party to whom the Products may not be re-supplied because Fluidra considers (acting
reasonably) that such a person:
(a) is or may be selling counterfeit products or products which infringe or may infringe
any Fluidra IP;
(b) lacks suitable in-store service, training, education and support, and in-person after-sales servicing and support, to enable customers to make informed decisions relating to the Products (including their suitability) and receive adequate post-sales support; and / or
(c) lacks capabilities to effectively and safely install the Products;
(d) is located outside Australia; and/or
(e) is likely to sell the Products (directly or
indirectly) outside Australia, or to a person outside Australia.
2.4 Where the Customer is not a Distributor, Fluidra supplies the Products to the Customer on condition that the Customer must not re- supply the Products to any person other than an End User.
2.5 Where the Customer is a Distributor, Fluidra supplies the Products to the Customer on condition that the Customer does not re- supply the Products to any person other than:
(a) Pool Builders;
(b) Retailers; or
(c) mobile service businesses, provided such persons offer suitable in-store service, training, education and support, and in-person after-sales servicing and support, to enable End Users to make informed decisions relating to the Products (including their suitability) and receive adequate post- sales support.
2.6 Fluidra supplies the Products to the Customer on condition that the Customer must comply with the Internet Guidelines, unless otherwise agreed in writing with Fluidra.
2.7 The Customer must re-supply the Products in their packaging as supplied by Fluidra.
3 Duration of this Agreement
3.1 This Agreement shall come into operation from the Commencement Date and remains in force and binding on the Parties until the Agreement is terminated under clause 20.
4 Prices
4.1 Subject to clause 4.2, the Prices of the Products will be the prices agreed by the Parties at the time of entering into this Agreement, based on the list price less any
discounts, credits, rebates or other reduction offered by Fluidra to the Customer.
4.2 The Parties acknowledge that Fluidra may vary the Prices of any one or more of the Products to reflect material changes in the cost of the Products, manufacture, inflation, freight rates or other reasonable basis, by giving the Customer at least thirty (30) days' written notice (notice period). If the Customer does not agree to the varied Prices of any Product, the Customer may terminate the Agreement with effect from the end of the notice period.
4.3 A change in the Prices for the relevant Products will be effective for all Purchase Orders received by Fluidra after the notice period and will not be retrospective.
5 Customer free to determine re-sale price for Products
5.1 The Customer is free to determine the price at which the Customer re-supplies the Products, and this is solely a matter for the Customer.
5.2 Any reference by Fluidra to a recommended retail price or suggested retail price for the Products is a recommendation only and there is no obligation on the Customer to comply with that recommendation.
6 Orders
6.1 The Customer must place purchase orders with Fluidra for the Products to be supplied by Fluidra to the Customer, either via the Fluidra Customer Portal or otherwise in writing
(Purchase Order). The Purchase Order must detail or otherwise request:
(a) the specific Products sought by the Customer;
(b) the quantity of the Products;
(c) if the Customer requests to collect the Products, the proposed collection date;
and
(d) if the Customer requests that Fluidra deliver the Products, the Delivery Location and desired delivery date.
6.2 Fluidra will use reasonable endeavors to accommodate any collection or delivery date
requested by the Customer but may not be able to meet such dates where these dates
are unreasonable, or for reasons outside Fluidra’s reasonable control. Fluidra is not
responsible for not meeting a requested collection or delivery date. The dates that
Fluidra expects it can make available the Products for collection or on which they will
be delivered will be set out in the Confirmed Order. If the Customer does not wish to
proceed based on the dates set out in the Confirmed Order, it may cancel the order by
providing at least seven (7) days’ notice to Fluidra.
6.3 The Customer must use reasonable endeavors to ensure each Purchase Order placed meets the Minimum Order Value. Unless otherwise agreed by the parties in writing, if the Customer places a Purchase Order which is less than the Minimum Order Value, Fluidra will charge the Customer $50.00 or such other reasonable additional freight and handling costs incurred by Fluidra because the order does not meet the Minimum Order Value. Fluidra may vary the Minimum Order Value and/or the freight/delivery charge by providing at least thirty (30) days written notice. The Minimum Order Value does not apply to commercial products and SRS branded products, and freight and handling cost will be incurred on these products.
6.4 Upon receipt of a Purchase Order, Fluidra must promptly and within fourteen (14) days:
(a) notify the Customer in writing that Fluidra accepts the Purchase Order (which may
be via the Fluidra Customer Portal and/or via email) and provide details of:
i. any Products to be supplied that are not currently in stock and details of their expected
availability;
ii. the applicable Prices of the Products to be supplied and total price payable for the order (based on the prevailing Prices at the time of the Purchase Order);
iii. if the Customer is collecting the Products, the date and location
on which Fluidra expects it can make the Products available for the collection (the Collection Date); and
iv. if Fluidra is delivering the Products, the expected delivery date of the Products (the
Delivery Date), (the Confirmed Order); or
(b) notify the Customer that Fluidra (acting reasonably) refuses to accept a Purchase Order or any part of it because
i. the Customer has failed to make a payment by the relevant date and Fluidra has
suspended their account in accordance with this Agreement; or
ii. the Customer's account is closed at the time Fluidra receives the Purchase Order.
6.5 If Fluidra fails to notify the Customer within fourteen (14) days of its receipt of a Purchase Order that it accepts or refuses to accept the order, Fluidra will be deemed to have accepted the Purchase Order.
6.6 Once Fluidra has notified the Customer of a Confirmed Order, subject to clause 6.2, any further amendments or variations to the Confirmed Order must be negotiated and
agreed by the Parties before the Parties comply with their respective obligations under
the Confirmed Order.
6.7 Fluidra must use its reasonable endeavors to deliver the Products to the Customer on the Delivery Date, or make the Products available for collection by the Collection Date (as
applicable).The Customer acknowledges and agrees that any Delivery Date or Collection
Date provided to the Customer by Fluidra is an estimate only.
6.8 Fluidra may pause fulfillment of a Confirmed Order (or part of an order) if the Customer fails to comply with its payment obligations under this Agreement in relation to a previous order. Fluidra will resume fulfilment of the Confirmed Order once the Customer fulfils payment in relation to the previous order, or enters into a payment plan approved by Fluidra, in relation to the previous order.
6.9 If Fluidra becomes aware that, after a Confirmed Order is issued:
(a) the Product(s) have been put on quality hold so can no longer be supplied; or
(b) there is a material unforeseen delay which means the Product(s) will not be available for supply for an extended period, Fluidra must promptly withdraw the Confirmed Order by providing the Customer written notice as soon as practicable after becoming aware of the relevant issue, and refund the Customer any amounts paid by the Customer in respect of the Confirmed Order promptly and within seven (7) days of withdrawing the order.
6.10 The Customer must make payment for any Products delivered or collected under a
Confirmed Order in accordance with this Agreement.
Delivery
7.1 Subject to clause 6.2 and 6.7, Fluidra must deliver the Products the subject of a Confirmed Order to the Customer at the Delivery Location(s) on or by the Delivery Date.
7.2 If the Confirmed Order provides for the Customer to collect the Products, the Customer must collect the Products from Fluidra at the location specified in the Confirmed Order on the Collection Date or such other date as agreed by the parties.
7.3 The Customer will be responsible for all costs associated with the delivery of the Products, including freight, insurance, and other charges arising from the point of dispatch of the Products to the Delivery Location(s). Freight costs are provided in the Fluidra Customer Portal or via email.
7.4 Fluidra must ensure that all Products delivered by Fluidra to the Customer or made available for collection by the Customer, are accompanied by:
(a) a delivery/supply advice slip describing the Products and the quantities of Products being delivered (or supplied for collection, as applicable); and
(b) any relevant Safety Data Sheets for all chemical and/or hazardous Products being delivered (or supplied for collection, as applicable).
7.5 If Fluidra delivers the Products in instalments, each instalment will be treated as a separate delivery with the amount payable by the Customer being apportioned in accordance with the proportion of the Products delivered.
7.6 Subject to and without limiting any Non-Excludable Obligations, if the Customer does not accept a delivery from Fluidra or delays a planned delivery of the Products to the Delivery Location(s), the Customer is liable to Fluidra for any reasonable costs incurred by Fluidra (including any additional transport or storage costs) from the failure or delay, except to the extent that the failure or delay was caused or contributed to by Fluidra's negligence or breach of this Agreement.
8 Title and Risk of Loss
8.1 All risk of loss and damage to the Products will pass to the Customer upon collection of the Products by the Customer, or delivery of the Products to the Customer (as applicable).
8.2 Title of the Products will pass to the Customer upon full payment for the relevant Products being received in cleared funds by Fluidra.
8.3 Until full payment is received by Fluidra: (a) legal title to the Products will remain with
Fluidra; and
(b) the Customer will hold the Products as bailee for Fluidra.
8.4 If the Customer returns Products to Fluidra, risk
in the Products passes to Fluidra upon collection of the Products by Fluidra or delivery of
the Products to Fluidra’s nominated location.
8.5 In the event that the Customer fails to comply with its payment obligations under clause 9.3, Fluidra may, upon reasonable notice (in writing), repossess any Products that remain unpaid by the Customer.
8.6 The Customer authorises Fluidra or its agents to enter any premises of the Customer to take possession of the Products in accordance with clause 8.5. Where this occurs, Fluidra (or its agents, as applicable) must exercise reasonable care while on such premises and follow any reasonable safety directions of the Customer with respect to the premises.
9 Payment
9.1 The Customer must pay the Prices for the Products supplied by Fluidra to the Customer in accordance with this clause 9.
9.2 Fluidra must issue a valid tax invoice in connection with a Confirmed Order (Invoice)
which must set out the Products supplied under the relevant order and the amount payable by the Customer.
9.3 Subject to clause 9.4 and 9.5, the Customer must make payment of the Invoice in full within thirty (30) days of the end of the month in which the Invoice is issued to the Customer, unless otherwise agreed with Fluidra (Due Date).
9.4 Fluidra may offer the Customer credit terms for payment of the Products as agreed from time to time by the parties in writing. Where this is the case, the Customer must make payment of the Invoice within any agreed period under those credit terms.
9.5 On request by the Customer, Fluidra may extend the Due Date for an Invoice by giving the Customer written notice.
9.6 If the Customer does not make payment of the Invoice by the Due Date (including any
extended Due Date) then:
(a) Fluidra may charge interest on the overdue amount at the prevailing rate charged by Fluidra’s preferred banking institution on overdraft accounts for the period from the Due Date, until the date of payment of the relevant Invoice (or unpaid part of the Invoice) in full; or
(b) Fluidra may suspend the supply of further Products to the Customer after providing
at least seven (7) days' written notice that Fluidra proposes to suspend the
Customer's account.
10 GST
10.1 For the purposes of this Agreement:
(a) Adjustment Event, Adjustment Note and Tax Invoice have the same meaning as in
the GST Law;
(b) GST means a goods and services tax or similar tax imposed under GST Law; and
(c) GST Law means the A New Tax System
(Goods and Services Tax) Act 1999.
10.2 If GST has any application to any supply made under or in connection with this Purchase Order, the party making the supply may in addition to any amount or consideration expressed as payable elsewhere in the Purchase Order, recover from the recipient of the supply (Recipient) an additional amount on account of GST, such amount to be calculated by multiplying the amount or consideration payable by the Recipient for the relevant supply by the prevailing GST rate.
10.3 Any additional amount on account of GST recoverable from the Recipient shall be
calculated without any deduction or set-off of any amount and is payable by the Recipient at the same time and in the same manner as paying the amount or consideration for the relevant supply under this Purchase Order.
10.4 The Supplier must issue to the Recipient a Tax Invoice, and must do anything else which may be reasonably required to enable or assist the Recipient to claim or verify any input tax credit, set off, rebate or refund in relation to any GST payable under this Purchase Order or in respect of any supply under this Purchase Order.
10.5 Where an Adjustment Event in relation to a supply under this Agreement has occurred, the Customer must issue an Adjustment Note to the Recipient no later than ten (10) Business Days after that Adjustment Event.
11 Intellectual Property
11.1 Ownership (a) The Customer acknowledges that Fluidra owns all right, title and interest in
i. all Intellectual Property in connection with the supply of the Products by Fluidra,
including in any Fluidra Marketing Material and any Fluidra Brand Guidelines;
ii. the Fluidra Trade Marks (the Fluidra IP).
(b) The Customer acknowledges that the Fluidra IP remains the sole property of Fluidra.
(c) Fluidra grants the Customer a non- exclusive, non-transferable, royalty-free licence during the term of this Agreement to use the Fluidra IP solely to the extent necessary for re-supplying the Products (including advertising, promotion and marketing the Products)
in accordance with this Agreement (including the Internet Guidelines). (d) The Customer must:
i. only use the Fluidra IP in accordance with the limited licence granted under clause (b) above;
ii. comply with any reasonable directions, specifications and instructions provided by Fluidra in connection with the use of the Fluidra IP;
iii. not use the Fluidra IP in relation to or in connection with any other
product, other than the Products; and
iv. not modify, remove or change any of the Fluidra IP (including altering,
removing or changing any Fluidra IP on any labelling or packaging of the
Products), except as agreed with Fluidra. (e) Without limiting clause 11.1, the Customer must, in relation to any re- supply of the Products (whether by advertising, offering for sale or sale) to End Users, including in any advertising on any Internet Platform:
i. use the correct Fluidra Trade Mark or Fluidra brand name (i.e. Zodiac, AstralPool etc.) in conjunction with each Product;
ii. not use any other trade mark or brand name in conjunction with any Product (whether alone or together with any Fluidra Trade Mark or brand name, and whether or not correctly spelt), including using such other trade mark or brand name for search engine optimisation purposes (for example, a Customer must not refer to any Zodiac pool cleaner as a 'Baracuda Zodiac' Cleaner or as a 'Barracuda Zodiac' cleaner);
iii. not change, modify or alter the Fluidra IP except on terms specified Fluidra when providing the Fluidra IP or otherwise without the prior written approval of Fluidra, which may be withheld by Fluidra at its absolute discretion;
(f) The Customer must not register or otherwise use a domain name or digital brand of any sort which:
• is similar to or deceptively similar to the Fluidra Trade Marks;
• infringes any of the Fluidra Trade Marks or any other Fluidra IP;
• is likely to cause confusion in the marketplace or otherwise is registered in bad faith towards Fluidra; or
• is likely to mislead or deceive End Users or any other party to believe that the domain name or brand is associated, affiliated or connected to Fluidra.
11.2 Infringement
(a) Fluidra makes no representation or warranty of any kind, expressed or implied, that the Fluidra IP, the Products supplied or the use of such Products will not or do not infringe any patent, trademark or any other party’s intellectual property.
(b) The Customer must notify Fluidra as soon as practicable, in writing, of any:
i. potential or actual infringement of the Fluidra IP, which may come to its attention; or
ii. third party intellectual property which is or may be infringed by the Fluidra IP or the marketing, promotion, advertising or sale of the Products which may come to its attention or if it receives a notice alleging such infringement, (collectively, Infringement).
11.3 Assistance
(a) Fluidra has the sole right to take action to prosecute or defend any Infringement relating to the Fluidra IP.
(b) Upon receiving any request from Fluidra, the Customer must, at Fluidra’s reasonable cost:
i. promptly disclose to Fluidra all information in the Customer’s control or possession reasonably required by Fluidra to prosecute or defend an Infringement; and
ii. reasonably consult, co-operate and assist Fluidra in connection with any action taken by Fluidra in connection with any Infringement.
(c) Fluidra will reimburse the Customer for any reasonable costs incurred by the
Customer in relation to an Infringement, including any court fees and legal fees
reasonably incurred by the Customer, except to the extent such Infringement is
caused or contributed to by an act or omission of the Customer.
(d) The Customer represents and warrants that it must ensure that any information
disclosed to Fluidra under clause 11.3(b) is a full and accurate disclosure and the Customer must not withhold any such information within its control or possession.
12 Use of Fluidra Marketing Materials
12.1 Fluidra may provide the Customer with Fluidra Marketing Materials which the Customer may use in re-supplying the Products (including advertising, promotion and marketing the Products) in accordance with Fluidra’s reasonable directions or instructions, and otherwise in accordance with this Agreement. The Customer must not change, modify, or copy the Fluidra Marketing Materials (including to tailor or customise the material to the Customer) without the prior written consent of Fluidra (not to be unreasonably withheld or delayed).
13 Customer’s Obligations
13.1 The Customer must, in:
re-supplying the Products (including advertising, promoting and marketing the
Products):
(a) act in accordance with Fluidra’s reasonable instructions in connection with communicating safety or other important information relating to the use, operation, installation, servicing or maintenance of Products;
(b) ensure that the Customer and its employees have the requisite knowledge, training and skill to advise on the correct and safe application, installation, use and operation of the Products, including in relation to any after-sales support and servicing;
(c) not engage in any false, deceptive, misleading conduct, or illegal or unethical practices;
(d) without limiting the Non-Excludable Obligations, make no additional representations concerning the Products' capabilities, functionality or performance
other than those which are consistent with any Fluidra Marketing Material or documentation supplied by Fluidra in connection with the Products or make a
representation or convey to any potential User that a Product is fit for a particular
purpose when this is not the case;
(e) maintain and re-supply the Products supplied by Fluidra in the condition that they are received by the Customer;
(f) not modify or alter the Products before
sale;
(g) participate in Fluidra promotional and marketing initiatives (such as promoting
new Products being launched and displaying promotional material) from time to time, at Fluidra’s reasonable request; and
(h) ensure that its employees complete Product training provided by Fluidra, as reasonably requested by Fluidra from time
to time;
(i) comply with all applicable laws and regulations, standards and industry codes when performing its obligations under this
Agreement;
(j) ensure it has and maintains:
i. the necessary skills, experience and qualifications to perform its obligations under this Agreement;
ii. any necessary licenses, approvals, permits and consents to operate its business and re-
supply the Products.
14 Privacy
14.1 Each of the Customer and Fluidra must comply with the Privacy Laws, regardless of
whether the parties are required by law to comply with the Privacy Laws.
14.2 The Customer must:
(a) only use, disclose or otherwise Process any Personal Information of an End User
to the extent necessary to respond to an End User 's enquiry or supply Products to
an End User (as applicable), or otherwise as permitted by the Privacy Laws;
(b) only send direct marketing communications to End Users:
i. that is directly related to an End User's enquiry or purchase of the Products; and
ii. as permitted by the Privacy Laws.
14.3 The Customer must take all reasonable steps, including appropriate technical and
organisational measures, to protect Personal Information, including against misuse, loss or interference, from unauthorised access, modification or disclosure, and from
accidental or unlawful destruction or alteration.
14.4 Upon the later of:
(a) the resolution of an End User's enquiry;
or
(b) completion of the sale of a Product to an End User, the Customer must promptly, permanently de-identify or destroy all Personal Information obtained in connection with the End User, unless required or authorised by law to retain a copy of the Personal Information.
15 Personal Property and Securities
15.1 Unless otherwise defined in this Agreement, the terms and expressions in this clause 14 have the meaning given to them in the PPSA.
15.2 The Customer acknowledges and agrees that the Customer has granted to Fluidra a
Security Interest in the Products, that any purchase by the Customer on credit terms
from Fluidra, or any retention of title supply pursuant to this Agreement, constitutes a
purchase money security interest as defined in the PPSA.
15.3 In consideration for Fluidra providing the Products to the Customer under this
Agreement and other valuable consideration, the Customer hereby grants to Fluidra:
(a) 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 and including but not limited to:
i. all goods and Productspreviously supplied by Fluidra to the Customer, if any;
ii. all future Products supplied by Fluidra to the Customer;
iii. all proceeds of sale of the Products; and
iv. any accounts containing the proceeds from the Products supplied by Fluidra to the
Customer.
(b) A fixed charge over all present and after-acquired property of the Customer, including but not limited to the Products and any other property to which the PPSA does not apply.
15.4 Fluidra may register the Security Interests granted in this Agreement and will provide a copy to the Customer upon request of any Financing Statement, Financing Change
Statement or Verification Statement registered or received by Fluidra in respect of the Security Interests created under this Agreement.
15.5 The Customer agrees that the Products supplied by Fluidra to the Customer secure
the payment of those Products and of any other goods supplied by Fluidra to the
Customer. Until the Customer has made full payment of the Products supplied by Fluidra
to the Customer, the Customer must not without the prior written consent of Fluidra,
grant any other Security Interest in respect of the Products or sale proceeds of the Products to any third party.
15.6 At Fluidra’s cost, the Customer must do all things reasonably required by Fluidra to
register and perfect that interest under the terms of the PPSA or otherwise.
15.7 To the extent the law permits:
(a) For the purposes of Section 115(1) and
115 (7) of the PPSA:
i. Fluidra need not comply with sections 95, 118, 121(4), 125, 130, 132 (3) (d), 132(4) or 135; and
ii. Sections 142 and 143 are
excluded.
(b) For the purposes of section 115(7) of the PPSA, Fluidra need not comply with
section 132 and 137(3).
16 General Warranties
16.1 Each Party warrants to the other Party that:
(a) it has the full power and authority to execute, deliver and perform its obligations under this Agreement;
(b) this Agreement constitutes a legal, valid and binding agreement and is enforceable in accordance with these Standard Terms and Conditions; and
(c) it has read, understood and freely entered into this Agreement; and
(d) there are no claims, actions, proceedings or investigations pending or threatened or
of which the Party is aware, which may have a material effect on the subject matter of this Agreement.
17 Non-Excludable Obligations
17.1 Nothing contained in this Agreement excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law (or any other law), the exclusion, restriction or modification of which would contravene that law or cause any term of this Agreement to be void (the Non- Excludable Obligations).
17.2 To the extent permitted by law and subject to the Non-Excludable Obligations, Fluidra will not be liable under this Agreement to the Customer for any Products that are destroyed, damaged or rendered defective by:
(a) a third party’s careless handling, improper packaging or shipping of the Products;
(b) the misapplication, misuse or abuse or failure to operate and/or install the Products as specified in the Products owner/user’s manual or otherwise;
(c) exposure of the Products to inappropriate environments or conditions;
(d) improper, unsafe or unauthorised modifications or alterations of the Products;
(e) a failure to properly maintain the Products as specified in the owners/user’s manual
or otherwise; or
(f) accidental damage, fire or other circumstances outside the reasonable control of Fluidra, except to the extent caused or contributed to by Fluidra's negligence or breach of this Agreement.
17.3 Each of Fluidra and the Customer must comply with Non-Excludable Obligations,
including in relation to any customer complaints regarding the Products.
17.4 Subject to and without limiting any Non- Excludable Obligations, where an End User makes a query or complaint to the Customer in connection with the Products, the Customer must make reasonable efforts to promptly resolve such queries or complaints and Fluidra must use all reasonable efforts to provide technical advice, information and
assistance to the Customer to assist in resolving the query or complaint.
17.5 The Customer must promptly notify Fluidra of any complaints or reports the Customer receives relating to the Products which involve any actual or potential safety issue, injury or death.
18 Product Safety Recalls
18.1 Upon request by Fluidra (acting reasonably), and at Fluidra's cost, the Customer must
provide reasonable assistance to Fluidra in connection with Fluidra undertaking a product
safety recall of one or more of the Product(s) supplied to the Customer.
18.2 For the purposes of assisting Fluidra undertaking a product safety recall of the
Product(s), the Customer must use reasonable endeavours to:
(a) obtain and hold appropriate contact details of End Users to whom the Customer has re-sold the Product(s), for the purposes of these details being used in connection with a recall of the relevant Product;
(b) disclose such details to Fluidra, on Fluidra's reasonable request, for the purpose of enabling Fluidra to contact those End Users in connection with a recall of a relevant Product; and
(c) issue all necessary notices, and obtain all necessary consents, under applicable Privacy Laws to enable the Customer to comply with its obligations under this clause.
19 Inspection of delivered or collected Products
19.1 For the avoidance of doubt, nothing in this clause 19 is intended to (and does not) impact the ability of the Customer or any End User to return any Product to Fluidra at any time in accordance with the Non-Excludable Obligations, nor otherwise restrict or limit the rights and remedies of the Customer or any End User in respect of those obligations, or the exercise of such rights and remedies.
19.2 Upon collection or delivery of the Products (as applicable), the Customer must promptly inspect the Products.
19.3 Subject to and without limiting any Non- Excludable Obligations, the Customer must notify Fluidra, in writing, promptly and within fourteen (14) days of delivery or collection of the Products if there is any shortfall in or excess quantities of Products relating to the
Confirmed Order. Upon such notification, Fluidra must promptly and within fourteen (14)
days:
(a) collect (or arrange for the collection) of any excess Products;
(b) supply further quantities of the Products to rectify the shortfall.
19.4 Subject to and without limiting any Non- Excludable Obligations, the Customer must use best endeavours to notify Fluidra, in writing, as promptly as possible after delivery
or collection of the Products to the Customer if there are:
(a) any Products with visible and apparent damage or defects;
(b) any Products which do not match the description or the sample provided by Fluidra in relation to that Product, (the non-compliant Products), so that Fluidra can resolve the non- compliance as soon as practicable.
19.5 Subject to and without limiting any Non-Excludable Obligations, once the Customer notifies Fluidra under clause 19.4:
(a) Fluidra must promptly provide the Customer with a return authorisation number (RAN);
(b) upon receiving the RAN, the Customer must ensure the non-compliant Products are returned to Fluidra:
i. in their original packaging;
ii. accompanied by a copy of the relevant Invoice and Confirmed Order so that Fluidra is able to ascertain the Invoice and order to which the non-compliant Products relate; and
iii. in packaging which clearly displays the RAN;
(c) Fluidra must pay the Customer's reasonable costs of returning the non- compliant Products; and
(d) upon receiving the non-compliant Products from the Customer, Fluidra must rectify, replace or repair the non- compliant Product promptly and within fourteen (14) days. If Fluidra is unable to do so or if the non-compliance represents a major failure pursuant to the Non- Excludable Obligations, the Customer in its discretion is entitled to terminate the Agreement or seek any other remedy pursuant to its rights under the Non-
Excludable Obligations. .
19.6 If, upon inspection of the Products, the Customer identifies that it has ordered the
wrong Product(s) or wrongly ordered Product(s) in excess of its required quantities, and wishes to return these to Fluidra, it must notify Fluidra promptly and within fourteen (14) days arrange delivery or collection of the Products to the Customer if there are. Where
Fluidra elects to accept such Products ordered in error, it will provide the Customer
with a RAN. The Customer must promptly arrange the return of the Products in accordance with 19.5(b). As a result of needing to re-stock the returned Product(s) back into Fluidra's warehouse, Fluidra will charge the Customer a re-stocking fee of 15%
of the current Price of the Products ordered in error and returned.
20 Termination
20.1 Termination for convenience
Either Party may terminate this Agreement, for any reason for that Party's convenience,
by providing fourteen (14) days prior written notice to the other Party.
20.2 Termination for breach and other matters
Either Party may terminate this Agreement by written notice to the other Party if:
(a) the other Party breaches this Agreement and fails to remedy the breach to the first
Party's reasonable satisfaction within fourteen (14) days after receipt of a written notice requesting it to do so;
(b) the other Party is subject to any form of insolvency, bankruptcy, receivership, external administration or any similar such event; or
(c) the other Party is subject to a Force Majeure Event for a continuous period of more than three (3) months.
20.3 Effects of Termination
(a) Upon termination of the Agreement for breach, the Party not in breach (Non-
defaulting Party) may charge the other Party, and the other Party must indemnify the Non-defaulting Party against, all reasonable costs and expenses (including without limitation all legal costs and expenses), which the Non-defaulting Party has incurred as a direct result of the breach, including any fees or charges imposed by a third party on Non- defaulting Party and any other costs reasonably incurred by Non- defaulting Party in enforcing its rights under this Agreement.
(b) Upon termination of the Agreement for any reason whatsoever:
a. a Party will have no further obligations to the other Party except for any antecedent
breaches and as otherwise expressly stated in this Agreement;
b. all rights and licenses granted to the Customer under this Agreement will terminate immediately;
c. each Party must return to the other Party all Confidential Information or at the other Party's written request destroy the Confidential Information.
(c) Upon termination by Fluidra under clause 20.1 or 20.2, Fluidra will not be obligated to fulfil any outstanding Confirmed Orders or Purchase Orders existing at the date of termination of this Agreement.
(d) Upon termination of the Agreement for any reason whatsoever, the Customer:
a. must immediately pay Fluidra all outstanding amounts owed to Fluidra under this Agreement for Products supplied up to the date of termination;
b. is no longer able to purchase further Products from Fluidra;
c. must immediately cease the use of all Fluidra IP, including the display of any such IP, and if required by Fluidra (acting reasonably), destroy or delete any documents or materials that contain such IP;
d. must return to Fluidra all Fluidra Marketing Materials or at Fluidra’s written request (acting reasonably) destroy or delete the Marketing Materials.
21 Insurance
21.1 The Customer must effect and maintain, at its own expense during the term of this
Agreement, all necessary insurance policies for the performance of its obligations under this Agreement and in connection with the re- sale of the Products, including but not limited to public liability insurance cover for single event of at least $10,000,000.00 or such other insurance policies as may be reasonably required by Fluidra.
21.2 The Customer must ensure that its insurance policies are maintained with a reputable insurer.
21.3 The Customer must maintain the insurance policies for a period of six (6) years after the termination of this Agreement.
21.4 Upon request by Fluidra, the Customer must produce sufficient evidence of the Customer’s insurance to Fluidra within seven (7) days of such a request.
22 Indemnity
22.1 To the extent permitted by law and subject to clause 23.1, the Customer hereby indemnifies Fluidra and keeps Fluidra indemnified and held harmless from and against any Loss including, without limitation, loss or damage in the form of personal injury, illness or death to any person or damage to any property, arising from any:
(a) breach by the Customer of any of its obligations under this Agreement;
(b) unlawful activity or any wrongful or negligent action or omission or willful
misconduct of the Customer, its officers, employees and agents or contractors in connection with this Agreement;
(c) misrepresentations made by the Customer in re-supplying the Products (including in marketing, promoting or advertising the Products). The Customer's obligation to indemnify Fluidra under this clause 21 will be reduced proportionately to the extent that any breach of this Agreement by, or any act or omission of, Fluidra caused or contributed to the relevant Loss. Fluidra must take reasonable steps to mitigate its Loss.
23 Limitation of Liability
23.1 In no event and under no circumstances is either Party liable, obligated or responsible to the other Party or any third party, in contract, in tort or otherwise, for any incidental loss, loss of business or profits or any special, indirect, exemplary, punitive or consequential damages arising from or as a result of this Agreement in respect of relationship with the Customer or with respect to the Products.
24 Force Majeure
24.1 Neither Party will be deemed to be in breach of the Agreement, or otherwise be liable to the other, for any delay in the performance, or the non-performance of any of its
obligations under this Agreement, to the extent that the delay or non-performance is
outside the reasonable control of the Party including acts of God, strikes, fires, floods,
extreme drought, riot, war (declared or undeclared), embargoes, government actions or government restrictions (except where the action or restriction is due to the acts or omissions of the Party delayed or prevented from performing its obligations under this Agreement due to the action or restriction) (a Force Majeure Event), and the circumstances constituting such Force Majeure Event were notified to the other Party as soon as possible thereafter provided that the Party subject to such Force Majeure Event takes all reasonable steps to resolve the circumstances constituting force majeure as soon as possible.
25 Confidentiality
25.1 A Recipient must not:
(a) disclose any Confidential Information to a third party, without the prior written consent of the Disclosing Party;
(b) use of any Confidential Information of the Disclosing Party for any purpose other
than to comply with its obligations set out in this Agreement; and
(c) make or allow anyone else to make copies of any Confidential Information, unless for
the purposes set out in this Agreement.
25.2 Nothing in this Agreement will restrict the Recipient's ability to use or disclose any
information, where the Confidential Information:
(a) Is in the public domain or comes into the public domain, otherwise than as a result
of an unauthorised disclosure by the Recipient or its representatives;
(b) Is or becomes available to it from a third party lawfully in the possession thereof and who has the lawful power to disclose such information to it;
(c) The information is rightfully known prior to the date of disclosure to it hereunder; or
(d) It is required to do so under any laws or regulations.
25.3 The Recipient must:
(a) use its best endeavours to maintain the confidential nature of the Confidential
Information and will prevent unauthorised disclosure of the Confidential Information,
by its directors, officers and employees; and
(b) restrict the disclosure of the Confidential Information of the Disclosing Party to only
those of its employees or delegates who require the Confidential Information for the
purposes of fulfilling the Recipient's obligations under this Agreement and provided that such disclosure is under conditions of confidentiality consistent with this clause.
25.4 Any Confidential Information of the Disclosing Party remains the sole property of the
Disclosing Party.
26 No Right of Assignment
26.1 The Customer must not delegate or assign any of its rights or obligations under this Agreement to any third party, without the consent of Fluidra, which must not be unreasonably withheld or delayed.
26.2 Fluidra may assign any of its rights or obligations under this Agreement to:
(a) any third party who purchases all or substantially all of the business or assets of Fluidra during the term of this Agreement;
(b) a Related Entity of Fluidra in connection with a genuine corporate re-organisation of Fluidra; or
(c) any third party with the prior written consent of the Customer, which consent must not be unreasonably withheld or delayed.
27 Sanctions
27.1 The Customer shall comply with all laws regarding economic or trade embargoes and sanctions laws that are applicable to its activity ("Sanctions Regulations"). The Customer declares that it is not a listed person nor owned or controlled by a listed person under any of the sanctions regulations of the United States, the European Union and the United Nations.
27.2 The Customer acknowledges that Fluidra supplies the Products to the Customer on
condition that the Customer will not re-supply the Products directly or indirectly to any person in any territory within Cuba, Iran, Crimea (Region of Ukraine), North Korea and Syria that the Customer is aware, or ought reasonably be aware, is subject or target of,
economic sanctions of the United States (OFAC), European Union, United Nations or
other applicable jurisdictions, nor to any customer established in those territories.
27.3 The parties acknowledge that there are certain Products whose re-supply to certain countries including Russia is restricted by the European Union and the United States of America ("Restricted Products"). The Customer acknowledges that Fluidra supplies the
Restricted Products to the Customer on condition that the Customer will not re-supply
r the Restricted Products, directly or indirectly, to any person, entity or body in Russia or for its use in Russia or any other country where the re-supply of the relevant Products is
restricted in accordance with applicable Sanctions Regulations, insofar as the Customer is aware or ought reasonable be aware that the Products are Restricted Products or their re-supply is otherwise restricted.
27.4 Fluidra shall have the right to:
(a) request, at any time, information and documentation from the Customer in order to verify the effective fulfilment of the obligations in this clause 27;
(b) terminate this Agreement or suspend its business relationship with the Purchaser the Customer's violation of the obligations set in this clause 27; and
(c) claim compensation for losses and damages reasonably arising from the Customer ́s violation.
28 General Provisions
28.1 Entire Agreement
This Agreement contains the entire agreement between the Parties with respect to its subject matter and supersedes and replaces all prior agreements.
28.2 Variation
Fluidra may vary any part of this Agreement by providing at least 30 days written notice to the Customer of the variation by:
(a) sending a copy of the varied Agreement to the email address provided by the Customer to Fluidra for the purposes of this Agreement; and
(b) posting the varied Agreement on the Fluidra Customer Portal. If the Customer does not agree to the varied Agreement, the Customer may elect to terminate the Agreement under clause 20.1. If the Customer does not terminate the Agreement before the expiry of the written notice given by Fluidra, the varied Agreement will apply to orders made from
the expiry of the written notice.
28.3 No Partnership
Nothing in this Agreement is intended nor will be construed as constituting a partnership, employee/employer, agency, fiduciary or joint venture relationship between the Parties.
28.4 Severability
Whenever possible, the provisions of this Agreement shall be interpreted so as to be
valid and enforceable under the governing law. However, if one or more provisions of this Agreement is found to be invalid, illegal or unenforceable (in whole or in part), the remainder of the provision and this Agreement shall not be affected and shall continue in full force and effect as if the invalid, illegal or unenforceable provision(s) had never existed.
28.5 Notices
(a) Any notice, request, consent or other communication given under this Agreement, must be in writing and posted, emailed or faxed to the relevant addresses listed in the Customer Application.
(b) A notice is effective for the purposes of this Agreement immediately upon the sending of an email, upon delivery to the recipient or production to the sender of a facsimile transmittal confirmation report before 5.00pm local time on a day in the place in or to which the written notice is delivered or sent or otherwise at 9.00am on the next day following delivery or receipt.
28.6 Waiver
(a) Any failure or delay by either Party in exercising any right under this Agreement or under any order, the exercise or partial exercise of any right under this Agreement, or any reaction or absence of reaction by either Party in the event of breach by the other Party of one or more provisions of the Agreement does not operate, nor can it be construed, as a waiver (either express or implied, in whole or in part) of its rights under this Agreement or preclude the further exercise of any such rights and any such rights are cumulative in favour of that Party.
(b) Any waiver of a right must be express and in writing. If there has been an express written waiver by a Party following a specific failure by the other Party, this waiver cannot be invoked by the other Party in favour of either a new failure, similar to the prior one, or a failure of another nature.
28.7 Counterparts and electronic agreement
(a) This Agreement may be executed in any number of counterparts. This Agreement may be entered into by being provided to the Customer by Fluidra and the Customer accepting the Agreement by clicking the relevant “Accept” button on the Fluidra Customer Portal to acknowledge that the Customer has read understood and agreed to comply with the Agreement.
(b) All counterparts taken together will be taken to constitute one agreement. An executed counterpart or acceptance of the Agreement by either Party may be delivered or confirmed by electronic means.
28.8 Governing Law
(a) Any dispute under or related to the Agreement or its subject matter is governed by and construed in accordance with the laws of the State of New South Wales, Australia.
(b) Each Party irrevocably hereby submits to the non-exclusive jurisdiction of the courts of the State of New South Wales, Australia and courts of appeal from them.