In this Agreement, the expressions "we, "us" and "our" are a reference to Ro2.biz and the expressions "you" and "your" are a reference to the Supplier.
The Supplier wishes to engage the Distributor to distribute the Product(s) during the term of this Agreement on an exclusive basis within the Territory and will:
3.1 Subject to clause 19 and without limiting the generality of any other clause of this Agreement,this Agreement will remain in force from the Commencement Date until the expiry of the Initial Term.
3.2 This Agreement will be extended for a subsequent term of similar duration to the Initial Term, at the distributor's sole discretion, unless terminated by either Party on thirty (30) days' notice prior to the expiry of the Initial Term.
3.3 This Agreement applies in respect of Consumers located within the Territory only.
4.1 The Distributor at its sole discretion has the authority to approve Products for their use on the Site, other websites or other any other distribution medium.
4.2 Without limiting the generality of any other clause of this Agreement, we reserve the right to reject your offer to make the Product(s) available on the Site for any reason.
4.3 Whether you are eligible to enter into this Agreement with the Distributor is at the sole discretion of the Distributor. If we reject your offer to distribute your Product pursuant to the terms and condition of this Agreement, neither of us will be under any further liability to the other arising out of our original offer or our non-acceptance of that offer. We are not required to give reasons for rejecting our offer.
5.1 The Distributor will remunerate the Supplier in the manner specified in Schedule 2 or otherwise as agreed between the Parties.
5.2 You agree and acknowledge that the Remuneration as defined in Schedule 2 is subject to change at the sole discretion of the Distributor.
5.3 In the event that we or a Consumer is prevented or restrained from using the Product for any reason, you agree that you will not be entitled to Remuneration.
5.4 Except to the extent otherwise provided in this Agreement, the Remuneration will be the total amount payable by the Distributor to the Supplier. Without limiting the foregoing, no additional charges will be payable by the Distributor on the account of new or existing or increased government levies or charges including customs duty, GST, sales tax, freight handling, clearing costs or export licences.
5.5 Words defined in the GST Law have the same meaning in this clause, unless the context makes it clear that a different meaning is intended.
During the term of this Agreement the Supplier will:
The Distributor will:
8.1 The Supplier grants the Distributor an exclusive, worldwide, perpetual, irrevocable, royalty free licence to copy and otherwise use the Supplier's Product to the extent necessary to fulfill their respective obligations under this Agreement.
8.2 The Supplier licenses the Distributor to use its Product solely for the purposes of this Agreement and in the manner described in this Agreement. Without limiting the foregoing, the Distributor will not use the Supplier's Product except for the purposes of:
9.1 The Parties agree to collaborate in
uploading the product on the Site, websites
or other distribution mediums that the
9.2 Each Party will act in good faith towards the other Party and use its best endeavours to give the other Party such assistance and co-operation as that other Party reasonably requests.
9.3 The Supplier will provide the Distributor and make available publicly from time to time current information regarding:
10.1 The Supplier warrants that the Product does not infringe the Intellectual Property Rights of any person. The Supplier will fully indemnify the Distributor against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party against the Distributor alleging that the Product infringes any such Intellectual Property Rights.
10.2 The indemnity referred to in subclause 10.1 will be granted whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination.
10.3 The Distributor will notify the Supplier as soon as practicable of any infringement, suspected infringement or alleged infringement by the Product of the Intellectual Property Rights of any person.
10.4 The Supplier indemnifies the Distributor, its directors, officers and employees and the Distributor's successors and assigns against all liability for any infringement of the Moral Rights of any person involved in creating the Product or any component thereof
10.5 If the Indemnified Party has a claim (for example, for misleading or deceptive conduct or for misrepresentation or for a breach of any warranty or for an indemnity or for reimbursement of any expense) under or in connection with this Agreement for a cost on which that Party must pay GST, the claim is for the cost plus all GST (except any GST for which that Party is entitled to an input tax credit).
11.1 In this Agreement, only approved Products by the Distributor may be used;
11.2 The Distributor does not warrant that Products have been reviewed and is not responsible for their use, content, quality or consequences.
11.3 This Distributor, at its sole discretion, has the right to remove, delete or accept use of the Product.
Nothing in this Agreement shall constitute or be deemed to constitute either a partnership between the Parties or the appointment of one Party as agent of the other.
13.1 The Supplier will not, without the prior written approval of the Distributor, disclose the Distributors's Confidential Information.
13.2 However, the Distributor ("recipient") will not breach the Confidentiality of the Supplier in circumstances where the Confidential Information:
13.3 The Supplier will take all reasonable steps to ensure that its employees and agents, and any subcontractors engaged for the purposes of this Agreement, do not make public or disclose the Distributor's Confidential Information.
14.1 During the Restraint Period, neither Party will solicit for employment, either directly or indirectly, any person who is employed or contracted by the other Party.
14.2 A Party will promptly advise the other Party if a person who is employed or contracted by the other Party seeks to be employed or contracted by the firstmentioned Party prior to the expiration of the Restraint Period
15.1 The Supplier warrants the Product does not infringe any Intellectual Property Rights of a third party and that it has the authority to enter into this Agreement with the Distributor.
15.2 The Supplier warrants that the Product is fit for marketing, installation and ordinary use contemplated by or likely to be contemplated by the Distributor or End Users and will perform in accordance with specifications and descriptions.
15.3 The Supplier will promptly rectify or, if necessary, replace the Product, at its own expenses, if it is found to be defective.
15.4 The Supplier warrants that the rectified or replaced Product referred to in subclause 15.4 will be free from defects, will be fit for marketing, installation and the ordinary use contemplated by or likely to be contemplated by the Distributor or End Users, and will perform in accordance with the specifications and descriptions.
15.5 The Supplier will fully indemnify the Distributor against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by any person who has acquired the Product from the Distributor that it is in any way defective or that it is not suitable for the ordinary use contemplated by that person.
16.1 The Supplier releases and indemnifies the Distributor, its servants and agents against all actions, claims and demands (including the cost of defending or settling any action, claim or demand) which may be instituted against the Distributor arising out of a breach of this Agreement by the Supplier or the negligence of the Supplier, its agents, employees or sub-contractors or of any other person for whose acts or omissions the Supplier is vicariously liable.
16.2 The Supplier releases and indemnifies the Distributor against any action, claim or demand by the Supplier's servants, employees or agents or their personal representatives or dependants arising out of the performance of this Agreement.
17.1 Except in relation to liability for personal injury (including sickness and death), the Distributor will be under no liability to the Supplier in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of goods or services supplied pursuant to this Agreement or in respect of a failure or omission on the part of the Distributor to comply with its obligations under this Agreement.
17.2 Subject to subclause 17.3, the Supplier warrants that it has not relied on any representation made by the Distributor which has not been stated expressly in this Agreement, or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by the Distributor.
17.3 The Supplier acknowledges that to the extent the Distributor has made any representation which is not otherwise expressly stated in this Agreement, the Supplier has been provided with an opportunity to independently verify the accuracy of that representation.
17.4 The Supplier will at all times indemnify and hold harmless the Distributor and its officers, employees and agents ("those indemnified" ) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
18.1 Subject to subclause 18.2, any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.
18.2 Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty will be deemed to be included in this Agreement. However, the liability of either Party for any breach of such condition or warranty will be limited, at the option of that Party, to one or more of the following:
19.1 Without limiting the generality of any other clause if this Agreement, the Supplier may terminate this Agreement immediately upon giving the distributor thirty (30) days written notice. Within the thirty (30) days notice period, this Agreement still remains in force.
19.2 The Distributor may terminate this Agreement immediately by notice in writing if:
19.3 If notice of termination is given pursuant to subclause 19.2, the Distributor giving notice may, in addition to terminating the Agreement:
19.4 The Distributor may terminate this Agreement without notice at its sole discretion.
20.2 To extent of any inconsistencies between the Agreements referred to in subclause 20.1, this Agreement will prevail.
21.1 The benefit of this Agreement will not be assigned by the Supplier without the Distributor's written consent.
21.2 A Distributor may consent to the assignment of this Agreement subject to such conditions as it chooses to impose.
22.1 No right under this Agreement will be deemed to be waived except by notice in writing signed by each Party.
22.2 A waiver by a Party pursuant to subclause 22.1 will not prejudice its rights in respect of any subsequent breach of the Agreement by the other Party.
22.3 Subject to subclause 22.1, any failure by a Party to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by that Party to the other Party, will not be construed as a waiver of the firstmentioned Party's rights under this Agreement.
The provisions of the Agreement may be varied, by the Distributor.
24.1 Any dispute arising in connection with this Agreement which cannot be settled by negotiation between the Parties or their representatives may be submitted at the sole discretion of the Distributor to arbitration in accordance with the Rules for the Conduct of Commercial Arbitrations for the time being of the Institute of Arbitrators Australia. During such arbitration, both Parties may at the Distributor sole discretion, be legally represented.
24.2 Prior to referring a matter to arbitration pursuant to subclause 24.1, the Parties will, at the Distributor sole discretion, in good faith explore the prospect of mediation.
24.3 Nothing in this clause will prevent a Party from seeking urgent equitable relief before an appropriate court.
25.1 Subject to any provision to the contrary, this Agreement will enure to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns or receivers but will not enure to the benefit of any other persons.
25.2 The covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of the Agreement will remain in full force and effect following the expiration of the Agreement.
If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement will remain otherwise in full force apart from such provision which will be deemed deleted.
This Agreement will be governed by and construed according to the law of the jurisdiction specified in Schedule 1.
Notices under this Agreement may be delivered by hand, by mail, by email, by message on the Site, by post or by facsimile to the addresses specified in Schedule 1.
29.1 You acknowledge that you have read the complete statement of this Agreement, understand it, and agree to be bound by its terms and conditions.
29.2 You further agree that you have read the Ro2.biz Privacy Statement, the Ro2.biz Website terms of Access Agreement, and Membership Agreement, understand them and agree to be bound by the terms and conditions.
29.3 To return to the Site, click when indicated. By doing so, you acknowledge that you have read, understood and accept the terms and conditions of this Agreement and intend to create a binding legal relationship.
Subject to the Payment Procedure outlined below, Remuneration is calculated as follows:
Unless you choose to close your account with us, payment will occur in the following manner: