Wholesale Terms & Conditions
Last updated: September 2021
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE PLACING YOUR ORDER.
By applying for a wholesale account and/or placing an order for Koala Eco products as a wholesale customer, you accept and agree to be bound by the terms of this Agreement.
For the purposes of this Agreement, “us”, “our”, “we” and “Koala Eco” refers to Koala Eco Company USA Limited and “Stockist”, “you” and “your” refers to the legal entity specified in your Wholesale Account Application Form.
We may modify and update the terms of this Agreement at any time, without notice. You need to ensure you review the terms of this Agreement from time to time.
1.Definitions and interpretation
1.1 In this Agreement, unless the contrary intention appears:
Agreed Premises means the Stockist's trading premises specified in the Wholesale Account Application Form, or such other premises as we approve in writing after the date of this Agreement.
Business Day means a day other than a Saturday or Sunday and that is not a public holiday or a bank holiday in the State of California.
Commencement Date means the date the Stockist places its first order under the terms of this Agreement.
Confidential Information means all data and information, in written, electronic or any other form, belonging or relating to a party, any of its related companies, its or their products, business, business plans, business manuals, affairs, activities, employees, agents, suppliers, customers, customer lists, costs, prices, databases and any other lists, any document item or information marked or otherwise deemed "confidential", and any information which a party has been informed is confidential or which a party might reasonably expect the other party to regard as confidential.
Consumer Law means any applicable state or federal consumer protection law, including but not limited to the California Unfair Competition Law, Consumer Legal Remedies Act, and False Advertising Law, and other state or federal unfair business practices statutes such as the Uniform Deceptive Trade Practices Act.
Displays means fixtures, fittings (including branded installation units) and other promotional materials or signage confirming authorised stockist status, provided by us for the display of the Goods.
Force Majeure means a circumstance beyond the reasonable control of the parties including, but not limited to, acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disasters and acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damages, sabotage and revolution, breakages of machinery and strikes.
Goods means Koala Eco® branded products, together with any other products supplied by or on behalf of Koala Eco which we may expressly permit the Stockist to market and sell from the Agreed Premises from time to time.
Insolvency Event means where the Customer:
(a) becomes insolvent or unable to pay its debts as they become due or acknowledges in writing that it is unable to do so;
(b) makes a general assignment of all or substantially all of its assets for the benefit of its creditors, including to a custodian (as defined in title 11 of the United States Code or the corresponding provisions of any successor laws) appointed for the Customer or all or substantially all of its assets;
(c) files a voluntary petition under any section or chapter of federal bankruptcy law or under any similar law or statute of the United States or any state thereof, including but not limited to bankruptcy proceedings under title 11 of the United States Code or the corresponding provisions of any successor laws);
(d) has any involuntary petition and/or proceedings filed and/or commenced for and/or against it under any section or chapter of federal bankruptcy law or under any similar law or statute of the United States or any state thereof, including but not limited to bankruptcy proceedings under title 11 of the United States Code or the corresponding provisions of any successor laws, and such proceedings are not dismissed within 60 days after they are filed;
(e) is adjudicated as bankrupt or insolvent in proceedings filed under any section or chapter of federal bankruptcy laws or under any similar law or statute of the United States or any state;
(f) goes into receivership or has a receiver, trustee, or other custodian (as defined in title 11 of the United States Code or the corresponding provisions of any successor laws) (permanent or temporary) appointed for it or all or substantially all of its assets or property, or any part thereof, by a court of competent jurisdiction;
(g) has proceedings for a composition with creditors under any state or federal law instituted against it;
(h) is liquidated or dissolved;
(i) if a final judgment remains unsatisfied or of record for thirty (30) days or longer (unless a supersedeas bond is filed);
(j) if execution is levied against its business or property;
(k) if a judicial or non-judicial action to foreclose any lien or mortgage against its premises or equipment is instituted against it and is not dismissed or settled by the earlier of (i) thirty (30) days from commencement or (ii) consummation of such sale;
(l) if its real or personal property shall be sold after levy thereon by any sheriff, marshal, or constable, and/or
(m) being a natural person, dies or files for bankruptcy under any section or chapter of federal bankruptcy law or under any similar law or statute of the United States or any state thereof, including but not limited to title 11 of the United States Code or the corresponding provisions of any successor laws.
Intellectual Property means rights in relation to Confidential Information, Trade Marks, domain names, business names, goodwill and reputation, designs, patents, copyright, processes, methods, inventions, product formulations and all other rights or forms of protection having an equivalent or similar nature or effect whether within or outside the United States, whether registered or unregistered and including all rights of action, powers and benefits of the foregoing.
POS Materials means advertising and sales promotion materials relating to the Goods, including posters, testers, and artwork.
Resale Certificate means a certificate in the form required by the State Tax Department of the State in which the Authorised Premises is located, certifying that the Customer is purchasing the Goods for the purpose of resale.
Term has the meaning given in clause 3.
Trade Marks means signs, trade marks, brand names, rights in the get up or trade dress of any product or packaging, logos, slogans, stylisations and similar rights, whether registered or unregistered.
1.2 In this Agreement, unless the context requires a different meaning:
(a) the clause headings are for ease of reference only and will not be relevant to interpretation;
(b) words in the singular number include the plural and vice versa and words denoting any gender include all genders;
(c) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings
(d) a reference to a person (including a party) includes:
(i) an individual, company, other body corporate, association, partnership, firm, joint venture, trust or government agency; and
(ii) the person's personal representatives, successors, permitted assigns, substitutes, executors and administrators;
(e) references to a statute or a statutory provision are references to the same as from time to time amended, consolidated, modified, extended, re-enacted or replaced; and
(f) a reference to the word "including" or "includes" means "including, but not limited to," or "includes, without limitation".
2. Appointment of Stockist
2.1 Koala Eco appoints the Stockist as a non-exclusive stockist to sell and market the Goods to retail customers from the Agreed Premises on the terms and conditions of this Agreement.
2.2 Koala Eco retains the unrestricted right to enter into agreements with other stockists for the sale of the Goods, and to sell the Goods directly to customers anywhere, at any time, without liability or obligation to the Stockist of any kind.
2.3 Stockist may not appoint sub-agents or sub-distributors to sell and distribute the Goods without our prior written consent.
3.1 This Agreement commences on the Commencement Date and continues until terminated in accordance with the terms of this Agreement.
4. Supply of Goods
4.1 The Stockist shall submit orders for Goods via the www.koalaeco.com website or via email to email@example.com. The Stockist must place orders for Goods to a minimum value of US$200 per order. All orders shall be submitted subject to written acceptance or rejection by us, in whole or in part.
4.2 We may refuse to supply Goods to you if any amount due and payable by you, to us, (under this Agreement or any other agreement) is outstanding or if either party has issued a termination notice under the terms of this Agreement.
Changes to Goods
4.3 We reserve the right absolutely at any time and without notice or incurring any liability to the Stockist to:
(a) discontinue or limit its production of any of the Goods;
(b) terminate or limit deliveries of such discontinued or limited Goods;
(c) discontinue or limit its supply (whether temporarily or permanently) of certain Goods;
(d) alter the design, construction, specifications, features or attributes of any of the Goods; and/or
(e) add new, different, modified and/or extra products or lines of products to the Goods.
4.4 We will organise shipment of the Goods to the Agreed Premises on the following basis, or on such other basis as we may advise in writing from time to time:
(a) for orders under US$250 - the Stockist must pay the delivery costs; and
(b) for orders of US$250 or more – we will pay the delivery costs.
4.5 We will use our reasonable endeavours to make Goods available punctually but will not be responsible for shortage or delays attributable to the unavailability of Goods from its suppliers or other reasons beyond its control.
4.6 We may cancel, or suspend delivery of an accepted order if the Stockist is in breach of its obligations under this Agreement.
4.7 Any claim for non-delivery, shortage in supply or damage occurring during the course of delivery or any claim for rejects must be made by the Stockist within 72 hours of delivery via email to firstname.lastname@example.org. Any Goods returned to without our prior written consent will not be credited.
4.8 If no such claim as described at clause 4.7 is made within 72 hours of delivery, the Stockist shall be deemed to have accepted the Goods as supplied and be deemed to have waived any such claim.
5.Recommended Resale Price
5.1 It is recognised that Koala Eco has certain knowledge in evaluating market conditions, and developing marketing policy, and may recommend the prices at which Goods may be resold by the Stockist, however, Stockist will be free to determine its own selling price for the Goods.
6.1 Unless otherwise agreed, and stipulated by us in writing, the purchase price for the Goods will be as shown on Wholesale section of www.koalaeco.com website current at the time of dispatch of the Goods. Prices are subject to change on 30 days written notice.
6.2 We may in some circumstances, and at our absolute discretion, agree to provide a Stockist with credit terms. Where we have agreed to provide credit terms, the Stockist must pay all invoices relating to Goods ordered and supplied under clause 4, in full, within 30 days of the date of the invoice.
6.3 Payment can be made by credit card or by direct into the bank account of Koala Eco (request details from head office).
6.4 If the Stockist defaults in the payment of any monies due under this Agreement then all monies owing by the Stockist to Koala Eco (whether under this Agreement or any other agreement) immediately become due and payable.
6.5 Koala Eco may charge, and the Stockist must on demand pay, administration fees on any moneys not paid by the Stockist by the due date for payment. The administration fees will be calculated daily at a rate not exceeding 2% per month, from the due date for payment until the date Koala Eco receives payment.
6.6 The Stockist must on demand pay to Koala Eco all expenses, costs or disbursements (including debt collection agency fees and solicitor’s indemnity costs) incurred and paid by us in recovering any monies owing under this Agreement.
7. Stockist obligations
7.1 The Stockist must:
(a)only stock, store, sell and offer for sale, Goods acquired from Koala Eco, and from no other source;
(b)only stock, store, sell and offer for sale for consumption by its retail customers the Goods from the Agreed Premises and no other premises;
(c)use its best efforts to sell and promote the Goods and the Koala Eco brand generally;
(d)conduct its business according to the highest business standards
(e)purchase all Goods launched by Koala Eco from time to time;
(f) range the Goods to be sold as agreed by the Stockist and Koala Eco from time to time;
(g)not sell or offer the Goods for sale outside of the USA or anywhere including within the USA by mail, internet, telephone or other electronic means, without our prior written consent;
(h)not sell or offer the Goods in the grey market and co-operate with Koala Eco in relation to any investigations Koala Eco wishes to make into potential grey market activity including, without limitation, by providing details of the products (both range and volume), dates of sale and identify of customers to whom Goods have been sold by Stockist;
(i) not break up any promotional packs of Goods as provided by Koala Eco;
(j) not sell, or offer for sale, any gifts with purchase, bonus stock, samples or testers, or promotional or advertising material;
(k)maintain sufficient inventory to meet anticipated retail demand and maintain a minimum inventory of 3 units of each SKU stocked at any one time;
(l) use its reasonable endeavours to notify Koala Eco of any potential shortages to ensure that an appropriate range of the Goods is maintained at all times;
(m) store Goods in suitable conditions, and supply only those in good condition;
(n)make clear, in all dealings with customers and prospective customers, that Stockist is acting as a stockist of the Goods, and not as a direct agent for Koala Eco;
(o)act in good faith at all times towards Koala Eco and cooperate with and provide all reasonable assistance to Koala Eco upon Koala Eco's request;
(p)make the business owner, store manager or relevant Koala Eco brand manager available for regular meetings with representatives from Koala Eco at times and dates as determined in the discretion of Koala Eco;
(q)obtain and maintain any and all licences, authorisations and approvals required for it to be able to comply with its obligations under this Agreement;
(r) not engage in false, misleading, deceptive or unfair conduct in accordance with applicable Consumer Law as defined herein;
(s)not directly or indirectly promise, authorize or make any payment to, or otherwise give or authorize the giving of anything of value to, any third party, including any U.S. or foreign government official, in violation of the Foreign Corrupt Practices Act of 1977, as amended (the FCPA), or any other applicable anti-bribery or anti-corruption law;
(t) not engage in conduct that would impose any restraint on trade or competition, including but not limited to entering into agreements with competitors with regard to price fixing, bid rigging, or customer allocation, in violation of federal and state antitrust laws, or any other applicable competition law;
(u)obtain independent legal, accounting and business advice and, if required in order to understand the terms of this Agreement, a translation of this Agreement into another language, prior to entering into this Agreement;
(v)comply fully with any and all applicable laws, regulations and codes of practice; and
(w) comply with all other obligations set out in this Agreement.
7.2 If the Stockist is the trustee of a trust, the Stockist acknowledges that:
(a)this Agreement applies to the Stockist in its individual capacity and as trustee of the trust; and
(b)its own assets and the assets of the trust are available (and are sufficient) to meet its payment obligations under this Agreement.
7.3 The Stockist must immediately notify Koala Eco in writing of any change to the Stockist's details listed on the Wholesale Account Application Form.
7.4 Stockist must not sell, make available for sale or use or other supply Goods that have passed their expiry date marked on the bottom of product packaging. Koala Eco takes no responsibility for Goods and other items not sold or offered by the Stockist by the applicable expiry date. The Stockist must ensure that Goods are rotated appropriately to ensure that Goods close to their relevant expiration date are sold before Goods with a longer shelf life.
7.5 If any customer complaint concerning the Goods is received by the Stockist, the Stockist must:
(a)promptly inform Koala Eco of all the details of the complaint within 5 Business Days of receipt of the complaint;
(b)allow Koala Eco access to any documentation or Goods requested by Koala Eco in order to investigate the complaint; and
(c)cooperate with and provide all reasonable assistance to Koala Eco in dealing with the complaint.
7.6 Any Goods the subject of a customer complaint that are returned to Koala Eco without Koala Eco’s prior written consent will not be credited to the Stockist.
8. Marketing and advertising
8.1 The Stockist must use its best efforts to promote, advertise, market, sell and distribute the Goods to retail customers at the Agreed Premises.
8.2 All advertising and promotional activities by the Stockist must comply with Koala Eco's merchandising, trademark, marketing and communications guidelines and policies, as may be communicated to the Stockist by Koala Eco from time to time.
8.3 The Stockist must maintain the highest standards of presentation of the Goods and services at the Agreed Premises. Koala Eco will notify the Stockist of presentation standards and of any changes to those standards. In order to maintain these standards, the Stockist must (without limitation):
(a)display, within the Agreed Premises, such promotional material as is supplied by Koala Eco in accordance with Koala Eco’s reasonable direction;
(b)only use Koala Eco supplied promotional material to promote Koala Eco products;
(c)comply with merchandising programs including planograms and Display standards imposed by Koala Eco, which may be varied from time to time;
(d)ensure that the Goods and the Koala Eco display are kept clean at all times;
(e)ensure that a minimum of three (3) products of any single line of Goods are displayed when merchandising the Goods at the Agreed Premises;
(f) inform Koala Eco well in advance of special advertising campaigns or other activities proposed by the Stockists that might create unexpected demand for the Goods;
(g)refrain from engaging in any marketing or advertising of a nature which might harm the brand image of Koala Eco;
(h)maintain an environment of high quality which is compatible with the Koala Eco brand image; and
(i) participate in any advertising or sales promotion programs and any customer relationship management programs that may be offered by Koala Eco and on such terms and conditions which may be agreed between Koala Eco and the Stockist.
8.4 The Stockist must not use, display, advertise or promote the Goods or Koala Eco's Intellectual Property via any medium without the prior written consent of Koala Eco. Koala Eco may withhold consent in its absolute discretion. Failure by the Stockist to obtain such approval will entitle Koala Eco, without prejudice to any other rights Koala Eco may have against the Stockist, to terminate this Agreement under clause 16.
8.5 A representative of Koala Eco may enter and view the Agreed Premises and copies of the Stockist's records relating to compliance with this Agreement at any time during the normal business hours of the Stockist to inspect the condition of the Agreed Premises and to monitor compliance with this Agreement. Koala Eco may terminate this Agreement in its absolute discretion if the standard of the Agreed Premises falls below Koala Eco’s brand standards and merchandising guidelines under clause 16.
8.6 The Stockist must not repackage Goods, alter the packaging of Goods, apply anything to the Goods other than prices and the Stockist identification, or market the Goods in altered, defaced, damaged or substituted packaging.
9. POS Materials
9.1 Koala Eco may from time to time provide the Stockist with POS Materials for the sale and promotion of the Goods. The Stockist acknowledges that Koala Eco owns all rights, including copyright and other Intellectual Property rights, in all POS Materials. The Stockist further acknowledges that all POS Materials are and will remain at all times the property of Koala Eco, whether or not the Stockist has made any payment or contribution in respect of them.
9.2 The Stockist must use the POS Materials provided from time to time by Koala Eco in accordance with Koala Eco's directions, except as otherwise expressly agreed by Koala Eco in writing. The Stockist must keep such POS Materials clean, properly maintained, and in good condition and use. The Stockist will use such POS Materials only in conjunction with the sale of the Goods at the Agreed Premises. The Stockist will comply with all instructions and recommendations of Koala Eco regarding the maintenance, use (including the period of time a certain POS Material is to be displayed), location, and removal of POS Materials. The Stockist will not purchase or manufacture its own POS Materials except with Koala Eco's prior written consent.
9.3 The Stockist must only use Koala Eco POS Materials provided by Koala Eco and not provided or produced by another party.
9.4 The Stockist must not sell POS Materials (including testers) or offer POS Material (including testers) as gifts with purchase.
9.5 The Stockist is responsible for obtaining all necessary planning approvals required for external signs. All such plans must be approved by Koala Eco prior to implementation.
9.6 Upon expiry or termination of this Agreement for any reason, the Stockist must immediately cease to use all POS Materials, and shall return all POS Materials to Koala Eco at the Stockist's own cost, or dispose of the POS Materials if directed by Koala Eco in writing.
10.1 Koala Eco may prescribe Displays from time to time. Unless otherwise agreed by Koala Eco in writing:
(a)the Stockist must install and use the amount and type of Displays that may be specified in writing by Koala Eco from time to time and within any time frames that may be notified to the Stockist by Koala Eco; and
(b)where a Display has been prescribed for a specific Good, the Stockist must not display that Good except using the prescribed Display.
10.2 The Stockist must at all times:
(a)keep the Displays clean and in good condition and use;
(b)install and use the Displays only at the Agreed Premises, unless otherwise agreed by Koala Eco in writing;
(c)use the Displays only in conjunction with the sale of the Goods
(d)where Koala Eco specifies that particular Goods or complementary third party products should be displayed on a Display, use the Display only in conjunction with those specified Goods or complementary products; and
(e)comply with all instructions and recommendations of Koala Eco regarding the installation, maintenance, use, location and removal of Displays.
10.3 The Stockist is responsible for making any alterations to the Agreed Premises necessary to accommodate the Displays, and for all associated costs, and must comply with any reasonable directions given by Koala Eco in respect of such alterations.
(a)expiry or termination of this Agreement for any reason either as a whole or in respect of particular Agreed Premise;
(b)a particular Good becoming obsolete or Koala Eco ceasing to supply a particular Good to the Stockist; or
(c)the request of Koala Eco,
the Stockist must cease using such Displays as may be specified by Koala Eco in writing.
10.5 Unless purchased by Stockist, and paid for in full, the Displays will at all times remain the sole and exclusive property of Koala Eco and the Stockist will not obtain any rights in respect of the Displays. Risk in Displays provided by Koala Eco will pass to the Stockist upon delivery by Koala Eco or its agent to the Stockist and from the time of delivery the Stockist:
(a)will bear all risk of loss, theft, damage and destruction of the Displays, except normal wear and tear;
(b)must ensure the Displays for their full insurable or replacement value (whichever is the higher), or such amount as may be notified by Koala Eco in writing from time to time; and
(c)will reimburse Koala Eco for any repairs to or replacement of the Displays or part thereof or for the reduction in value of the Displays in the event that any of them are lost, stolen, damaged or destroyed, excepting normal wear and tear.
11.1 If there is a Koala Eco product recall, the Stockist must:
(a) cooperate fully with Koala Eco and assist with the recall;
(b) give Koala Eco copies of any recall notice or adverse report data; and
(c) comply with any directions from Koala Eco in relation to the Koala Eco product recall, including any directions to minimise damage to Koala Eco's name and reputation generally.
Cost of recall
11.2 If a Koala Eco product recall is related to Koala Eco's fault or negligence, Koala Eco will:
(a) bear any costs of the recall; and
(b) replace, or refund the cost price of, the recalled Koala Eco products to the Stockist, as determined by Koala Eco in its sole discretion.
12. Intellectual property
12.1 The Stockist acknowledges and agrees that all right, title and interest in Koala Eco's Intellectual Property and any other materials supplied to the Stockist under this Agreement are, and will remain, the property of Koala Eco. Under no circumstances will the Stockist acquire any right, title or interest in Koala Eco's Intellectual Property other than the right to sell Goods to retail customers as expressly provided by this Agreement.
12.2 The Stockist must not deal in or offer for sale counterfeit products, products which infringe Koala Eco's Intellectual Property, or products that bear brand names of Koala Eco (or which may be deceptively similar to Koala Eco’s brand names) which have been obtained from any source other than Koala Eco.
12.3 The Stockist acknowledges the exclusive ownership of the Trade Marks by Koala Eco. All uses of Koala Eco's Trade Marks, and all goodwill associated with the Trade Marks, will be to the exclusive benefit of, and/or will belong to, Koala Eco. Koala Eco will have the exclusive right to register the Trade Marks or trade names, or any mark or name closely resembling any of them and, where applicable, to apply for entry or removal as a registered user of them. Both during the Term and thereafter, the Stockist must not:
(a)have or claim any rights in respect of the Trade Marks or otherwise attack the title or any rights of Koala Eco in and to the Trade Marks;
(b)use or register any trade marks or names that are identical or deceptively similar to, or that incorporate, any of Koala Eco's Trade Marks;
(c)use the name "Koala Eco" or any variant of that name, as part of its registered corporate or firm name; or
(d)without the prior written consent of Koala Eco carry on business under any business name containing the name "Koala Eco" or any variant of that name.
12.4 The Stockist acknowledges that Koala Eco is the sole owner of the internet domain names that Koala Eco uses in connection with its business, goods and services. The Stockist must not use the name "Koala Eco", or any variant of that name, as part of its domain name.
12.5 Koala Eco retains the right to specify and approve the quality and standards of all materials on which its Trade Marks are used.
12.6 The Stockist may only advertise, promote, market, sell and distribute the Goods under the name specified by Koala Eco and must comply with any trade mark use guidelines issued by Koala Eco from time to time.
12.7 The Stockist will not obtain any rights in Koala Eco's Trade Marks or other Intellectual Property except as set out in this Agreement. The Stockist must not:
(a)apply for registration of any Intellectual Property owned by Koala Eco, or assist a third party to do so; or
(b)interfere with, or attempt in any manner to prohibit the use or registration of, any Intellectual Property owned by Koala Eco.
12.8 The Stockist agrees that it will not:
(a)infringe, or assist others to infringe, any of Koala Eco's Trade Marks;
(b)copy, alter, modify or in any other way interfere with the Goods or their packaging without the prior written permission of Koala Eco;
(c)use Koala Eco's Trade Marks in any way which might prejudice their distinctiveness or validity or the goodwill of Koala Eco in them; or
(d)use or register any trade marks identical or deceptively similar to, or that incorporate, any of Koala Eco's Trade Marks.
12.9 The Stockist will promptly notify Koala Eco in writing of:
(a)any unauthorised or improper use or infringement of Koala Eco's rights relating to its Trade Marks that the Stockist becomes aware of during the term of this Agreement; and
(b)any claim, demand or suit brought against the Stockist involving its sale of the Goods or use of Koala Eco's Trade Marks.
12.10 Koala Eco will have the sole right to bring and control any claim, demand or suit relating to the improper use or infringement of its Trade Marks, the use of its Trade Marks by the Stockist or the sale of the Goods by the Stockist. The Stockist will take all steps as Koala Eco may reasonably require in connection with any such claim, demand or suit.
13.1 Each party warrants and represents to the other party that:
(a)the execution and delivery of this Agreement has been properly authorised by all necessary corporate action on its part;
(b)it is solvent and has full corporate power and lawful authority and the legal power to execute and deliver this Agreement and to perform or cause to be performed it obligations under this Agreement;
(c)it will perform its obligations under this Agreement with good faith, care and diligence;
(d)it has obtained independent legal, accounting and business advice and, if required in order to understand the terms of this agreement, a translation of this Agreement into another language; and
(e)the entry into this Agreement does not breach any agreement, undertaking or covenant to which it is a party.
13.2 limited warranty
To the full extent permitted by applicable law, except for the express warranties set out in this Agreement, KOALA ECO expressly disclaims all other warranties and conditions of any kind, whether statutory or implied (INCLUDING ANY WARRANTY THAT THE GOODS ARE MERCHANTABLE OR FIT FOR A PARTICULAR PURPOSE), arising from course of conduct or otherwise, regarding any GOODS PROVIDED UNDER THIS AGREEMENT.
Further, any advice, approvals, suggestions or recommendations provided by Koala Eco in respect of the Stockist’s business shall not constitute any assurance, representation or warranty from Koala Eco and it is the responsibility of the Stockist to conduct all appropriate independent reviews and to obtain independent professional advice regarding its business.
14.Liability and indemnity
14.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, KOALA ECO SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY (WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OR FAILURE OF ANY WARRANTY OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU IN CONNECTION WITH THIS AGREEMENT OR ANY GOODS PROVIDED UNDER IT, WHETHER OR NOT KOALA ECO OR ANY REPRESENTATIVE HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH LOSSES ARISING. YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KOALA ECO’S TOTAL LIABILITY IN CONNECTION WITH ANY GOODS PROVIDED UNDER THIS AGREEMENT, OR THE TERMS CONTAINED HEREIN, WILL NOT EXCEED THE REMEDIES PROVIDED IN CLAUSE 14.2 BELOW.
14.2 The liability of Koala Eco to the Stockist for any remedy arising out of the provision of Goods pursuant to this Agreement will be limited, at the option of Koala Eco, to one or more of the following:
(a)if the breach relates to products:
(i) the replacement or the repair of the products, or the supply of equivalent products; or
(ii)the payment of the costs of replacing or repairing the products, or acquiring equivalent products; or
(b)if the breach relates to services, the supply of the services again or the payment of the cost of having the services supplied again.
14.3 The Stockist will indemnify Koala Eco in respect of any and all loss, expenses, damage or liability (including reasonable legal fees), suffered or incurred directly or indirectly by Koala Eco as a result of or relating to any claim, proceeding, action, liability or injury arising out of or relating to:
(a)the Stockist's conduct of its business, including its relations with its customers and other third parties;
(b)any breach of this Agreement by the Stockist (or any of its officers, employees, agents and sub-contractors), or any negligent acts or omissions, of or by the Stockist or any of its officers, employees, agents or sub-contractors;
(c)any unauthorised promise, representation, warranty, act, statement or omission by the Stockist or its officers, employees, agents and sub-contractors;
(d)any unauthorised modifications to the Goods; or
(e)any unauthorised use of Koala Eco's Intellectual Property.
15.1 Each party acknowledges that in the course of performing this Agreement it will receive or otherwise become aware of Confidential Information belonging to the other party. Nothing in this Agreement gives a party any rights in or to the Confidential Information of the other party.
15.2 Each party agrees:
(a)to keep confidential all Confidential Information of the other party and to keep and procure the keeping of all Confidential Information secure and protected against theft, damage loss or unauthorised access;
(b)to disclose Confidential Information of the other party only to those of its officers, employees, agents and sub-contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement, and to procure that such officers, employees, agents and sub-contractors are made aware of and observe the terms of the confidentiality obligations set out in this clause 15;
(c)not to use, disclose, exploit, copy or modify any of the other party's Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the performance of the performance of its rights and obligations under this Agreement; and
(d)to give notice to the other party of any unauthorised disclosure, misuse, theft or other loss of the other party's Confidential Information, whether inadvertent or otherwise, immediately upon becoming aware of the same.
15.3 Upon the earlier of a written request from a party, or the expiration or termination of this Agreement for any reason, the other party will return or destroy, at the first party's option, any and all Confidential Information then in its possession or control and will not retain any copies of the same.
15.4 The terms of this Agreement are confidential to Koala Eco and, save as required by law, regulation or order of a competent authority, may not be disclosed to any third party without Koala Eco's prior written consent other than for the purposes of obtaining legal advice and provided that the confidentiality obligations set out in this clause 15 are observed.
15.5 The terms of and obligations imposed by this clause 15 shall survive termination of this Agreement but shall not apply to any Confidential Information which a party can demonstrate:
(a)is or becomes public other than as a result of a breach of any obligations of confidence;
(b)was lawfully obtained from a third party not under any obligations of confidence;
(c)was already known to that party before its disclosure under this Agreement other than as a result of any breach of any obligations of confidence; or
(d)is required by law, regulation or order of a competent authority to be disclosed by a party, or to a professional adviser of a party, provided that the other party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same and, in the case of disclosure to a professional adviser, provided that such professional adviser undertakes in writing to be bound by obligations of confidentiality of at least as high a standard as those imposed under this clause 15.
16.1 Either party may terminate this Agreement on at least sixty (60) days written notice to the other party.
16.2 Koala Eco may terminate this Agreement at any time immediately (or at a later date nominated by Koala Eco) by written notice to the Stockist if:
(a)the Stockist breaches clause 7.1, 8.4, 8.5, 9.2, 9.3, 9.4, 10.1, 10.2, 12.2, 12.3, 12.4 12.6, 12.8 13 or 15 of this Agreement;
(b)the Stockist breaches any other provision of this Agreement which breach is not capable of remedy, or which breach (if capable of remedy) is not remedied within fourteen (14) days of written notice by Koala Eco requiring the same;
(c)the Stockist voluntarily abandons the business or ceases or threatens to cease to carry on business or in Koala Eco's reasonable opinion becomes for any reason incapable of performing its obligations under this Agreement;
(d)one or more Insolvency Events occur in respect of the Stockist;
(e)the Stockist fails to pay any amount owed to Koala Eco under this Agreement when due;
(f) the Stockist no longer holds a licence that the Stockist must hold to carry on the business;
(g)the Stockist attempts to assign, sell, transfer or subcontract any of the rights or obligations under this Agreement to a third party without the prior written consent of Koala Eco;
(h)the Stockist is convicted or charged with any offence;
(i) the Stockist is fraudulent in connection with the operation of the business; or
(j) the Stockist, in Koala Eco's opinion, has acted or behaved in a manner which may adversely affect the goodwill of Koala Eco or the Koala Eco brand.
Change in control
16.3 The Stockist must notify Koala Eco in writing of any change to its directors or shareholders (or the shareholding percentages). Koala Eco may, in its absolute discretion, terminate this Agreement on receiving such notice.
17.Effect of termination
17.1 Upon termination of this Agreement:
(a)the Stockist will immediately, at Koala Eco's election and at the Stockist's cost, either destroy or return to Koala Eco (subject to clauses 9.6 and 10.4):
(i) all POS Materials, Displays and other promotional materials supplied by Koala Eco; and
(ii)any other materials bearing Koala Eco's Intellectual Property in the Stockist's possession or control;
(b)the Stockist must immediately:
(i) refrain from referring to itself and/or the Agreed Premises as a "Koala Eco stockist" and must cease to use the "Koala Eco" name and Koala Eco's Trade Marks;
(ii)cease all activities relating to the Goods and remove all POS Materials and Displays from areas of the Agreed Premises accessible to the public;
(iii)deliver to Koala Eco all business, technical and other information, including Confidential Information, in the Stockist's possession or control relating to the Goods; and
(iv) comply with any other obligations set out in this Agreement that relate to termination;
(c)Koala Eco may at its discretion, but is not required to, to repurchase or to designate another party to purchase such of the Goods that the Stockist has in its possession and are in saleable condition at 75% of the price that such Goods were originally sold to the Stockist or at Koala Eco's then current list price for such products, whichever is the lesser amount; and
(d)the Stockist will have no claim against Koala Eco for the payment of any damages, compensation or liabilities of any kind whether on account of present or prospective loss of profits or distribution rights, loss of goodwill or any similar loss or for expenditures, investments or commitment or otherwise.
17.2 Any termination of this Agreement will be without prejudice to any other rights or remedies of either party in respect of the breach concerned (if any) or any other breach of the terms of this Agreement.
17.3 Any indemnity or any obligation of confidence under this Agreement is independent and survives termination of this Agreement. Any other term that expressly or by its nature is intended to survive termination of this Agreement shall survive termination of this Agreement, including clauses 6.5, 6.6, 12.8, 14, 15, and this clause 17.
18. Sales Tax
18.1Stockist agrees to provide Koala Eco with a signed Resale Certificate for each Agreed Premises within 7 days of signing this Agreement. If the Resale Certificate is not received within this time frame or current, or is not accepted by the applicable taxing authority or if Koala Eco is otherwise obligated to pay Sales Tax based on Stockist’s sale of Koala Eco products, Sales Tax will be changed on all orders and Stockist agrees to pay all Sales Tax, interest and penalties applicable to the relevant transactions.
19.1 Neither party will be liable to the other to the extent that performance of its obligations under this Agreement (except for an obligation to make a payment) is hindered, delayed or prevented due to Force Majeure provided that each party gives the other party written notice promptly of the occurrence of such Force Majeure and uses its good faith efforts to cure the breach.
19.2 In the event of Force Majeure the time for performance or cure of the breach will be extended for a period equal to the duration of the event of the Force Majeure.
19.3 If the Force Majeure in question prevails for a continuous period in excess of one (1) month, the party whose performance of the Agreement is not hindered, delayed or prevented by the Force Majeure in question will be entitled to immediately terminate this Agreement by written notice to the other, in which case the provisions in clause 17 will apply.
20.1 The Stockist shall at all times when collecting, using, disclosing, transferring, storing or otherwise handling information relating to customers or any other persons comply with the terms of all applicable laws, rules and regulations as amended from time to time, including, without limitation, the California Consumer Privacy Act (CCPA), including by notifying customers that it may disclose such information to Koala Eco and its related companies.
21.1 The parties to this Agreement are independent contractors. The Stockist is responsible for all its own expenses and employees. Nothing in this Agreement constitutes the Stockist as the legal representative, agent, joint venturer, employee or partner of Koala Eco or Koala Eco as fiduciary of the Stockist for any purpose.
21.2 This Agreement may not be amended or supplemented except by a written document executed by all parties.
21.3 The rights and obligations of the Stockist under this Agreement are personal and cannot be assigned, charged or otherwise dealt with, without the prior written consent of Koala Eco.
21.4 This Agreement records the entire Agreement between the parties as to its subject matter. Any prior negotiations, agreements, arrangements, representations and understandings related to the subject matter of this Agreement are superseded by this Agreement.
21.5 The Stockist must promptly execute all documents and do all things that another party reasonably requests to effect, perfect or complete this Agreement and all transactions incidental to it.
21.6 This Agreement is governed by the laws of the State of California. The parties submit to the jurisdiction of the Courts of the State of California.
21.7 Any provision of this Agreement that is invalid, unenforceable or illegal must be read down to the extent necessary to avoid that effect. If that is not possible, that provision must be excluded from this Agreement but only to the extent necessary to avoid that effect. All other provisions of this Agreement continue to be valid and enforceable.
21.8 All notices, consents or approvals by a party under this Agreement will be in writing and will be delivered at the address for the party stated in this Agreement or the Wholesale Account Application Form or such other address designated by a party by notice to the other party, except that Koala Eco may, at its discretion, provide its consent or approval in writing by email to the email address provided by the Stockist.
21.9 A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
21.10 Notice of Agreement to Arbitrate and Class Action Waiver. In the event of any dispute arising under this Agreement, within fourteen (14) days following the receipt of a written notice of such dispute from one party, the parties shall meet, negotiate and attempt, in good faith, to resolve the dispute quickly, informally and inexpensively. If the Parties are unable to resolve a dispute arising hereunder within thirty (30) days of initiating such discussions, or within forty (40) days after notice of the dispute, either party may submit the dispute and any related claims to binding arbitration with the International Centre for Dispute Resolution (“ICDR”) in accordance with its International Arbitration Rules / American Arbitration Association (“AAA”) and Commercial Arbitration Rules. The number of arbitrators shall be one (1). The place of arbitration shall be Los Angeles, California, USA. The language of the arbitration shall be English. The parties shall bear their own fees and expenses.
The award through arbitration shall become final and binding on the Parties, and the Parties agree to waive any right of appeal against the arbitration award. Any judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ARBITRATION SHALL PROCEED SOLELY ON AN INDIVIDUAL BASIS WITHOUT THE RIGHT FOR ANY DISPUTES TO BE ARBITRATED ON A CLASS ACTION BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF OTHERS. The parties agree that this final and binding arbitration on an individual basis will be the sole and exclusive forum and remedy for any and all disputes and claims arising out of or relating to this contract, or the breach thereof, which cannot be resolved informally. The arbitrator shall have no authority to award class-wide relief or to combine or aggregate similar claims or unrelated transactions. Disputes may not be joined or consolidated unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.
21.11 In the event the Class Action Waiver contained herein is deemed unenforceable, then any putative class action may only proceed in a court of competent jurisdiction without a jury and not in arbitration. THE PARTIES AGREE THAT, WHETHER ANY CLAIM IS IN ARBITRATION OR IN COURT, THE PARTIES BOTH WAIVE ANY RIGHT TO A JURY TRIAL INVOLVING ANY CLAIMS OR DISPUTES.