Whereas, 360 TWO Pty Ltd (360 TWO) manufacturers CLICKnRIDE, quick release removable turn signals and associated accessories;
Whereas, Reseller is in the business of reselling motorcycle parts and accessories;
Whereas, 360 TWO desires to engage the Reseller for the purposes of marketing and selling CLICKnRIDE and associated accessories in Australia; and
THE PARTIES THEREFORE BY THIS AGREEMENT AGREE AS FOLLOWS
“Customer” means an end user of a Product.
“Limited Warranty Statement” means 360 TWO’s then-current warranty from 360 TWO to Customers.
“Products” means the products in 360 TWO’s then-current reseller Product List, per the CLICKnRIDE Price Sheet. 360 TWO may add to, delete from, or otherwise modify the Products on the Product List at any time.
“Territory” means United States and Canada.
2. PRODUCT TERMS
2.1 APPOINTMENT. 360 TWO hereby appoints Reseller, and Reseller accepts such appointment, to act as a non-exclusive reseller of Products only to Customers located in the Territory. Sale of Products to other resellers or Reseller’s affiliates is strictly prohibited. Reseller will only sell the Products in face-to-face transactions from physical store outlets located in the Territory, and will not market or sell the Products using any Internet site or mail order catalog without specific written authorization by 360 TWO.
2.2 PRICES. The prices paid by Reseller to 360 TWO for Products shall initially be as set forth in the CLICKnRIDE Price Sheet. 360 TWO shall have the right, at any time, to change, alter, or amend Product prices upon written notice. Prices are exclusive of all taxes, insurance, and shipping and handling charges.
3. ORDERING AND PAYMENT
3.1 ORDERS. We prefer orders to be made via our password protected CLICKnRIDE Online Ordering Form which you will be able to access via the CLICKnRIDE website. Please quote SKU product codes to ensure we ship the correct items. The terms and conditions of each order shall be as provided by this Agreement, and the provisions of either party’s form of purchase order, acknowledgment or other business forms will not apply to any order.
3.2 SHIPMENT. North America order shipments will be from Company warehouse located Jindabyne, NSW 2627, at which time title and risk of loss will pass to Reseller. All freight, insurance and other shipping expenses from Company warehouse, as well as any expenses related to Reseller’s special packing requests, will be borne by Reseller unless otherwise agreed to in writing by 360 TWO. For International Orders, please refer to Price Sheet.
3.3 PAYMENT. Payment on orders and shipping will be due and payable as specified on the Tax Invoice.
3.4 PAYMENT METHODS. We accept Electronic Funds Transfer (EFT). EFT is preferred. Please allow 2 business days for EFT payments to clear. A record of the transaction from your bank is not sufficient to release an order, but may help to shorten delivery time.
4.1 DEFECTIVE PRODUCT RETURNS. Returns of defective Products will be paid for or replaced by 360 TWO. All items must be returned in original condition, including manufacturer packaging and any accessories. Returns will be refused if items arrive used or damaged due to improper packaging. Please ensure returns are carefully packaged. Return shipment charges are the responsibility of Reseller. Incomplete Product returns will be accepted less the value of the missing components as outlined in Component pricing as exhibited in Schedule Two.
4.2 STOCK BALANCES. Upon written approval by 360 TWO, Reseller may return current, undamaged Products which are unopened and in their original packaging and original master packs to 360 TWO for full credit, less any discounts, marketing considerations or credits previously received. All freight charges for stock balanced Product is paid by Reseller.
If all criteria are met, 360 TWO will issue a credit memo to your account. Stock Balance credit memos will be issued for cost of product in the amount of your most recent purchase price or the current selling price, whichever is lower, and can be applied to future purchases.
Eligible Products returned by Reseller to 360 TWO that are not approved in advance will be subject to a 15% handling fee.
5. RESELLER’S OBLIGATIONS
5.3 RESELLER COVENANTS. Reseller will: (i) conduct business in a manner that reflects favorably at all times on Products and the good name, goodwill and reputation of 360 TWO; (ii) avoid deceptive, misleading or unethical practices that are or might be detrimental to 360 TWO or 360 TWO Products; (iii) make no false or misleading representations with regard to 360 TWO or 360 TWO Products; (iv) not publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to 360 TWO or 360 TWO Products; and (v) make no representations, warranties or guarantees to customers or to the trade with respect to the specifications, features or capabilities of 360 TWO Products that are inconsistent with the literature distributed by 360 TWO.
5.4 USE OF TRADEMARKS AND PROPRIETARY NOTICES. During the term of this Agreement, Reseller may use the trademarks, trade names, logos and designations used by 360 TWO for 360 TWO Products solely in connection with Reseller’s advertisement and promotion of 360 TWO Products, in accordance with 360 TWO’s then-current trademark usage policies. Reseller shall not remove or destroy any copyright notices, trademarks or other proprietary markings on the Products, documentation or other materials related to the Products.
6. TERM AND TERMINATION
6.1 TERMINATION WITHOUT CAUSE. Reseller or 360 TWO may terminate this Agreement without cause, at any time, by written notice to the other party not less than thirty (30) days prior to the effective date of termination. All unfilled orders pending at the time of the date of such notice of termination shall be deemed canceled, and 360 TWO and Reseller hereby waive all claims against the other in connection with the cancellation of such orders.
6.2 TERMINATION FOR BREACH. 360 TWO may terminate this Agreement, for cause, by written notice to Reseller not less than ten (10) days prior to the effective date of such notice in the event that: (i) Reseller fails to pay past due invoices within thirty (30) days after notice that invoices are past due; (ii) Reseller violates any other material provision of this Agreement; or (iii) control of Reseller is acquired, directly or indirectly, by a third party, or Reseller is merged with a third party. Upon giving its notice of termination, 360 TWO may alter its terms of sale, including credit terms, and take such other action as may be consistent with the termination of Reseller as an authorized 360 TWO Reseller.
6.3 TERMINATION FOR INSOLVENCY. At the option of 360 TWO or Reseller, this Agreement shall terminate immediately if: (i) a receiver is appointed for the other party or its property; (ii) the other party becomes insolvent or unable to pay its debts as they mature or ceases to pay its debts as they mature in the ordinary course of business, or makes an assignment for the benefit of creditors; (iii) any proceedings are commenced by or for the other party under any bankruptcy, insolvency or debtors’ relief law; (iv) any proceedings are commenced against the other party under any bankruptcy insolvency or debtor’s relief law, and such proceedings have not been vacated or set aside within sixty (60) days from the date of commencement thereof; or (v) the other party commences to dissolve under applicable corporate law statutes.
6.4 TERMINATION/EXPIRATION ACCOUNTING. All amounts payable by Reseller to 360 TWO shall survive termination and become immediately due and payable. In addition, 360 TWO shall have the right to repurchase unsold Products in Reseller’s inventory. Within ten (10) days following termination, Reseller shall furnish 360 TWO with an inventory of unsold Products. Within ten (10) days after receipt of such inventory, 360 TWO shall notify Reseller in writing whether or not 360 TWO intends to repurchase from Reseller all or part of such inventory at the original invoice price (less discounts, price protection or other credits previously granted). 360 TWO shall pay all transportation and other costs connected with shipping such Products to 360 TWO.
7. WARRANTY DISCLAIMER
7.1 CUSTOMER WARRANTY. 360 TWO provides a Limited Warranty Statement to Customers. Reseller will make available to Customers a copy of the Limited Warranty Statement and will not make any representations or statements inconsistent with such Limited Warranty Statement.
7.2 EXPRESS DISCLAIMER. 360 TWO MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE PRODUCTS, EXCEPT AS SET FORTH ABOVE. ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, ARE HEREBY DISCLAIMED.
8. LIMITATION OF LIABILITY
THE LIABILITY OF 360 TWO AND ITS SUPPLIERS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUPPLY OF Products HEREUNDER, SHALL BE LIMITED TO THE ACTUAL AMOUNTS PAID BY RESELLER TO 360 TWO FOR THE Products GIVING RISE TO SUCH DAMAGES, AND SHALL IN NO EVENT INCLUDE LOSS OF PROFITS, COST OF PROCURING SUBSTITUTE GOODS OR SERVICES, OR ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF 360 TWO OR ITS SUPPLIER IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
9.1 ASSIGNMENT. Neither party may assign, delegate, or transfer the Agreement, or any of its rights or duties hereunder, without the prior written consent of the other party. Any attempted assignment or delegation in violation of this section shall be void. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns. Notwithstanding the foregoing, 360 TWO may assign its rights and duties hereunder in connection with a merger, consolidation, spin-off, corporate reorganization, acquisition, or sale of all or substantially all the assets of 360 TWO.
9.2 GOVERNING LAW. This Agreement shall be governed by the laws of the State of New South Wales.
9.3 INDEPENDENT CONTRACTORS. In performing their respective duties under this Agreement, each of the parties will be operating as an independent contractor. Nothing contained herein will in any way constitute any association, partnership, or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the power to bind the other party or incur obligations on the other party’s behalf without the other party’s prior written consent.
9.4 MODIFICATION AND WAIVER. No modification to this Agreement, nor any waiver of any rights, will be effective unless assented to in writing by the party to be charged, and the waiver of any breach or default shall not constitute a waiver of any other right hereunder or any subsequent breach or default.
9.5 NOTICES. Any required or permitted notices hereunder must be given in writing at the address of each party, or to such other address as either party may substitute by written notice to the other in the manner contemplated herein, by one of the following methods: hand delivery; registered, express, or certified mail, return receipt requested, postage prepaid; nationally-recognised private express courier. Notices will be deemed given on the date received.
9.6 SEVERABILITY. If for any reason any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
9.7 LIMITATION OF ACTION. Any legal action arising out of this Agreement shall be barred unless commenced within one (1) year of the act or omission giving rise to the action. Such limitation shall not apply to any actions asserted against Reseller by 360 TWO arising from any delinquencies in payment for Products
9.8 ENTIRE AGREEMENT. This Agreement and the exhibits attached hereto constitute the entire and exclusive agreement between the parties hereto with respect to the subject matter hereof and supersede any prior agreements between the parties with respect to such subject matter.