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Retailer Trading Agreement | ASICS Australia
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RETAILER TRADING AGREEMENT
ASICS OCEANIA PTY LTD (ABN 59 003 091 389) of 6 Darling Street, Marsden Park,
New South Wales, 2765, Australia (ASICS) agrees to supply Products to you the
Customer subject to the terms and conditions of this Agreement.
You have been directed to this Agreement by ASICS, including by means of an
Order Confirmation, Invoice, Price list or other source supplied by ASICS with
the purpose of establishing the terms and conditions that will apply to any and
all Products that ASICS agrees to supply to you.
Unless otherwise agreed by ASICS in writing this Agreement will apply to each
supply of Products and ASICS may refuse in its sole discretion to make
subsequent supplies of Products unless the Customer enters into the ASICS
Retailer Trading Account Agreement.
As a Customer and purchaser of ASICS’ Products you agree that ASICS will not be
subject to any terms and conditions that you may issue, including any standard
terms or terms of trade used by you the Customer when purchasing goods or
services or both.
You as Customer acknowledge and agree that unless you seek to amend the terms of
this Agreement prior to the Cancellation Date of the ASICS’ Products to be
supplied, you are deemed to accept the terms of this Agreement upon such
Cancellation Date for all deliveries of the Products in whole or in part. ASICS
is not bound by any amendment to this Agreement that you request unless ASICS
agrees in writing.
The Customer declares that it has never been subject to an Insolvency Event and
is not presently subject to any action, claim or proceedings by any officer,
employee, agent, contractor, customer or other third party.
The Directors of the Customer declare that they are not discharged or
undischarged bankrupts and have not been charged with any serious or indictable
criminal offence.
Unless otherwise defined all capitalised words or expressions used in this
Agreement have the meaning given to them in the Schedules. Defined words or
expressions in one Schedule may be used in the other Schedules.
IF YOU ORDER ANY PRODUCTS FROM ASICS YOU AGREE THAT THE TERMS AND CONDITIONS OF
THIS AGREEMENT WILL APPLY AS SET OUT ABOVE AND IN THE ATTACHED SCHEDULES.
SCHEDULE 1 – TERMS OF TRADE
ASICS OCEANIA PTY LTD (ABN 59 003 091 389) of 6 Darling Street, Marsden Park,
New South Wales, 2765, Australia (ASICS) agrees to supply Products to you the
Customer subject to the terms and conditions of this Agreement.
You have been directed to this Agreement by ASICS, including by means of an
Order Confirmation, Invoice, Price list or other source supplied by ASICS with
the purpose of establishing the terms and conditions that will apply to any and
all Products that ASICS agrees to supply to you.
Unless otherwise agreed by ASICS in writing this Agreement will apply to each
supply of Products and ASICS may refuse in its sole discretion to make
subsequent supplies of Products unless the Customer enters into the ASICS
Retailer Trading Account Agreement.
As a Customer and purchaser of ASICS’ Products you agree that ASICS will not be
subject to any terms and conditions that you may issue, including any standard
terms or terms of trade used by you the Customer when purchasing goods or
services or both.
You as Customer acknowledge and agree that unless you seek to amend the terms of
this Agreement prior to the Cancellation Date of the ASICS’ Products to be
supplied, you are deemed to accept the terms of this Agreement upon such
Cancellation Date for all deliveries of the Products in whole or in part. ASICS
is not bound by any amendment to this Agreement that you request unless ASICS
agrees in writing.
The Customer declares that it has never been subject to an Insolvency Event and
is not presently subject to any action, claim or proceedings by any officer,
employee, agent, contractor, customer or other third party.
The Directors of the Customer declare that they are not discharged or
undischarged bankrupts and have not been charged with any serious or indictable
criminal offence.
Unless otherwise defined all capitalised words or expressions used in this
Agreement have the meaning given to them in the Schedules. Defined words or
expressions in one Schedule may be used in the other Schedules.
IF YOU ORDER ANY PRODUCTS FROM ASICS YOU AGREE THAT THE TERMS AND CONDITIONS OF
THIS AGREEMENT WILL APPLY AS SET OUT ABOVE AND IN THE ATTACHED SCHEDULES.
SCHEDULE 1 – TERMS OF TRADE
1. Definitions
Unless the context indicates otherwise and in addition to the terms defined in
the Internet Policy:
Agreement means this Terms of Trade (Schedule 1), the Internet Policy (Schedule
2) and the cover introduction page.
Approved Internet Web Sites for Customer is defined as “Web Sites” in the
Internet Policy.
Approved Trading Address(es) for Customer means any Customer outlets approved by
ASICS for the sale of Products in an Order Confirmation, Invoice or other
document issued by ASICS to the Customer from time to time.
Approved Trading Hours for Customer has the meaning set out in Schedule 1, ASICS
Account Details.
ASICS Retailer Trading Account Agreement means the execution version of this
Agreement that includes certain information about the Customer and establishes a
trading account between the Customer and ASICS when it is fully signed by each
of them.
Associated Entity means:
(a) a corporation that is related to a party as defined in 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 (including through intermediaries) has at
least a 40% ownership interest through stock ownership, voting rights or
otherwise, or has the maximum ownership interest it is permitted to have in the
country where it exists.
Australian Consumer Law has the meaning set out in Schedule 2 of the Competition
and Consumer Act 2010 (Cth);
B2B Portal means the internet business portal that ASICS supplies to some
approved Customers from time to time, located at URL www.b2b.asics.com.au;
Business Day means a day that is not a Saturday, a Sunday, nor a public holiday
in Sydney, New South Wales, Australia or in the State or Territory where the
registered office of the Customer is located.
Cancellation Date means the date that is five (5) Business Days after the date
of the Order Confirmation.
CIF means ‘Cost, Insurance and Freight’ as defined in Incoterms 2020 published
by the International Chamber of Commerce.
CIP means ‘Carriage and Insurance paid to destination’ as defined in Incoterms
2020 published by the International Chamber of Commerce.
Collection Date means the date estimated in the Order Confirmation that the
Customer can collect the Products from ASICS.
Commencement Date means the date that the Customer first requests the supply of
Products and if that date is disputed, the Cancellation Date of the Agreement.
Confidential Information means all details and information (whether provided
orally, in writing or by any other means by any person) relating to the
commercial and business affairs of the disclosing person (Discloser) and
includes all:
(a) agreements, deeds, deal memos, correspondence, plans and proposals regarding
the Discloser;
(b) financial and business information provided in all formats in relation to
the business of the Discloser including management reports, sales reports and
marketing reports;
(c) Product pricing including wholesale prices, rebates, margins and discounts;
(d)Product launch dates and the release of Product images or details before
launch dates including shoe and apparel styles, designs, colours, names and
third party branding;
(e)customer details and lists;
(f) intellectual property, trade secrets, specialised knowhow or practice,
inventions (whether or not reduced to practice), methodologies, formulae,
graphs, drawings, specifications, designs, samples, devices, models, computer
generated or stored information or computer programming code (including source
and object code);
(g) information designated or imparted in confidence (or which might reasonably
be understood to have been disclosed to the Recipient in confidence) by the
Discloser; and
(h) records and all copies of such records in whatever form prepared by the
Recipient based on or incorporating any and all information provided by the
Discloser to the Recipient including: (i) all information created, ascertained,
discovered or derived by the Recipient, directly or indirectly from any
information furnished by or on behalf of or concerning the Discloser; and (ii)
all such Recipient’s records created before or after the date of this Agreement;
The following is not Confidential Information:
(a) information which is lawfully in the public domain prior to its disclosure
to Receiver by Discloser;
(b) information which enters the public domain otherwise than as a result of an
unauthorised disclosure;
(c) information which is or becomes lawfully available to the Receiver from a
third party who has the lawful power to disclose such information to the
Receiver on a non-confidential basis; and
(d) information which is rightfully known by the Receiver (as shown by its
written record) prior to the date of disclosure.
Information is not considered to be in the public domain for the purposes of
this Agreement unless it is lawfully available to the general public from a
single source without restriction on its use or disclosure.
Confidentiality Agreement means any confidentiality agreement between ASICS and
the Customer dated on or before the date of this Agreement if applicable.
Consequential Loss means any form of incidental, indirect, special, exemplary,
punitive or consequential Loss including any third party Loss, loss of profits,
loss of production, increased operating costs, loss of revenue, loss of data,
loss or denial of opportunity, loss of goodwill, loss of reputation, loss of
anticipated savings, loss of interest or credit rating and pure economic loss;
which is not a natural or normal consequence of a cause of action suffered or
incurred by any person whether arising in contract or tort (including
negligence) or under any statute.
Contract means the contract formed between ASICS and Customer by the acceptance
of an Order Confirmation or the deemed acceptance of an Order Confirmation
pursuant to clause 2.6.
Control has the meaning set out in section 50AA of the Corporations Act 2001
(Cth) and includes a power or control that is direct or indirect or that is, or
can be, exercised as a result of, by means of, or by the revocation or breach of
a trust, an agreement, a practice or any combination of them, whether or not
they are enforceable. It does not matter whether the power or control is express
or implied, formal or informal, exercised alone or jointly with another person.
Delivery Date means the date estimated in the Order Confirmation that ASICS will
deliver the Products to the Customer.
EXW means ‘Ex Works’ as defined in Incoterms 2020 published by the International
Chamber of Commerce.
GST means GST as defined in the A New Tax System (Goods and Services Tax) Act
1999 (Cth) as amended from time to time (“GST Act”) or any replacement or other
relevant legislation and regulations, and words used which have particular
meaning in the “GST law” (as defined in the GST Act, and also including any
applicable legislative determinations and Australian Taxation Office public
rulings) have the same meaning where the context requires.
Initial Term means a period of 18 months from the initial Order Confirmation or
if no Order Confirmation is issued then from the first Invoice.
Insolvency Event means, in relation to a party:
(a) a receiver, receiver manager, trustee, administrator, other controller (as
defined in the Corporations Act 2001 (Cth) or similar official is appointed over
any of the assets or undertakings of the other party; the party suspends payment
of its debts generally;
(b) the party suspends payment of its debts generally;
(c) the party is or becomes unable to pay its debts when they are due or is or
becomes unable to pay its debts or is presumed to be insolvent within the
meaning of the Corporations Act 2001 (Cth);
(d) the party enters into or resolves to enter into any arrangement, composition
or compromise with, or assignment for the benefit or, its creditors or any class
of them;
(e) the party ceases to carry on business or threatens to cease to carry on
business;
(f) a resolution is passed or any steps taken to appoint, or to pass a
resolution to appoint, an administrator; or
(g) an application or order is made for the winding up or dissolution of the
other party, or a resolution is passed, or any steps are taken to pass a
resolution, for the winding up or dissolution of the other party, otherwise than
for the purpose of an amalgamation or reconstruction that has the prior written
consent of the first party;
Intellectual Property means all present and future rights, title and interest
conferred by statute, common law or equity in or in relation to copyright, trade
marks, service marks, designs, inventions (including patents), circuit layouts,
business and domain names, and Confidential Information, whether or not now
existing and whether or not registered or registrable and includes:
(a) any right to apply for the registration of these rights;
(b) all renewals and extensions of these rights; and
(c) all ancillary rights or related rights such as Moral Rights (to the extent
applicable).
Internet means the worldwide web of linked computers including any private or
proprietary network that connects to the worldwide network through any bridges,
gateways or other devices.
Internet Policy means the ASICS Internet Policy as set out in Schedule 4 of this
Agreement.
Invoice means the tax invoice issued by ASICS to Customer in which these Terms
of Trade are deemed to be incorporated.
Loss means all liabilities, losses, damages, expenses and costs (including legal
costs and disbursements on a full indemnity basis and whether incurred or
awarded), of any kind and nature whether arising in contract or tort (including
negligence) or under any statute.
Marketing Material has the meaning set out in the ASICS’ Internet Policy and
includes all signs, three dimensional logos and other materials supplied by
ASICS or that feature any of ASICS’ Intellectual Property, including such items
that are created by Customer.
Moral Rights means:
(a) a right of attribution of authorship; or
(b) a right not to have authorship falsely attributed; or
(c) a right of integrity of authorship; or
(d) a right of a similar nature.
Order has the meaning set out in clause 2.1 of these Terms of Trade.
Order Confirmation means ASICS notification to Customer of ASICS acceptance of
the Order as set out in clause 2.3 of these Terms of Trade.
Personal Guarantee means the document set out in Schedule 3 to this Agreement.
Pre-Order means an Order that is issued by Customer a minimum of 6 months before
the Delivery Date of the Products. A Pre-Order includes ‘future bookings’ and
‘indents’ and all such words and expressions for advanced Orders, provided that
such Orders are placed a minimum of 6 months before the Delivery Date of the
Products.
Price means the wholesale price for Products offered by ASICS to Customer from
time to time as determined by ASICS in its sole discretion.
Product means all genuine ASICS products supplied by ASICS in the Territory as
varied from time to time in the sole discretion of ASICS, unless some
restriction on the range of products to be supplied to the Customer is set out
in an Order Confirmation, Invoice or other document issued by ASICS to Customer.
Recipient means either ASICS or Customer in their capacity as receivers of
Confidential Information from the other party or the Related Bodies Corporate of
the other party or from any person.
Related Body Corporate has the meaning given in the Corporations Act 2001.
Security Interest means:
(a) 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.
Term has the meaning set out in clause 19.1.
Territory means Australia if ASICS permits the Customer to operate an Approved
Internet Web Site(s), otherwise the territory is limited to the geographical
reach of the Approved Trading Address(es) and Approved Trading Hours of the
Customer in the applicable State or Territory of Australia.
2. Orders
2.1 Customer may at any time place orders for Products by completing and sending
to ASICS a written order, by way of email or (if authorised by ASICS) by means
of the ASICS B2B Portal (Order), indicating the following:
(a) the Product to be supplied;
(b) the quantity of Product to be supplied;
(c) the date upon which Product is to be delivered; and
(d) if Customer requests ASICS to deliver Products to Customer, details of the
Customer’s delivery address; or
(e) if Customer requests to collect the Product a proposed date for collection.
2.2 Any amendments or variations to an Order received by ASICS must be approved
by ASICS in writing to be effective. Any amendments or variations to an Order
received by ASICS after the Cancellation Date or after ASICS issues an Invoice
will be deemed rejected.
2.3 If ASICS elects to respond to an Order, ASICS will send Customer an Order
Confirmation, by way of email or (if Customer is authorised by ASICS to use the
ASICS B2B Portal) by means of the ASICS B2B Portal, indicating the following:
(a) the Product to be supplied;
(b) the quantity of the Product to be supplied;
(c) the Price, including any deposit amount required or schedule of payments or
bulk discount;
(d) a date and location for collection of the Product, or
(e) if the Product is being delivered to Customer, the Delivery Date, the cost
of delivery (see clauses 3.1 and 3.2) and the delivery details.
2.4 ASICS may refuse an Order in its sole discretion. If ASICS does not respond
to an Order within twenty (20) Business Days of receipt the Order is deemed
rejected by ASICS.
2.5 ASICS may withdraw an Order Confirmation on or before the Delivery Date and,
any pre-payment by the Customer for such Order will be promptly refunded.
2.6 The Customer will be deemed to accept an Order Confirmation unless the
Customer rejects the Order Confirmation in writing on or before the Cancellation
Date.
2.7 Any terms and conditions attached to or incorporated in any Order supplied
by Customer will not form part of the Contract unless such terms are confirmed
in the Order Confirmation or invoice by ASICS.
2.8 Despite clause 2.6, if the Customer Pre-orders and ASICS issues an Order
Confirmation more than 45 days before the Delivery Date, Customer may
subsequently cancel the Pre-Order at any time up to and including 45 days before
the Delivery Date. If ASICS issues an Order Confirmation up to and including 45
days before the Delivery Date of a Pre-Order then clause 2.6 applies. Pre-Orders
are not subject to collection by the Customer but will otherwise be treated the
same as Orders under this clause 2.
3. Delivery
3.1 ASICS shall use reasonable commercial endeavours to deliver the Products to
the Customer on the Delivery Date or as stated in the Invoice subject to the
following:
(a) if the Customer is required by ASICS to collect the Product, ASICS shall use
reasonable commercial endeavours to make the Product available for collection by
the Customer, on the Collection Date or on the date specified in the Invoice on
an EXW basis. Customer is deemed to receive the Products once collected by
Customer or an agent of Customer or any person claiming the Products in the name
of the Customer, at the location named in the corresponding Order Confirmation
or Invoice;
(b) if ASICS is required to deliver the Product to the Customer, ASICS shall use
reasonable commercial endeavours to deliver the Product to the Customer on the
Delivery Date or on the date specified in the Invoice, on a CIF or CIP basis,
with all delivery costs added to the Price of the Products, unless otherwise
agreed in writing by ASICS.
3.2 ASICS agrees to deliver Products free into the Customer’s Approved Trading
Address(es) for Orders that exceed $250 (exclusive of GST). All Orders (other
than Pre-Orders) that are less than $250 (exclusive of GST) will be charged a
flat delivery fee of $10 (exclusive of GST) per Contract. ASICS will not charge
a delivery fee for Pre-Order Products.
3.3 Any Delivery Date or Collection Date made known by ASICS to Customer is an
estimate only and ASICS will not be liable for a late delivery, partial delivery
or a non-delivery. Under no circumstances shall ASICS be liable for any Loss,
damage or delay occasioned to Customer or the Customer’s customers or clients
arising from late, partial or non-delivery.
3.4 The time for delivery of the Products is not of the essence of this
Agreement.
3.5 If the Order is not received within twenty (20) Days of the Delivery Date or
the Collection Date, the Customer may cancel an Order by providing Notice in
writing to ASICS. Delivery may be made in instalments. Each instalment will be
treated as a separate delivery with the Price being apportioned in accordance
with the proportion of the Products delivered.
3.6 Customer must hold and maintain in reasonable condition all packaging
materials supplied with the Products for a period of ten (10) Business Days
after receipt of the Product by the Customer or its service agent. ASICS
reserves the right to collect such packaging materials from the Customer during
this period.
4. Acceptance of Products
4.1 Customer shall inspect all Products upon receiving the Products, and must
immediately notify ASICS of any visible damage to the packaging of the Product
and must also give notice to ASICS in writing within ten (10) Business Days of
any defects, damages, shortages or anything else not in accordance with the
corresponding Invoice.
4.2 If Customer fails or elects not to notify ASICS of any defect in the
Products supplied or other material non-compliance with the Invoice in
accordance with clause 4.1, Customer shall be deemed to have accepted the
Products and the Products shall be conclusively presumed to be in accordance
with these Terms of Trade in terms of any defect or damage which should have
been apparent upon reasonable inspection by the Customer. This clause does not
exclude any rights the Customer may have to an indemnity where the Products
breach the warranties provided to consumers under the Australian Consumer Law.
4.3 If Customer notifies ASICS of any defect in the Products supplied or other
material non-compliance with the Invoice in accordance with clause 4.1, Customer
shall not carry out any remedial work to the alleged defective Products without
first obtaining the written consent of ASICS to do so. The Customer shall give
ASICS a reasonable opportunity of not less than twenty (20) Business Days from
delivery to rectify any material non-compliance with the Invoice notified by the
Customer in accordance with clause 4.1.
4.4 If ASICS using reasonable commercial endeavours is unable to rectify any
notified defect or material non-compliance with the Invoice to the reasonable
satisfaction of the Customer, the parties will determine a reduction in the
purchase Price by agreement and clause 14 will apply.
4.5 Any and all written statements made by ASICS as to weight, quantity,
dimension, size, performance characteristics and any other description of the
Products are approximate and should be construed as such by the Customer.
5. Price and Payment
5.1 The Price for the Products is inclusive of:
(a) packaging costs;
(b) insurance, but only as specified in the Invoice;
(c) delivery, transportation and freight charges including any applicable taxes
or duties as specified in the Invoice; and
(d) GST if applicable, unless the parties agree otherwise in writing.
5.2 Customer will pay the Price for Products ordered by and delivered to it in
accordance with clauses 2 and 3 with such payment to be made on or before the
end of the month following the date of the ASICS’ Invoice. Time is of the
essence for these payments.
5.3 Customer will pay the Price for Products ordered and collected by it in
accordance with clauses 2 and 3 prior to or upon collection of the Products. If
ASICS permits the Customer to collect Products without prior or immediate
payment then payment must be made on or before the end of the month following
the date of the ASICS’ Invoice. Time is of the essence for these payments.
5.4 For any agreed settlement discount to apply, payment must be made strictly
in accordance with clauses.
5.5 The Price and any other payments made by Customer to ASICS under this
Agreement are to be made in Australian currency.
5.6 The Price and any other payments made by Customer to ASICS under this
Agreement will be made in accordance with the Invoice and if no payment
direction is set out in the Invoice then by bank draft made payable to ASICS or,
at ASICS’ option, direct deposit into an Australian bank account notified by
ASICS in writing at least two Business Days prior to the due date.
5.7 Customer may not assert or exercise any right of set-off against any monies
payable by Customer to ASICS under these Terms of Trade or under any other
agreement or arrangement between ASICS and the Customer.
5.8 Payment is only received by ASICS when it receives cash or when the proceeds
of other methods of payment are credited and cleared to ASICS’ bank account.
5.9 If any payment owed by ASICS is not paid when due, it shall bear interest,
at the prescribed rate pursuant to the Civil Procedures Act 2005 (NSW),
calculated on a daily basis from the date on which it is due until it is paid.
5.10 Without limitation to clause 5.9, Customer shall fully indemnify and
reimburse ASICS for all Loss, including reasonable legal and debt recovery
costs, that is incurred by ASICS for the collection of late payments by the
Customer under clauses 5.2 and 5.3.
5.11 Any and all expenses, costs and charges incurred by the Customer in the
performance of its obligations under this Agreement shall be paid by the
Customer unless ASICS has expressly agreed beforehand in writing to pay such
expenses, costs and charges.
5.12 The Customer shall be responsible for the administration, collection,
remittance and payment of any and all taxes, duties, charges, levies,
assessments and other fees of any kind imposed by governmental or other
authority in respect of the purchase, receipt, importation, sale or other
disposal of the Products.
5.13 ASICS may change, including increase, the Price of Products on not less
than seven (7) days’ notice prior to delivery, upon written notice to the
Customer to reflect (i) any significant change in costs to ASICS of labour,
materials or delivery; or (ii) an increase or imposition of any tax, duty or
other levy, (iii) any variation in exchange rates; (iv) any change of delivery
dates requested by Customer; or (vi) any delay caused by supply or non-supply of
instructions by Customer.
5.14 If ASICS seeks to increase the Price of Products after the Cancellation
Date, then the Customer may cancel the existing Order prior to the delivery of
the Products.
5.15 Customer shall solely determine the price at which it sells the Products.
The Customer will not use the Products as a loss leader.
5.16 Any references by ASICS to the retail price of the Products are
recommendations only.
6. GST
6.1 Unless GST is expressly included, the consideration expressed to be payable
under any other paragraph of this Agreement for any supply made under or in
connection with this Agreement does not include GST.
6.2 Each party agrees to do all things, including providing tax invoices and
other documentation that may be necessary or desirable to enable or assist the
other party to claim any input tax credit adjustment or refund in relation to
any amount of GST paid or payable in respect of any supply made under or in
connection with this Agreement. A party is not obliged to make a payment under
this Agreement if the other party does not provide a valid tax invoice.
6.3 If a payment to a party under this Agreement is a payment by way of
reimbursement or indemnity and is calculated by reference to the GST inclusive
amount of a loss, cost or expense incurred by that party, then the payment is to
be reduced by the amount of any input tax credit to which that party is entitled
in respect of that loss, cost or expense before any adjustment is made for GST.
7. Credit Trading Account Application
7.1 ASICS will only offer credit terms upon execution of the ASICS Retailer
Trading Account Agreement and subject to the prior written approval of ASICS,
together with any other documentation required by ASICS, such as a personal
guarantee or other surety.
8. Customer Obligations
8.1 General Obligations
Customer agrees at all times during the Term to:
(a) use its best endeavours to promote and sell the Products;
(b) employ and train competent personnel, capable of providing all sale and
support services as required for the Products;
(c) sell the Products as supplied by ASICS and Customer shall not undertake any
modification, alteration or additions thereto without the written approval of
ASICS;
(d) conduct business in a manner that does not reflect unfavourably on the
Products or on the good name, goodwill and reputation of ASICS;
(e) avoid deceptive, misleading or unethical practices; and
(f) make no representations or warranties concerning the capabilities,
functionality, performance or other characteristics of the Products other than
those which are consistent in all material respects with, and do not expand the
scope of, the documentation, literature or marketing materials for the Products
as supplied to Customer by ASICS from time to time.
8.2 Point of Sale
Customer will not sell the Products from any places other than the Approved
Trading Address(es) and any other outlet approved by ASICS in writing. Without
limitation to the foregoing, Customer will not sell the Products in any market
stall or a pop-up store without the approval of ASICS in writing. Customer will
not sell the Products outside the Approved Trading Hours for Customer for each
Approved Trading Address unless approved by ASICS in writing. A breach of this
condition may result in immediate termination of this Agreement under clause
19.4.
8.3 Territorial Restrictions
Customer will not sell or offer for sale the Products outside the Territory,
directly or indirectly, by itself or through any other party including by means
of the Internet. Customer will inform ASICS if the Customer expands its retail
operations outside of the Territory or uses any Internet based sales other than
the Approved Internet Web Site(s) for Customer. A breach of this condition may
result in immediate termination of this Agreement under clause 19.4.
8.4 Late Payment
Customer acknowledges and agrees that time is of the essence when Customer is
required to meet its payment obligations under this Agreement, including under
clauses 5.2 and 5.3. The Customer agrees that where a failure to meet its
payment obligations is not remedied within five (5) Business Days this may
result in immediate termination of this Agreement under clause 19.4.
8.5 Resellers
Customer must not sell the Products to anyone that it knows or ought to
reasonably suspect may on-sell the Products inside or outside of the Territory
and must take reasonable steps to prevent this occurring, including where
appropriate, imposing relevant restrictions in re-seller agreements. A breach of
this condition may result in immediate termination of this Agreement under
clause 19.4.
8.6 Change in Control
Customer will inform ASICS immediately of any changes or proposed changes in the
ownership or Control of the Customer. A breach of this condition may result in
immediate termination of this Agreement under clause 19.4.
8.7 Violation of the Law
Customer will inform ASICS immediately of any violation of the law in the
Territory resulting in a judgment debt against the Customer exceeding $5,000 or
a criminal conviction for the Customer or of any of its officers or employees,
other than minor traffic offences. A breach of this condition may result in
immediate termination of this Agreement under clause 19.4.
8.8 Counterfeit Products
Customer will only sell Products that are genuine ASICS’ products. Customer will
not source counterfeit products purporting to be authorised by ASICS or that
feature the ASICS’ trade marks where such use is unauthorised, from third
parties for sale in the Territory. A breach of this condition may result in
immediate termination of this Agreement under clause 19.4.
8.9 Quarterly Forecasts
Customer will supply ASICS with quarterly written forecasts completed in good
faith and in accordance with the reasonable instructions of ASICS reflecting the
quantities of Products that the Customer genuinely intends to buy from ASICS
during the next quarter with such forecasts to be submitted to ASICS within five
(5) Business Days of the end of each quarter.
8.10 Customer Minimum Requested Purchase Amounts
Not used.
8.11 Inventory
Customer agrees to maintain on its own account an inventory of the Products at
levels which are appropriate and adequate for the Customer to meet demand for
the Products throughout the Territory. Customer agrees to maintain all stocks of
Products which it holds in conditions appropriate for their storage and to
provide adequate security for the Products all at its own cost.
8.12 Stock Inspection
Subject to ASICS complying with the reasonable safety directions of the
Supplier, Customer agrees to allow ASICS to inspect the inventory of the
Products held by the Customer at the Approved Trading Address for Customer and
at all other locations where the Products may be stored to check compliance with
clause 8.11 and the terms of this Agreement. The Customer agrees to give ASICS
access within two (2) days of ASICS’ request. Each party will bear its own costs
of the inspection. A breach of this condition may result in immediate
termination of this Agreement under clause 19.4.
8.13 Records
Customer agrees to keep full and proper books of account and records showing
clearly all sales, transactions, returns and any proceedings relating to the
Products and to allow ASICS on reasonable notice access to the Customer’s
accounts and records relating to the Products for the purpose of inspection and
Customer will provide, at the request and reasonable cost of ASICS, relevant
accounting information and records.
8.14 Compliance
Customer must comply with all applicable laws, regulations and industry
standards relating to the sale of the Products in the Territory.
8.15 Account Details
Not used.
9. E-Retailer and Internet Policy
9.1 Customer may only supply and sell the Products on the Internet including on
any website owned or Controlled by the Customer with the prior written consent
of ASICS and subject to the Internet Policy.
9.2 ASICS may withhold consent for the Customer to use the Internet in
connection with the sale of the Products despite agreeing to supply the Customer
with Products. The Customer acknowledges that the mere inclusion of the Internet
Policy in this Agreement does not automatically grant the Customer the right to
sell Products on the Internet. For the Customer to sell Products on the Internet
ASICS must grant approval in accordance with clause 9.3. If ASICS grants
Customer the right to sell the Products on the Internet at any time, the
Customer agrees to be bound by the Internet Policy.
9.3 ASICS may grant consent for the Customer to use the Internet in connection
with the sale of the Products by asking the Customer to sign the Internet Policy
or by asking the Customer to sign the ASICS Retailer Trading Account Agreement
or by including a statement granting consent for sales on the Internet by means
of an Order Confirmation, Invoice or other document issued by ASICS to the
Customer from time to time. The consent of ASICS is conditional on the Customer
ensuring at all times that there is an obvious link or relationship between the
Approved Internet Web Site(s) for Customer and the Approved Trading Address(es)
of the Customer. Without limitation to the foregoing, the Customer will not use
third party websites to sell the Products including EBAY.com.au, Gumtree.com.au,
Shopify.com.au, Scoopon.com.au, TheActive.com.au, TradingPost.com.au,
Amazon.com.au and CatchOfTheDay.com.au (this list is not exhaustive). Subject to
the Internet Policy, ASICS acknowledges that the necessary link or relationship
between the Approved Internet Web Site(s) for Customer and the Approved Trading
Address(es) of the Customer may be demonstrated by displaying the Approved
Trading Address(es) of the Customer on the Approved Internet Web Site(s) for
Customer and reflecting the name of retail outlet(s) of the Approved Trading
Address(es) of the Customer in the domain name address or uniform resource
locator of the Approved Internet Web Site(s) for Customer.
9.4 ASICS may amend the Internet Policy from time to time during the Term of
this Agreement. ASICS will inform the Customer of any changes to the Internet
Policy by email and if Customer refuses or is unable to comply with the amended
Internet Policy within twenty (20) Business Days of the receipt of ASICS' notice
then the Customer must immediately cease all Internet sales of the Products.
9.5 Customer acknowledges and agrees that a breach of this clause 9, including
any sales on the Internet without ASICS’ approval under clauses 9.2 and 9.3 or
in contravention of the terms of the Internet Policy where approval to sell by
means of Internet is given, may result in immediate termination of this
Agreement under clause 19.4.
9.6 Without limitation to the remaining provisions in this clause 9, the
Customer acknowledges and agrees that the sale of any Products from the Web Site
resulting in a supply of the Products outside the Territory, may result in
immediate termination of the right to sell the Products by means of the Internet
or the immediate termination of this Agreement under clause 19.4, as ASICS may
decide in its sole discretion.
10. Customer Insurance
10.1 Customer must maintain, at its own cost, comprehensive insurance policies
for the performance of its obligations under this Agreement, including public
and product liability insurance for no less than $10 million per claim or such
other amount agreed by ASICS in writing.
10.2 Customer must ensure, in relation to each insurance policy instigated
pursuant to clause 10.1 that it is taken out and maintained with a reputable
insurer for the full reinstatement or replacement value; names ASICS as a direct
beneficiary or additional insured party; provides that any failure by Customer
to observe the terms of a policy does not prejudice ASICS and the policy or
policies cannot be cancelled or amended without ASICS written consent during the
Term and for a period of 3 years after the Term.
10.3 ASICS may request Customer to produce written evidence of such insurances
from time to time (including certificates of currency of insurance from the
insurer).
10.4 Customer must inform ASICS in writing immediately it becomes aware of any
actual, threatened or likely claims under any of the insurances referred to in
clause 10.1 that could materially reduce the available limits of indemnity.
10.5 Customer’s insurance obligations under this clause do not limit its
liability under this Agreement.
11. ASICS’ Obligations
11.1 Sales Support
ASICS may conduct training for Customer sales personnel, upon request of the
Customer, at ASICS' then-current fees. The times and locations for any such
training will be agreed by the parties or failing agreement will be reasonably
determined by ASICS.
11.2 Market Development Funds
ASICS may participate with Customer in market development activities and may
provide Customer with marketing funds in its sole discretion. ASICS is not
liable for any marketing expenses incurred by the Customer without its prior
written approval.
12. Title and Passing of Risk
12.1 Subject to clauses 2 and 3.1:
(a) if the Products are collected by the Customer on an EXW basis, risk in the
Products passes to Customer when ASICS places the Products at the disposal of
the Customer at any ASICS premises, or at another place named in the Invoice;
and
(b) if the Products are delivered by ASICS to the Customer on a CIF or CIP
basis, then risk passes to Customer upon delivery of the Products to the
Customer or an agent of Customer at the location named in the corresponding
Invoice.
12.2 Notwithstanding delivery of the Products to Customer, until Customer has
effected full payment for the Products.
(a) legal title to the Products will remain with ASICS;
(b) the relationship between ASICS and the Customer will be fiduciary;
(c) Customer will hold the Products as bailee for ASICS; keep the Products
separate from other products; and label the Products so that they are
identifiable as the products of ASICS.
12.3 Customer is not an agent of ASICS in any permitted sale of the Products by
Customer.
12.4 In the event Customer breaches any term of the Agreement, ASICS may upon
written notice to Customer retake possession of the Products and may without
notice sell the Products on such terms and in such manner as ASICS determines
and ASICS will be entitled to deduct all reasonable expenses incurred.
12.5 For the purposes of recovering possession pursuant to clause 12.4, Customer
irrevocably authorises and licenses ASICS and its servants and agents on receipt
of written notice, to enter any premises where any Products may be stored and to
take possession of the Products.
12.6 Customer will provide all relevant information and assistance reasonably
required by ASICS to ensure ASICS gains access to and takes possession of the
Products in accordance with clauses 12.4 and 12.5.
12.7 Customer may make no claim against ASICS in respect of any entry to its
premises or disposal of the Products pursuant to clauses 12.4 and 12.5, except
where any claim is caused by or contributed to by ASICS’ negligence, default or
other wrongful act or omission.
12.8 If Customer fails to comply with clause 12.2(c), and mixes or converts
Products to other objects whether by the process of manufacture or otherwise and
whether or not such mixture or conversion renders the Products unidentifiable,
ASICS will remain entitled to retake possession of the Products, if possible.
13. PPSA
13.1 Unless otherwise defined in this Agreement, the terms and expressions used
in this clause 13 have the meanings given to them in the Personal Properties
Securities Act 2009 (PPSA).
13.2 The Customer acknowledges and agrees that they grant to ASICS a Security
Interest in the Products, including any Accounts and Accessions, pursuant to
clause 13 of this Agreement.
13.3 The Customer acknowledges that any purchase by the Customer on credit terms
from ASICS, or any retention of title supply pursuant to this Agreement,
constitute a purchase money security interest as defined in the PPSA.
13.4 In consideration for ASICS providing Products to the Customer under these
Terms of Trade and other valuable consideration, the Customer hereby grants to
ASICS:
(a) a Security Interest over all present and after-acquired property to which
the Customer can be a grantor of a security interest under the PPSA, whether or
not the Customer has title in the property including all retention of title
property (as defined in section 51F of the Corporations Act 2001), and including
but not limited to:
(i) all goods and Products previously supplied by ASICS to the Customer, if
any;
(ii) all future Products supplied by ASICS to the Customer, even if ASICS has
not supplied the Products strictly in accordance with these Terms of Trade;
(iii) all Proceeds from the sale of ASICS’ Products;
(iv) any Accounts containing the Proceeds from the Products supplied by ASICS to
the Customer; and
(v) any Accessions containing the whole or part of any Products supplied by
ASICS to the Customer.
(b) a fixed charge over all present and after-acquired property of the Customer
that is not covered by clause 13.4(a) above, including but not limited to:(i)
the Customer’s freehold and/or leasehold interest in land which the Customer now
possesses or may hereafter possess; and(ii) any other property to which the PPSA
does not apply.
13.5 Without limiting clause 13.4 above, all Products supplied by ASICS to the
Customer shall remain the sole and absolute property of ASICS and shall not pass
to the Customer until the Customer has paid to ASICS all money due in respect of
the Products and any other money owing by the Customer to ASICS BUT shall be at
the Customer’s risk from the time of delivery to the Customer in accordance with
clause 12.
13.6 If any of the following events occur:
(a) the Customer has not paid ASICS by the due date for all or any Products
supplied to the Customer by ASICS;
(b) the Customer exceeds any credit limit specified by ASICS from time to time;
(c) execution is to be levied against any of the Products supplied to the
Customer by ASICS; or
(d) the Customer becomes insolvent, is subject to any form of external
administration (whether by a receiver, administrator, liquidator or otherwise),
enters into any arrangement or composition with its creditors, ceases to trade
or is otherwise unable to pay its debts when due, then, to the extent that ASICS
retains title in respect of such goods, ASICS has by itself or by its employees
and/or agents the immediate and unrestricted right to enter the Customer's
premises or any other premises where the Products are reasonably thought to be
stored, without liability for trespass or any resulting damage, other than for
damage caused by ASICS’ negligence, default or other wrongful act or omission,
to examine the goods, conduct a stocktake or re-take possession of the Products
and keep or dispose of them. Other than in respect of ASICS’ negligence, default
or other wrongful act or omission, the Customer shall indemnify ASICS from any
claims made by any third party as a result of such exercise of ASICS’ rights.
13.7 Without limiting clause 13.6 above, after giving 24 hours' notice to the
Customer, ASICS will be entitled (by its employees and/or agents) to enter upon
the Customer’s premises between 9:00 am and 5:00 pm on all days when those
premises would ordinarily be open to the public to inspect its Products, take
stock and verify invoices and delivery dockets.
13.8 The Customer may sell and deliver all Products supplied by ASICS in the
ordinary course of the Customer’s business provided that:
(a) where the Customer has been paid by its consumer(s) for all or any part of
all such Products without ASICS having been paid for them the Customer holds
that part of the proceeds of sale equal to the amount owing to ASICS on trust
for ASICS from the time of receipt of such proceeds; and
(b) where the Customer has not been paid by its consumer(s), and ASICS has not
been paid by the Customer for Products pursuant to these Terms of Trade, the
Customer agrees, at the option of ASICS to be given by notice in writing, to
assign its claim against its consumer(s) to ASICS and to notify such consumer(s)
in writing of such assignment.
The authority granted to sell goods in the ordinary course of the Customer’s
business pursuant to this clause 13.8 is only for sales where immediate payment
is made to the Customer by cash, cheque with cleared funds or credit card.
13.9 ASICS may register on the Personal Property Securities Register any and all
Security Interests granted under these Terms of Trade. The Customer waives any
right it may have to receive from ASICS a copy of any Financing Statement,
Financing Change Statement or Verification Statement registered or received by
ASICS in respect of the Security Interests created under these Terms of Trade.
13.10 The Customer agrees:
(a) that this Agreement is a Security Agreement;
(b) that it has received value as at the date of first delivery of the Products
by ASICS and has not agreed to postpone the time for Attachment of the Security
Interest to the Products supplied;
(c) that the Products supplied by ASICS secure the payment of the purchase Price
of those Products and of any other goods supplied by ASICS with priority to the
maximum extent permitted by law over all other registered or unregistered
Security Interests;
(d) that it will not change its name, ACN or ABN or other details required on
the Personal Property Securities Register, without first notifying ASICS in
writing; and
(e) to do all things reasonably necessary, including executing all documents
that ASICS requires and providing all relevant information and cooperating fully
with ASICS, and at its own expense, to enable ASICS to register a Financing
Statement on the Personal Property Securities Register to ensure that at all
times ASICS has a perfected Security Interest in respect of all Security
Interests created under these Terms of Trade, and wherever possible a Purchase
Money Security Interest.
13.11 The Customer hereby appoints and authorises ASICS as its attorney to sign
in the Customer’s name all documents which ASICS reasonably considers necessary
to enforce or protect its rights and powers under these Terms of Trade and to
protect, preserve and enforce its rights under the PPSA.
13.12 Until the Customer has made full payment for the Products supplied to it
by ASICS, the Customer must not without the prior written consent of ASICS,
grant any other Security Interest in respect of the Products or sale proceeds of
the Products to any third party or permit any lien over the Products or the sale
proceeds of the Products.
13.13 As between debts owed to ASICS secured by Purchase Money Security
Interests and other debts, ASICS will be entitled to apply monies received from
the Customer against the other debts first at its sole discretion and despite
any direction from the Customer to the contrary.
13.14 The Customer agrees that, to the maximum extent permitted by law, sections
95 (to the extent it requires a secured party to give notices to the grantor),
96, 117, 118 (to the extent it requires a secured party to give notices to the
grantor), 120(2), 121(4), 123(2), 123(3), 125, 127(to exercise any right of
priority against ASICS in respect of the Products), 129(2) and (3), 130, 132 (to
receive a statement of account following disposal), 134(2), 135, 137(2) (to
object to any proposal of ASICS to either retain or dispose of the Products),
137(3), 142, 143 and 157 of the PPSA shall not apply to the enforcement by ASICS
of any Security Interest created or provided for by these Terms of Trade.
13.15 The Customer acknowledges that sections 126, 128, and 129(1) of the PPSA,
relating to seizure of goods and disposal of seized goods, apply.
13.16 Unless otherwise agreed and to the maximum extent permitted by the PPSA,
the Customer and ASICS agree not to disclose information of the kind referred to
in section 275(1) of the PPSA to an interested person, or any other person
required by an interested person. Customer waives any right the Customer may
have, or but for this clause may have had, under section 275(7)(c) of the PPSA
to authorise the disclosure of the above information.
14. Product Returns
14.1 Product returns must comply with clause 4 and this clause 14.
14.2 ASICS will only accept the return of Products supplied by ASICS Oceania Pty
Ltd. ASICS will not accept the return of Products supplied to the Customer by
third parties outside the Territory or that were imported by third parties other
than ASICS Oceania Pty Ltd.
14.3 All Product returns require:
(a) A return authority approval number (RA); and
(b) Proof of purchase,
14.4 The RA number must be obtained from ASICS before returning any product to
ASICS. The RA can be obtained by email or by calling the ASICS Claims
department. The ASICS Claims department may request details of the Products to
be returned, including the ASICS Invoice number, the style and colour codes of
the Products and the quantities, before issuing an RA and Customer agrees to
supply the requested details.
14.5 Products returned without an RA are deemed unauthorised returns, and
Customer will be charged a re-stocking fee of 10% of the current Price of the
returned Product.
14.6 Unauthorised returns may be returned to the Customer at the Customer’s
expense.
14.7 Subject to clause 4, in respect of all claims (for short delivery,
non-delivery or incorrect pricing), the Customer must advise ASICS in writing
within ten (10) Business Days from the Invoice date.
14.8 The RA number must be clearly displayed on all cartons returned. No
Product returns can be processed without an RA number.
14.9 All Product returns will be subject to investigation by ASICS. If
ASICS rejects any returned Products, it will give the Customer its reasons in
writing with ASICS' decision as to the validity of the claim being final.
14.10 Faulty goods also require an RA number which can be obtained by email or
phone to the ASICS Claims Manager. All faulty claims are subject to inspection
and approval upon receipt of returned Products by the Claims Manager before any
recompense can be made. All rejected faulty claims will be returned to the
Customer at ASICS’ expense.
14.11 To the extent permitted by law, ASICS will only accept returned Products
that it determines to be faulty within 18 months from date the Product was
supplied to the Customer.
14.12 ASICS will not accept returned Products where ASICS determines that any
fault or other defect has been caused by the Customer, or by Customer or third
party misuse, mishandling or other extraneous cause.
15. Intellectual Property
15.1 ASICS’ Rights
(a) Customer acknowledges that all Intellectual Property in and relating to
ASICS’ Marketing Material and Products remains the property of ASICS, and that
Customer acquires no right, title or interest in or to the Intellectual Property
in or relating to the Marketing Material or to the Products by virtue of this
Agreement, other than the limited licences set out in clauses 15.1(b) and 15.2
below.
(b) ASICS grants Customer a non-exclusive, non-transferable, royalty-free
licence during the Term to use Intellectual Property rights owned by ASICS to
the extent necessary for the sale of Products by Customer in accordance with
this Agreement.
15.2 ASICS’ Trade Marks
(a) During the Term, Customer is authorised by ASICS to use the registered trade
marks of ASICS or its licensee, ASICS Corporation, at no additional charge
solely in connection with the marketing, advertisement, promotion and sale of
the Products in accordance with the terms of this Agreement and in accordance
with any trade mark policies in effect from time to time as supplied by ASICS to
the Customer.
(b) Customer must not sell the Products under any other manufacturer’s name or
trade mark or attach any additional third party trade mark.
(c) Customer must not sell the Products under a superseded ASICS’ trade mark or
the incorrect trade mark for a particular Product (for example, the Onitsuka
trade marks should only be used with ASICS’ Onitsuka products).
(d) Without the prior written approval of ASICS, Customer shall not alter,
modify or change any label or packaging of the Products or add or remove any
ASICS’ trade marks or any other ASICS’ indicia.
(e) Customer agrees not to use or affix any ASICS’ trade mark to any other
product or in connection with any product other than the Product.
(f) All uses of the ASICS’ trade marks shall benefit ASICS. All goodwill from
the use of ASICS’ trade marks shall enure to the benefit of ASICS, and Customer
shall not take any action in derogation of any of ASICS’ rights in its trade
marks and Customer agrees to cooperate with ASICS in facilitating ASICS
monitoring and control of the use of its trade marks, and upon ASICS request,
Customer shall promptly provide ASICS with a copy of all materials in which
Customer uses any of the ASICS’ trade marks.
(g) Any proposed use of the ASICS’ trade marks as store signage, whether inside
or outside the store or otherwise by the Customer is subject to the prior
written approval of ASICS.
15.3 Assignment of Intellectual Property
(a) All modifications, adaptations and improvements to ASICS’ Marketing Material
and Products whether or not permitted, will belong to ASICS upon their creation.
(b) For good and valuable consideration (receipt of which Customer
acknowledges), Customer, its Associated Entities and their officers, employees,
contractors and agents hereby assign all Intellectual Property in the Products
and all modifications, adaptations and improvements to ASICS’ Marketing Material
and the Products to ASICS without restriction or limitation and for no
additional compensation for use (or not to use as ASICS may decide) by all means
in all media in perpetuity and throughout the universe.
(c) Customer will do all things necessary to vest ownership of all such
Intellectual Property rights in ASICS, including the execution of documents by
Customer and its officers, employees, contractors and agents at the reasonable
cost of ASICS.
15.4 Validity of Intellectual Property
Customer must take all steps as ASICS reasonably requires to maintain the
validity and enforceability of the Intellectual Property of ASICS during the
Term.
15.5 Moral rights
To the extent permitted by applicable law, Customer unconditionally and
irrevocably waives and consents and will obtain all other necessary
unconditional and irrevocable waivers and consents from its officers, employees,
contractors and agents of all Moral Rights in the Products and all
modifications, adaptations and improvements to ASICS’ Marketing Material made by
Customer and will not institute, maintain or support any claim or proceeding for
infringement of these Moral Rights and will ensure that none of its officers,
employees, contractors, agents or Associated Entities do so.
15.6 Protection
Customer must not, and must procure that its Associated Entities do not, engage
in any conduct which endangers the capacity of any Intellectual Property of
ASICS to be protected by design, patent, trade mark or other registration, or
threatens the validity of any such registration. The Customer will not reverse
engineer, alter the configuration, reproduce, copy or rebrand the Products in
any way. The Customer acknowledges and will not interfere with the right of
ASICS to seek an injunction to protect its Intellectual Property and other
rights under this Agreement.
16. Warranties and Indemnities
16.1 General Warranties
Each party warrants that:
the execution and delivery of this Agreement has been properly authorised;
(b) it has full corporate power to execute, deliver and perform its obligations
under this Agreement;
(c) this Agreement constitutes a legal, valid and binding agreement and is
enforceable in accordance with its terms by appropriate legal remedy;
(d) this Agreement does not conflict with or result in the breach of or default
under any provision of its constitution, or any material term or provision of
any law or regulation to which it is a party or a subject or by which it is
bound;
(e) there are no actions, claims, proceedings or investigations pending or
threatened against it or by it of which it is aware, and which may have a
material effect on the subject matter of this Agreement;
(f) it will advise the other party if it suffers an Insolvency Event; and
(g) is not entering into this Agreement as trustee of any trust or settlement.
16.2 ASICS warranties
ASICS warrants that:
(a) it has all necessary licences, approvals, permits and consents to enter into
this Agreement and to supply the Products.
(b) it will supply the Products in compliance with all relevant laws,
regulations, standards and codes of conduct.
(c) it has the necessary skills, experience, qualifications, resources,
technology and know-how to supply the Products in accordance with this
Agreement; and
(d) it has not entered into any agreement, arrangement or understanding (whether
or not in writing) that conflicts with its obligations under this Agreement
during the Term or that would render ASICS incapable of satisfactorily
performing its obligations under this Agreement.
16.3 Customer warranties
Customer warrants that:
(a) it has all necessary licences, approvals, permits and consents to enter into
this Agreement and to sell the Products in the Territory;
(b) it will sell the Products in compliance with all relevant laws, regulations,
standards and codes of conduct including advertising codes of practice;
(c) it has the necessary skills, experience, qualifications, resources,
technology and know-how to supply and sell the Products in accordance with this
Agreement; and
(d) it has not entered into any agreement, arrangement or understanding (whether
or not in writing) that conflicts with its obligations under this Agreement
during the Term or that would render Customer incapable of satisfactorily
performing its obligations under this Agreement.
16.4 Disclaimer of Warranty
(a) Except for the express warranties in clauses 16.1 16.2 and 16.3, and to the
extent permitted by law, neither party makes any warranties, express or implied,
statutory or otherwise in connection with the Products. Without limitation to
the foregoing ASICS expressly excludes warranties related to the performance,
quality or fitness for any purpose of the Products.
16.5 Customer’s Indemnity
Customer will at all times indemnify and keep indemnified ASICS and its
Associated Entities, their officers, employees and agents from and against any
Loss they may pay, suffer, incur or sustain arising directly or indirectly from:
(a) any breach by the Customer of any provision of this Agreement;
(b) any wrongful act or omission (including any negligent act or omission) of
the Customer or its Associated Entities, or their officers, employees and
agents; and/or
(c) termination of this Agreement by ASICS exercising its sole discretion under
clauses 19.3 or
19.4; except to the extent any Loss is caused by or contributed to by ASICS’
negligence, default or any other wrongful act or omission.
16.6 ASICS’ Indemnity
ASICS will at all times indemnify and keep indemnified Customer and its
Associated Entities, their officers, employees and agents from and against any
Loss they may pay, suffer, incur or sustain arising directly or indirectly from
termination of this Agreement by Customer exercising its sole discretion under
clauses 19.3.
16.7 Consequential Loss
To the extent permitted by law and subject to clauses 5.8 and 5.9, in no event
shall either party be liable to the other for any Consequential Loss arising
from any provision of this Agreement or the supply and delivery of the Products
even if the other party has been advised of the possibility of such damages. The
above does not limit any rights or remedies that either party has under the
Australian Consumer Law that cannot be excluded by law.
16.8 Limitation of Liability
Notwithstanding any other clause in this Agreement and to the extent permitted
by law, the maximum liability of each party arising out of or relating to this
Agreement both during and after the Term shall be limited to the greater of the
following amounts:
(a) a sum equal to twice the total Price paid by Customer to ASICS in the last
year of the Term prior to the first claim made for compensation by the Customer
under this Agreement; or
(b) the sum of $500,000.
The above does not limit any rights or remedies that either party has under the
Australian Consumer Law that cannot be excluded by law or the right ASICS has to
payment of any amount owing by the Customer for the supply of goods.
17. Confidentiality
17.1 Permitted Use and Disclosure
A party may use Confidential Information of the other party only to the extent
that such use is necessary for compliance with its obligations under this
Agreement.
17.2 Protection of Confidential Information
Subject to clause 17.1 a party must:
* not use, and ensure that its employees, officers, contractors and agents do
not use, any Confidential Information of the other party for any purpose
other than compliance with its obligations under this Agreement;
* take all action necessary to maintain the confidential nature of the
Confidential Information, including keeping all records of the Confidential
Information of the other party under lock and key or password protection;
* not disclose any of the Confidential Information of the other party to any
person other than its employees and officers who have been made aware of the
requirements of this clause; and
* return all documents and other materials in any medium in its possession,
power or control which contain or refer to any Confidential Information of
the other party, on the earlier of demand from that party or the time the
documents and other material are no longer required for compliance with the
party’s obligations under this Agreement.
17.3 Media Release
Customer may not make press or other announcements or media releases in relation
to this Agreement and the matters the subject of this Agreement without the
prior written approval of ASICS.
17.4 Product Release
Customer must not release details of any Product launch dates as notified by
ASICS from time to time or release images or details of any new Products before
such launch dates, including shoe and apparel styles, designs, colours and names
without the prior written approval of ASICS. Without limitation to the foregoing
the Customer must not release before any Product launch date any images or
details of third party branding that may be included on a Product such as the
indicia or Intellectual Property of the Australian Rugby Union, National Rugby
League, Australian Football League or Cricket Australia. For the avoidance of
doubt, the Customer must not use any form of social media to release or disclose
the details of a Product before the Product launch date
17.5 Compliance
A failure to comply with this clause 17 may result in immediate termination of
this Agreement under clause 19.4 and 19.5.
17.6 Confidentiality Agreement
To the extent of any inconsistency between the terms of this clause 17 and any
Confidentiality Agreement, the terms of this Agreement will prevail.
18. Precedence and Inconsistency
18.1 Customer invoices
ASICS is not bound by any term set out in a Customer’s Order, Pre-Order,
purchase order, invoice or other document that seeks to place additional
obligations on ASICS outside of those contained in this Agreement, unless ASICS
has expressly agreed, in writing, to be bound by the additional term.
18.2 Special Conditions
In the event of any inconsistency between any two or more of the following
documents, they shall take precedence over each other in the following
descending order:
(a) The Terms of Trade will prevail to the extent of any inconsistency and take
precedence over each of the other Schedules to this Agreement.
(b) In the event of any inconsistency between the Schedules excluding the Terms
of Trade, the inconsistency will be resolved in favour of the document higher in
the following list:
(i) Schedule 1 - Account Details;
(ii) Schedule 3 - Personal Guarantee;
(iii) Schedule 4 - Internet Policy; and
(iv) any other Schedules to this Agreement.
(c) Clauses 18.2(a) and 18.2(b) will not apply to any Special Conditions in
Schedule 1 - Account Details that expressly state that the Special Conditions
take precedence and override the Terms of Trade, in which case the Special
Conditions will prevail to the extent of any inconsistency with the remaining
provisions of the Agreement.
19. Term and Termination
19.1 Term and Renewal
At the expiration of the Initial Term, this Agreement continues for successive
one (1) year periods unless terminated sooner in accordance with this clause 19
(Term).
19.2 Termination without cause
Subject to clauses 19.3 and 19.4, either party may terminate this Agreement at
any time after the Initial Term, without cause, upon at least twenty (20)
Business Days’ prior written notice.
19.3 Termination for cause
Either party (Affected Party) may immediately terminate this Agreement by
written notice to the other party (Other Party) if the Other Party breaches a
material obligation under the Agreement and, where the breach is capable of
remedy, does not remedy that breach within ten (10) Business Days after the
Affected Party serves written notice on the Other Party requiring the breach to
be remedied. Any breach of an essential term of this Agreement is not capable of
remedy.
19.4 Termination by ASICS
Notwithstanding clause 19.3, ASICS is entitled to terminate this Agreement
immediately with or without notice if:
(a) Customer is subject to an Insolvency Event that is not dismissed or
rectified within five (5) Business days of such event;
(b) Customer intends to or ceases to carry on its business or there is a
material change in the Control of the Customer;
(c) ASICS ceases to supply Products in the Territory;
(d) a Force Majeure Event under clause 20 extends for a period of ten (10)
Business Days or more, whether consecutive days or not;
(e) Customer acts in a way that materially damages the reputation of ASICS;
(f) Customer fails to comply on one or more occasions with its obligations under
any of clauses 8.2, 8.3, 8.4, 8.5, 8.6, 8.7,8.8,8.12 or 8.15;
(g) Customer fails to comply with Clause 9;
(h) Customer supplies false information; or
(i) Customer fails to comply with its confidentiality obligations under clause
17.
19.5 Termination by Customer
Notwithstanding clause 19.3, Customer is entitled to terminate this Agreement
immediately with or without notice if:
(a) ASICS is subject to an Insolvency Event that is not dismissed or rectified
within five (5) Business Days of such event;
(b) ASICS intends to or ceases to carry on its business in the Territory;
(c) ASICS ceases to supply Products in the Territory;
(d) a Force Majeure Event under clause 20 extends for a period of ten (10)
Business Days or more, whether consecutive days or not; or
(e) ASICS fails to comply with its confidentiality obligations under clause 17.
19.6 Consequences of Termination
Termination of this Agreement for any reason does not affect any rights of the
parties accrued prior to termination. Notwithstanding the foregoing sentence,
upon expiry or termination of this Agreement and subject to clause 19.7:
(a) all rights and licences granted to Customer under this Agreement shall
terminate immediately;
(b) ASICS is not obliged to fulfil any outstanding Orders or Pre-Orders for
Products from the Customer existing at the date of expiry or termination and
will refund any payment made for outstanding Orders or Pre-Orders;
(c) Customer shall cease from further marketing and/or selling of the Products
(d) Customer shall immediately cease to use all Intellectual Property of ASICS
including any ASICS’ trade marks and Marketing Materials in connection with the
promotion or advertising of Products including any displays in or outside of the
Customer’s premises;
(e) Customer shall within ten (10) Business Days deliver up to ASICS or destroy,
as required by ASICS (at ASICS’ sole discretion) all copies of ASICS'
Confidential Information and all other written information and material relating
to the Products, including any ASICS’ Marketing Materials in the possession or
under the Control of the Customer; and
(f) ASICS shall within ten (10) Business Days deliver up to Customer or destroy,
as required by Customer (at Customer’s sole discretion) all copies of Customer
Confidential Information held by ASICS.
19.7 Sell Off Period
Unless ASICS terminates this Agreement under clauses 19.3 or 19.4, ASICS will
grant Customer for a period of ninety (90) Business Days (Sell-Off Period) after
termination of this Agreement the right to sell any Product held in stock.
Customer will supply ASICS with an inventory report in a form approved by ASICS
showing all inventory held by Customer at the date of termination. Customer will
forward a further report to ASICS following the Sell-Off Period. During the
Sell-Off Period ASICS grants Customer the limited rights under clauses 15.1(b)
and 15.2 of this Agreement. ASICS reserves the right to buy back all inventory
of Products held by the Customer upon termination and until thirty (30) Business
Days after the Sell-Off Period at a price to be negotiated in good faith and
agreed in writing, which is no more than the Price paid for the Products by the
Customer.
19.8 Survival of Provisions
Termination or expiry of this Agreement will not affect the operation of the
provisions of this Agreement which by their nature survive termination or expiry
of this Agreement including the provisions of clauses 15.3 (Assignment of
Intellectual Property), 16 (Warranties and Indemnities), 17 (Confidentiality),
19.6 (Consequences of Termination) and 19.7 (Sell-Off Period).
20. Force Majeure
Neither party shall be responsible for delays or failure of performance (except
for obligations to make timely payments hereunder) resulting from acts beyond
the reasonable control of such party (Force Majeure Event). A Force Majeure
Event shall include acts of God, strikes, walkouts, riots, acts of war,
epidemics, pandemics (excluding the COVID-19 pandemic), import embargos, failure
of suppliers to perform, governmental regulations, power failures, earthquakes
or other disasters.
21. Notices
21.1 Form of Notice
A notice, approval, consent or other communication in connection with this
Agreement must be in writing sent to the address of the receiving party
appearing in this Agreement or such other address as may be communicated by the
receiving party, marked for the attention of any person nominated for that
purpose by the receiving party (and who in the absence of any such nomination is
the signatory to this Agreement on behalf of the party), and may be sent by
prepaid post (air mail if international), courier, or electronic mail.
21.2 Receipt of Notices
A notice, approval, consent or other communication is taken to have been
received:
(a) in the case of hand delivery, upon written acknowledgment of receipt by an
officer or other duly authorised employee, agent or representative of the
receiving Party;
(b) in the case of posting within New South Wales, three (3) Business Days after
dispatch; and if posted from outside New South Wales, five (5) Business Days
after dispatch;
(c) in the case of email, immediately unless a failure delivery notice is
received by the sending Party and if sent after 5:00pm on a Business Day then at
the commencement of the first Business Day following transmission.
22. General
22.1 Amendment
This Agreement may only be amended by agreement of the parties in writing.
22.2 Sub-Contracting
Customer must not sub-contract any of its obligations under this Agreement to
any third party without the prior written consent of ASICS. The Customer will
remain primarily liable for its obligations under this Agreement if ASICS
approves a sub-contract arrangement.
22.3 No Assignment
Customer may not assign its rights or novate its obligations under this
Agreement without the prior written approval of ASICS. ASICS may assign its
rights or novate its obligations in its sole discretion.
22.4 Approvals
A party may give conditionally or unconditionally or withhold its approval or
consent in its absolute discretion unless this Agreement expressly provides
otherwise.
22.5 No Partnership or Agency
This Agreement does not constitute any party the agent of the other or imply
that the parties intend constituting a partnership, joint venture or other form
of association in which any party may be liable for the acts or omissions of
another. No party has authority to pledge the credit of the other.
22.6 Further Assurances
Each party agrees, at its own expense, on the request of the other party, to do
everything reasonably necessary to give effect to this Agreement and the
transactions contemplated by it, including the execution of documents.
22.7 Costs
Each party is to bear its own costs arising out of the negotiation, preparation,
stamping, execution and (subject to other provisions of this Agreement)
performance of this Agreement.
22.8 Counterparts
This Agreement may be executed in any number of counterparts. All counterparts
taken together will be taken to constitute one agreement. A counterpart may be
executed by electronic means. An executed counterpart may be delivered by
electronic means. This Agreement shall be of no force and effect until the
executed counterparts are exchanged. Either party may request the exchange of
wet ink originals.
22.9 Signatories
The signatories to this Agreement warrant that they have authority to enter into
this Agreement on behalf of the party they represent.
22.10 Governing Law and Jurisdiction
Each party irrevocably:
(a) submits to the non-exclusive jurisdiction of the courts of New South Wales,
and the courts competent to determine appeals from those courts, with respect to
any proceedings which may be brought at any time relating in any way to this
Agreement; and
(b) waives any objection it may have now or in the future to the venue of
proceedings, and any claim it may now or in the future have that any proceedings
have been brought in an inconvenient forum, where that venue falls within
paragraph (a) of this clause.
23. Interpretation Principles
23.1 General Rules
The following rules of interpretation apply unless the context requires
otherwise.
(a) headings are for convenience only and do not affect interpretation.
(b) the singular includes the plural and conversely, and a gender includes all
genders.
(c) a reference to a ‘person’ includes a body corporate, an unincorporated body
or other entity and conversely.
(d) a reference to any party to this Agreement or any other agreement or
document includes the party’s successors and permitted assigns.
(e) an agreement, representation or warranty on the part two or more persons
binds each and all of them and in favour of two or more persons is for the
benefit of each and all of them.
(f) a reference to any agreement or document is to that agreement or document as
amended, novated, supplemented, varied or replaced from time to time, except to
the extent prohibited by this Agreement or that other agreement or document.
(g) a reference to any legislation or to any provision of any legislation
includes any modification or re-enactment of it, any legislative provision
substituted for it an all regulations and statutory instruments issued under it.
(h) a reference to dollars or $ is to Australian currency.
(i) a reference to conduct includes any omission and any statement or
undertaking, whether or not in writing.
(j) where examples of a thing or set of things are given by reference to the
word “including”, the meaning of references to the thing or set of things is not
to be limited by reference to the examples.
(k) this document or any part of it is not so be construed against a party
because that party drafted or proposed it.
(l) where an act is required to be performed or a payment required to be made on
a day that is not a Business Day, the act will be required to be performed or
the payment required to be made on the following Business Day.
(m) expressions used in this Agreement that are defined in the Copyright Act
1968 (Cth) that are not separately defined in this Agreement have the meanings
attributed to them in that Act.
23.2 Severability
The provisions of this Agreement are severable. If any provision is this
Agreement is found or held to be invalid or unenforceable or capable of
termination by a party in any jurisdiction in which this Agreement is performed,
then the meaning of that provision will be construed, to the extent feasible, to
render the provision enforceable. If no feasible interpretation would save such
provision, it is to be severed from the remainder of this Agreement which is to
remain in full force and effect and to be interpreted so as to achieve the
commercial intentions of the parties.
23.3 Vienna Convention
The parties agree that subject to the provisions of this Agreement, the United
Nations Convention on Contracts for the International Sale of Goods adopted at
Vienna, Austria on 10 April 1980 do not apply to the supply of Products under
this Agreement.
SCHEDULE 2 – ASICS’ INTERNET POLICY (November 2023)
This Internet Policy applies to all ASICS Oceania Pty Limited (ASICS) approved
e-retailers subject to the ASICS Retailer Trading Agreement (Agreement).
1. Authorized Domain Name: This authorization is granted by ASICS to Customer
only for each specific web site (or web sites) whose domain name(s) has been
approved in writing by ASICS (Web Site). Customer must not market, advertise or
offer to sell or fulfill orders for ASICS’ Products from any other web site or
Internet location without the prior written consent of ASICS.
2. Web Sites: All Web Sites must use ASICS brand identification and other ASICS
Intellectual Property in accordance with this Internet Policy and the Agreement
and in a manner consistent with the premium brand presentation of ASICS. Web
Sites must use the current ASICS logos, product images, product descriptions and
technical features/specifications consistent with ASICS global approach to
Product sales and marketing (Marketing Material) as provided by ASICS from time
to time and without any alteration.
3. Territory: Customer must only sell ASICS’ Products from the Web Site to
consumers buying in Australia. Customer must neither sell nor ship ASICS’
Products to any address outside of Australia.
4. Product Representation: ASICS’ Products advertised and/or offered for sale
by Customer must be prominently displayed on their Web Sites and Customer must
only use ASICS Marketing Material as provided by ASICS from time to time for
ASICS’ Products. The ASICS territory sales representative will provide the
Customer with authentic and up-to-date ASICS Marketing Material. ASICS’
Products offered for sale on the Web Sites must significantly match the range of
ASICS’ Products offered for sale by the Customer at the Approved Trading Address
for Customer. The Customer is not permitted to selectively advertise certain
ASICS’ Products, such as shoes or particular styles of shoes, to the exclusion
of other Products available at the Approved Trading Address for Customer without
the prior written consent of ASICS. The ASICS Marketing Material used by the
Customer must correspond to the ASICS’ Products offered on the Web Sites.
5. Web Site Standards: A Web Site must meet the following minimum standards
or contain the following elements:
(a) have a clear graphical design, with high quality graphic presentation and
adequate search and navigation capabilities including a finder for ASICS’
Products;
(b) contain all content necessary for the Customer’s consumers to make a
decision to buy, including up-to-date Marketing Material;
(c) to the extent permitted by law, contain a disclaimer advising the Customer’s
consumers that they are purchasing their ASICS’ Products from an ‘Approved
ASICS e-Retailer’ and not directly from ASICS Oceania Pty Limited and that all
conditions of sale such as express warranties, shipping procedures, return
policies and pricing are governed by the terms of trade of the Customer;
(d) provide the consumer with secure transaction forms using encrypted-data
streams or other high standard secure encryption technologies; and
(e) must not promote, sell or display any product, service or material that
could bring the good name of ASICS into disrepute, including the promotion or
sale of counterfeit goods, dangerous or harmful products or services or the
display of restricted, prohibited, offensive or inappropriate content.
6. Customer Services: A high level of service is necessary to maintain the
reputation and competitiveness of ASICS’ Products and its image. Customer must
maintain a commitment to customer service, meeting or exceeding the following
criteria:
(a) on the Web Site’s home page navigation to all customer services must be
easy;
(b) a telephone customer support service must operate during reasonable hours;
(c) customer service representatives must have adequate ASICS’ Product
knowledge; and
(d) establish a procedure, reasonably acceptable to ASICS, for the satisfaction
of customer complaints and the handling of returns in respect of orders through
the Internet.
7. Google Ad Words: Customer may use the ASICS name as a Google ‘Keyword’ for
the purpose of obtaining or bidding on a better ‘Ad Rank’. The terms ‘Keyword’
and ‘Ad Rank’ have the meaning given to them by Google, Inc. and the URL
google.com. Alternate search engines may also be used subject to the prior
written approval of ASICS.
8. Inventory: Each Customer accepts sole responsibility for maintaining adequate
inventory of all ASICS’ Products represented for sale on its Web Site. Customer
should not offer for sale or take orders for any ASICS’ Products that are not
held and fulfilled from its own warehouse without prior written consent by
ASICS.
9. Termination: ASICS reserves the right to terminate the Customer’s
authorisation to resell, market and promote ASICS and its Products via the
Internet upon written notice where the Customer does not comply with the
Agreement and/or this ASICS Internet Policy. Any termination will be conducted
in accordance with clauses 9 and 19 of the Terms of Trade (Schedule 1) of the
Agreement.
10. Agreement Variation: The Customer acknowledges that ASICS may from time to
time amend the terms and conditions of this Internet Policy. ASICS will inform
the Customer of any such changes by email (Notice) and will provide the Customer
with a copy of the updated Internet Policy. If Customer refuses or is unable to
comply with the amended Internet Policy within twenty (20) Business Days of the
receipt of ASICS' Notice then the Customer must immediately cease all Internet
sales of the Products.
SCHEDULE 2 – ASICS’ INTERNET POLICY (November 2023)
This Internet Policy applies to all ASICS Oceania Pty Limited (ASICS) approved
e-retailers subject to the ASICS Retailer Trading Agreement (Agreement).
1. Authorized Domain Name: This authorization is granted by ASICS to Customer
only for each specific web site (or web sites) whose domain name(s) has been
approved in writing by ASICS (Web Site). Customer must not market, advertise or
offer to sell or fulfill orders for ASICS’ Products from any other web site or
Internet location without the prior written consent of ASICS.
2. Web Sites: All Web Sites must use ASICS brand identification and other ASICS
Intellectual Property in accordance with this Internet Policy and the Agreement
and in a manner consistent with the premium brand presentation of ASICS. Web
Sites must use the current ASICS logos, product images, product descriptions and
technical features/specifications consistent with ASICS global approach to
Product sales and marketing (Marketing Material) as provided by ASICS from time
to time and without any alteration.
3. Territory: Customer must only sell ASICS’ Products from the Web Site to
consumers buying in Australia. Customer must neither sell nor ship ASICS’
Products to any address outside of Australia.
4. Product Representation: ASICS’ Products advertised and/or offered for sale
by Customer must be prominently displayed on their Web Sites and Customer must
only use ASICS Marketing Material as provided by ASICS from time to time for
ASICS’ Products. The ASICS territory sales representative will provide the
Customer with authentic and up-to-date ASICS Marketing Material. ASICS’
Products offered for sale on the Web Sites must significantly match the range of
ASICS’ Products offered for sale by the Customer at the Approved Trading Address
for Customer. The Customer is not permitted to selectively advertise certain
ASICS’ Products, such as shoes or particular styles of shoes, to the exclusion
of other Products available at the Approved Trading Address for Customer without
the prior written consent of ASICS. The ASICS Marketing Material used by the
Customer must correspond to the ASICS’ Products offered on the Web Sites.
5. Web Site Standards: A Web Site must meet the following minimum standards
or contain the following elements:
(a) have a clear graphical design, with high quality graphic presentation and
adequate search and navigation capabilities including a finder for ASICS’
Products;
(b) contain all content necessary for the Customer’s consumers to make a
decision to buy, including up-to-date Marketing Material;
(c) to the extent permitted by law, contain a disclaimer advising the Customer’s
consumers that they are purchasing their ASICS’ Products from an ‘Approved
ASICS e-Retailer’ and not directly from ASICS Oceania Pty Limited and that all
conditions of sale such as express warranties, shipping procedures, return
policies and pricing are governed by the terms of trade of the Customer;
(d) provide the consumer with secure transaction forms using encrypted-data
streams or other high standard secure encryption technologies; and
(e) must not promote, sell or display any product, service or material that
could bring the good name of ASICS into disrepute, including the promotion or
sale of counterfeit goods, dangerous or harmful products or services or the
display of restricted, prohibited, offensive or inappropriate content.
6. Customer Services: A high level of service is necessary to maintain the
reputation and competitiveness of ASICS’ Products and its image. Customer must
maintain a commitment to customer service, meeting or exceeding the following
criteria:
(a) on the Web Site’s home page navigation to all customer services must be
easy;
(b) a telephone customer support service must operate during reasonable hours;
(c) customer service representatives must have adequate ASICS’ Product
knowledge; and
(d) establish a procedure, reasonably acceptable to ASICS, for the satisfaction
of customer complaints and the handling of returns in respect of orders through
the Internet.
7. Google Ad Words: Customer may use the ASICS name as a Google ‘Keyword’ for
the purpose of obtaining or bidding on a better ‘Ad Rank’. The terms ‘Keyword’
and ‘Ad Rank’ have the meaning given to them by Google, Inc. and the URL
google.com. Alternate search engines may also be used subject to the prior
written approval of ASICS.
8. Inventory: Each Customer accepts sole responsibility for maintaining adequate
inventory of all ASICS’ Products represented for sale on its Web Site. Customer
should not offer for sale or take orders for any ASICS’ Products that are not
held and fulfilled from its own warehouse without prior written consent by
ASICS.
9. Termination: ASICS reserves the right to terminate the Customer’s
authorisation to resell, market and promote ASICS and its Products via the
Internet upon written notice where the Customer does not comply with the
Agreement and/or this ASICS Internet Policy. Any termination will be conducted
in accordance with clauses 9 and 19 of the Terms of Trade (Schedule 1) of the
Agreement.
10. Agreement Variation: The Customer acknowledges that ASICS may from time to
time amend the terms and conditions of this Internet Policy. ASICS will inform
the Customer of any such changes by email (Notice) and will provide the Customer
with a copy of the updated Internet Policy. If Customer refuses or is unable to
comply with the amended Internet Policy within twenty (20) Business Days of the
receipt of ASICS' Notice then the Customer must immediately cease all Internet
sales of the Products.
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