WHOLESALE PURCHASE AGREEMENT
TERMS AND CONDITIONS
Recitals
A. We are an Australian based supplier of designer re-usable coffee cups.
B. We have agreed to supply the Products to you, and you are entitled to resell to individual consumers within the Territory, in accordance with the terms of this Agreement.
Parties
This Agreement is entered into between Huskee Pty Ltd (ABN 44 617 862 763) as the supplier, (we, us, our or Huskee) and the person or entity described in the Invoice as the purchaser, (you or your), together the Parties and each a Party.
1 Acceptance
1.1 You accept this Agreement by the earlier of:
(a) paying all or part of the Price and/or Delivery Costs; and
(b) instructing us (whether orally or in writing) to proceed with the Order.
2 Products and Orders
2.1 In consideration of your payment of the Price and Delivery Costs, we will provide the Products in accordance with this Agreement and the Order.
2.2 An Order under this Agreement is not made until you have made payment of the Price in full.
2.3 We may in our sole discretion, and for any reason, accept or reject an Order.
2.4 An Order cannot be cancelled by you once it is made.
3 Conditions of Resale
3.1 You agree to:
(a) only sell the Products within the Territory in your physical or online store/s; and
(b) not sell any of the Products through online marketplaces, including but not limited to Amazon, eBay, Alibaba, AliExpress, Taobao, and Shopee, unless otherwise agreed in writing between the Parties;
together the “Conditions of Resale”.
3.2 This Agreement does not in any way create the relationship of principal and agent between us and you and under no circumstances will you be considered to be our agent. You agree not to act or attempt to act, or represent yourself, directly or by implication, as our agent or in any manner assume or create, or attempt to assume or create, any obligation, liability, representation, warranty or guarantee on behalf of us or in our name.
4 Price
4.1 An Order will be made upon your full payment of the Price and Delivery Costs, as set out in a corresponding Invoice.
4.2 You agree to pay the Price and Delivery Costs using the payment method set out on the Invoice.
4.3 The Price will be based on the currency specified in the Invoice.
4.4 To the maximum extent permitted by law, we may provide you a list of recommended minimum resale prices at which we recommend that the Products may be resold, and a list of prescribed maximum resale prices at which the Products must be resold. If provided, you agree to consider our recommended minimum resale prices and to comply with our maximum resale prices when selling the Products in the Territory.
5 Delivery
5.1 We will use our reasonable endeavours to deliver the Products to the Delivery Location by the agreed delivery time, however you acknowledge that such time is an estimate only, and creates no obligation on us to supply the Products by that time.
5.2 The Parties agree that the Delivery Costs will be paid in accordance with the Incoterm, and will be in addition to the Price.
5.3 You agree to inspect the Products as soon as possible after their delivery at the Delivery Location, or upon collection by you at the Collection Location. You agree to notify us in writing promptly and, in any event, within 48 hours of such inspection, if you consider that the Products are Defective or do not conform with this Agreement or the relevant Order, specifying the nature of the Defect or lack of conformity. If you fail to notify us within this period, you will be deemed to have accepted the Products.
6 Title and risk
6.1 Title to the Products will pass to you on the date that you pay
the Price (including the Deposit, if any) for the relevant Products
in full.
6.2 Risk in the Products will be transferred in accordance with the
Incoterm.
7 Our obligations
7.1 During the Term, we agree to supply the Products to you in accordance with:
(a) this Agreement and the agreed Order; and
(b) all applicable Laws in Australia.
7.2 We agree to:
(a) supply the Products so that they are free from Defectson delivery or collection (as applicable);
(b) assist you in dealing with complaints from your customers in relation to the Products, where such complaints arise from Defects in the Products or from our default otherwise; and
(c) provide you with access to our existing marketing material and designs for the Products.
8 Your obligations
8.1 HuskeeSwap:
\Where you are reselling the Products directly to end consumers in a bricks and mortar store, you acknowledge that HuskeeSwap and the Products are linked and serve to benefit each other, and agree:
(a) That all Intellectual Property Rights associated with HuskeeSwap, marketing and associated assets are the property of Huskee;
(b) You are responsible for running and operating HuskeeSwap in the location in which you sell the Products to end consumers;
(c) You must adopt and promote HuskeeSwap through your retajl channels exclusively and facilitate any changes as required by us;
(d) You must provide strategic assistance to us to develop a strategic and operational plan for rollout of HuskeeSwap in your retail location (as required by us); and
(e) you must work in good faith with us to finalise any further terms as required by us.
8.2 Promotion, marketing and branding: Without limiting and in addition to any other obligation under this Agreement, you agree:
(a) that in the absence of written pre-approval from us, you may only sell the Products in the form and packaging as supplied by us, unless to do so would be in breach of any applicable Laws relating to the Products or packaging. In this event, you should notify us as soon as possible of any changes to the form and packaging of the Products;
(b) to ensure that all marketing and promotional material complies with all local laws, and not to use the Marketing Materials if it does not; and
(c) to not make or offer any warranty or guarantee, or make any representation, in relation to the Products, other than those warranties, guarantees or representations expressly stated in the material provided by us.
8.3 Product Recalls: You agree to assist us with executing any recalls of the Products when notified by us, and within the timeframe reasonably required by us at our expense. We agree to reimburse you for any costs or expenses reasonably incurred as part of assisting us to execute a recall, unless the recall was caused by you
9 Warranties and representations
9.1 Each Party represents, warrants and agrees that:
(a) it has full legal capacity, right, authority and power to enter into this Agreement, to perform its obligations under this Agreement, and to carry on its business; and
(b) this Agreement constitutes a legal, valid and binding agreement, enforceable in accordance with its terms.
9.2 You represent, warrant and agree that:
(a) you hold all qualifications, certifications, permits, approvals, licences, accreditations and other things required, if applicable, to sell the Products in the Territory; and
(b) You are required to effect and maintain the Required Insurances with a reputable insurance provider from the date of acceptance of this Agreement.
10 Confidentiality
10.1 Each Receiving Party agrees (and will ensure that its Personnel agree):
(a) not to disclose the Confidential Information of the Disclosing Party to any third party;
(b) to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and
(c) to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.
10.2 These obligations do not apply to Confidential Information that:
(a) is required to be disclosed in order for the Parties to comply with their obligations under this Agreement;
(b) is authorised to be disclosed by the Disclosing Party;
(c) is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement;
(d) must be disclosed by law or by a regulatory authority, including under subpoena; or
(e) is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the Receiving Party ensures the adviser complies with the terms of clause 10.1.
10.3 Each Party acknowledges and agrees that monetary damages may not be an adequate remedy for a breach of this clause 10. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach of this clause 10).
10.4 This clause 10 will survive the termination or expiry of this Agreement.
11 Intellectual Property
11.1 As between the Parties, we own all Intellectual Property Rights in the Products, and nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in.
11.2 Where we provide you with Marketing Materials, we own all Intellectual Property Rights in the Marketing Materials, and we grant you a non-exclusive, revocable, worldwide, nonsublicensable and non-transferable right and licence to use the Marketing Materials solely for the promotion of the Products for sale in the Territory by you, as contemplated by this Agreement.
11.3 You must only use Marketing Materials, and no other materials, for the purpose of the sale or resale of the Products under this Agreement.
11.4 When reselling the Products, or in the use of any Intellectual Property Rights in connection with this Agreement, you must not infringe the Intellectual Property Rights of us or any third party.
11.5 In the use of any Intellectual Property Rights in connection with this Agreement, you agree that you must not (and you must ensure that your Personnel do not) commit any Intellectual Property Breach. Where you reasonably suspect that such a breach may have occurred, you must notify us immediately.
11.6 Any goodwill accrued in connection with your use of the Marketing Materials (including our trade marks) will at all times vest in us, and you are not entitled to any compensation for the accrual of goodwill.
11.7 This clause 11 will survive termination or expiry of this Agreement.
12 Liabilities
12.1 To the maximum extent permitted by law, you are liable for, and agree to indemnify us and hold us harmless in respect of, any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with:
(a) any property loss or damage, or personal injury or loss, caused by your (or your Personnel’s) resale of the Products;
(b) any infringement by you or any of your Personnel of the Intellectual Property Rights of us or a third party; or
(c) any breach by you (or any of your Personnel) of clauses 10 or 11 of this Agreement or any Law,except to the extent the Liability was caused by our acts or omissions.
12.2 Despite anything to the contrary, to the maximum extent permitted by law:
(a) neither Party will be liable for any Consequential Loss;
(b) a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the
acts or omissions of the other Party (or any of its Personnel), including a failure to mitigate that Liability; and
(c) our maximum aggregate Liability arising from or in connection with this Agreement will be limited to us resupplying the Products to you or, in our sole discretion, to us repaying you the amount of the Price paid by you to us in respect of the supply of the relevant Products to which the Liability relates.
12.3 This clause 12 will survive the termination or expiry of this Agreement.
13 Force Majeure
13.1 Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if and to the extent that such delay or failure is due to an event or circumstance beyond their reasonable control. A Party affected by such an event or circumstance agrees to notify the other Party as soon as it becomes aware that the event or circumstances is delaying or affecting its performance of its obligations under this Agreement, and agrees to take reasonable steps to mitigate the event or circumstances and their effects.
14 Australian Consumer Law
14.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Products by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). Nothing in this Agreement excludes your Consumer Law Rights. To the maximum extent permitted by law, you agree that our Liability for any Products is governed solely by the Australian Consumer Law and this Agreement.
14.2 Despite anything to the contrary, to the maximum extent permitted by law, if the Australian Consumer Law applies to us as a “manufacturer” (as defined under the Australian Consumer Law), you acknowledge and agree that:
(a) if you re-supply the Products to a “consumer” (as defined under the Australian Consumer Law), you may only commence a claim against us under the Australian Consumer Law to recover losses suffered if the consumer makes a successful claim against you for a breach of one of the following consumer guarantees with respect to the Products:
(1) Australian Consumer Law guarantee as to acceptable quality;
(2) Australian Consumer Law guarantee as to fitness for any disclosed purpose which the consumer made known to us; or
(3) Australian Consumer Law guarantee relating to the supply of goods by description,
and you commence your claim against us within 3 years of
the earlier of:
(4) the date on which you made a payment with respect to, or otherwise discharged in whole or in part, your liability to the consumer; and
(5) the date on which the consumer first commenced proceedings against you for a breach of the relevant Australian Consumer Law guarantee(s) as set out above; and
(b) if the Products are not of a kind ordinarily acquired for personal, domestic or household use or consumption, our maximum aggregate liability for any Liability to you in relation to the Products will be an amount equal to the lowest of the cost of:
(1) replacing the Products; or
(2) obtaining equivalent Products; or
(3) having the Products repaired.
14.3 Subject to your Consumer Law Rights, we exclude all express and implied warranties (except as expressly provided in this Agreement), and all material, work and services (including the Products) is provided to you without any warranties of any kind, either express or implied, whether under statute, at law or on any other basis.
14.4 This clause 14 will survive termination or expiry of this Agreement.
15 Disputes
15.1 A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
16 General
16.1 Amendment: This Agreement may only be amended by written instrument executed by the Parties.
16.2 Assignment: A Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
16.3 Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.
16.4 Entire agreement: This Agreement contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
16.5 Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.
16.6 Governing law: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
16.7 Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
16.8 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
16.9 Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.
17 Value Added Tax
17.1 If GST or any other value added tax is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the GST (or equivalent tax) payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement, unless it is expressed to be inclusive of GST (or equivalent tax). The recipient is not required to pay any GST (or equivalent tax) until the supplier issues a tax invoice for the supply.
17.2 Where applicable, the terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth). Where the value added tax is not GST, the words take their ordinary meaning.
17.3 Other Taxes: You will bear, and be liable for, all Taxes applied in respect of the resale of the Products under this Agreement.
18 Definitions and Interpretation
18.1 Interpretation
In this Agreement, unless the context otherwise requires:
(a) a reference to this Agreement or any other Agreement includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
(b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
(c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
(d) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
(e) a reference to a party to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
(f) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them severally; and
(g) a reference to time is to local time in New South Wales, Australia.
18.2 Definitions
In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, and:
Agreement means this Wholesale Purchase Agreement, the Invoice, and any annexures and attachments included in this Wholesale Purchase agreement.
Business Day means a day on which banks are open for general banking business in New South Wales, excluding Saturdays, Sundays and public holidays.
Conditions of Resale is as defined in clause 3.1.
Confidential Information includes information or documentation which:
(a) is disclosed to the Receiving Party in connection with this Agreement at any time;
(b) is prepared or produced under or in connection with this Agreement at any time;
(c) relates to the Disclosing Party’s business, assets or affairs; or
(d) relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.
Consequential Loss means any special, indirect or consequential loss, and includes any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
Defect means a failure of the Product to comply with our specifications for the relevant Product, as a result of our default, and Defective has a corresponding meaning.
Delivery Location means the place where the Products will be delivered, as set out under ‘Shipping Details’ in the Invoice.
Delivery Costs means the cost of shipping for delivery of an Order to you, as set out in an Invoice.
Disclosing Party means the party disclosing the Confidential Information to the Receiving Party.
HuskeeSwap means the Supplier’s cup exchange system.
Incoterm means the Ex Works (EXW) incoterm, as set out in the Incoterms rules 2020 published by the International Chamber of Commerce.
Invoice means the tax invoice for the Products you wish to order, as sent by us to you.
Intellectual Property means any copyright, registered or unregistered designs or trade marks, domain names; know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third-party rights, including any Intellectual Property Rights of third parties), including using or exploiting our Intellectual Property for purposes other than as expressly stated in this Agreement, including, without limitation:
(a) using our Intellectual Property, including Marketing Materials, for any other purpose other than for the purpose of the sale or resale of the Products under this Agreement;
(b) registering our Intellectual Property in any jurisdiction; (c) on-selling our Intellectual Property to third parties; and (d) altering, removing or defacing any of our Intellectual Property, including our Marketing Materials.
Intellectual Property Rights means, for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.
Law or Laws means all applicable laws, orders, judgments, rules, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with this Agreement or the provision of the Products.
Liability means any expense, cost, liability, loss, damage, claim, demand or proceeding (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent.
Marketing Materials means any marketing materials authorised to be used by us, and which we provide to you, for the purpose of promoting the Products, and any registered or unregistered trade marks relating to Huskee and HuskeeSwap.
Order means an order that has been made by you and accepted by us, for the provision of Products to you as set out in an Invoice.
Personnel means, in respect of a Party, any of its officers, employees, consultants, suppliers, subcontractors or agents.
Price means the price payable by you to us for the Products and Delivery (excluding taxes), as set out in your Invoice.
Products means the products we agree to supply to you, as set out in your Invoice.
Receiving Party means the party receiving Confidential Information from the Disclosing Party.
Required Insurances means:
• a public and products liability insurance policy, or equivalent, in the amount of no less than $20 million for any one claim, from the date of acceptance (and for a reasonable period thereafter);
• a professional indemnity insurance policy, or equivalent, in the amount of no less than $10 million for any one claim, from the date of acceptance (and for a period of 6 years thereafter); and
• all other insurances required by Law in order for you to resell the Products.
Tax mean means any tax, levy, charge, impost, duty, fee, deduction, compulsory loan or withholding which is assessed, levied, imposed or collected by any government agency and includes, but is not limited to, any interest, fine, penalty, charge, fee or other amount imposed in respect of any of the above.
Territory means the country where we deliver the products to ou, unless otherwise agreed in writing between the Parties.