Distribution Agreement

This agreement is dated:	From the date of submission of the Livid Group Distributor Application
It is made between:	Livid Group Global (“the Manufacturer”)
and	The Distributor, with the respective information provided on the Livid Group Distributor Application (“the Distributor”)

These are the agreed terms:

1. Definitions

These definitions apply unless the context requires a different interpretation:

means all information about the parties to this agreement, including any information which may give a commercially competitive advantage to any other person. It does not include information that it is reasonably necessary to disclose to a customer or other person in the usual course of business so far as that information is disclosed in those circumstances. It includes among other things:

information about staff and their personal contact information, data or information relating to product plans, marketing strategies, finance, operations, customer relationships, customer profiles, sales estimates, business plans, and internal performance results of a party, and the customers, clients and suppliers of any of them;

It includes information about the Intellectual Property and the Know-how.(including all derived terms), means, with respect to the relationship between two or more corporate bodies, the possession, directly or indirectly, of the power to direct the affairs or management of a corporate body, whether through the ownership of voting securities, as trustee or executor, by contract or otherwise, including, without limitation, the ownership, directly or indirectly, of securities having the power to elect a majority of the board of directors or similar body governing the affairs of that corporate body. means a customer of the Distributor who buys the Products. means pre-defined commercial terms published by the International Chamber of Commerce to describe a specific action or situation. “Intellectual Property” means intellectual property owned by us, of every sort, whether or not registered or registrable in any country, including intellectual property of kinds coming into existence after today; and including, among others, patents, trademarks, unregistered marks, designs, copyrights, software, domain names, discoveries, Know-how, creations and inventions, together with all rights which are derived from those rights. means any product offered for sale from time to time by the Manufacturer to the Distributor. means the country of Australia. means the prices at which the Manufacturer sells the Products to the Distributor, as set out in the Livid Group Global Dealer Portal.

2. Interpretation

In this agreement unless the context otherwise requires:

a reference to one gender shall include any or all genders and a reference to the singular may be interpreted where appropriate as a reference to the plural and vice versa.

a reference to a person includes a human individual, a corporate entity and any organisation which is managed or controlled as a unit.

in connection with any benefit given by this agreement, a reference to a party includes reference to its parent company, affiliates and subsidiaries.

a reference to a person includes reference to that person’s successors, legal representatives, permitted assigns and any person to whom rights and obligations are transferred or pass as a result of a merger, division, reconstruction or other re-organisation involving that person.

a reference to a paragraph or schedule is to a paragraph or schedule to this agreement unless the context otherwise requires. The schedules form part of this agreement.

the headings to the paragraphs and schedules (if any) to this agreement are inserted for convenience only and do not affect the interpretation.

any agreement by any party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing

except where stated otherwise, any obligation of any person arising from this agreement may be performed by any other person;

a reference to the knowledge, information, belief or awareness of any person shall be deemed to include the knowledge, information, belief or awareness that person would have if it had made reasonable inquiries.

the words “without limitation” shall be deemed to follow any use of the words “include” or “including” herein.

A reference to an act or regulation includes new law of substantially the same intent as the act or regulation referred to.

all money sums mentioned in this agreement are calculated net of GST, which will be charged when payment is due.

this agreement is made only in the English language. If there is any conflict in meaning between the English language version of this agreement and any version or translation of this agreement in any other language, the English language version shall prevail. If a version of this agreement has been supplied to you in some language other than English, that is a courtesy only and that translated version is of no legal effect.

3. Relationship of parties

Each of the parties warrants that it has the authority to enter into this agreement and has obtained all necessary approvals to do so.

Nothing in this agreement shall create a partnership, franchise or agency or other relationship between any of the parties, other than the contractual relationship expressly provided for in this agreement.

Neither party shall have, nor represent that it has, any authority to make any commitment on the other party’s behalf, except as provided in this agreement

4. Entire agreement

This agreement contains the entire agreement between the parties and supersedes all previous agreements and understandings between the parties.

Each party acknowledges that, in entering into this agreement, it does not rely on any representation, warranty, information or document or other term not forming part of this agreement.

5. Appointment of Distributor

The Manufacturer now appoints the Distributor as its non-exclusive distributor in the Territory for the sale of the Products, and the Distributor now agrees to act in that capacity, subject to the terms and conditions of this agreement.

Subject to this agreement, the Distributor is free to promote and market the Products in any way that it may think fit.

6. Obligations of the Distributor

The Distributor agrees that it will at all times:

use all reasonable efforts to distribute the Products;

maintain full and accurate records of:
1. stock in hand;
2. sales to Customers over last previous seven years;

maintain systems and procedure whereby all used Products returned by Customers are not cleaned or refurbished and re-sold or re-used without the Manufacturer’ prior written consent;

use only advertising and promotional material for the Products which has been approved by the Manufacturer;

comply with all relevant governmental rules and regulations relating to the sale of the Products in the Territory;

make no representations or warranties with respect to the Products other than those specifically authorised in writing by the Manufacturer;

attend, through its employees, training and sales meetings and events as required by the Manufacturer so as to be able to adequately describe, demonstrate and sell the Products;

7. Obligations of the Manufacturer

The Manufacturer warrants that:
1. he has the unrestricted authority to grant the rights and licenses required or contemplated by this agreement;
2. he has all the intellectual property rights that are necessary to market, distribute, and license the Products.

The Manufacturer agrees that it will at all times:
1. provide marketing direction and guidance to the Distributor;
2. name the Distributor and its subsidiaries as an additional, named insured party on the above mentioned insurance policy;
3. provide to the Distributor a reasonable quantity of informational literature, brochures, and other materials;
4. maintain warranty and post-warranty repair services for the Products, appropriate to its applicable warranty policies for them.

8. Distributor’s marketing obligations

The Distributor will use its best endeavours to:
1. promote and sell the Products throughout the Territory;
2. maintain adequate stocks of the Products to meet its Customers’ requirements;
3. comply were all legal requirements from time to time relating to the storage and sale of Products.

9. Distributor’s liaison and reports

The Distributor will provide to the Manufacturer:

estimates of its requirements for the Products for the following (12) twelve month period;

as often as may be appropriate, details of any regulation applicable in the Territory which affects the substance, packaging, description, sale or price of any of the Products.

10. The Price

The Manufacturer will sell the Products to the Distributor at the Prices set out in the Livid Group Global Dealer Portal.

The Manufacturer may increase the Prices at any time upon giving (4) four weeks’ notice to the Distributor. An increase in Prices shall not apply to any order outstanding when the notice was given, or received before the date of expiry of the notice.

The Prices are exclusive of goods and services tax or any other sales tax for which the Distributor is also liable.

11. Orders and acceptance

The Manufacturer reserves the right to reject any order or to cancel any order previously accepted, in writing if, in the Manufacturer’ discretion, it is of the opinion that the Distributor will be unable to make payment as required by this agreement.

If it rejects an order, or cancels an order previously accepted, the Manufacturer shall give to the Distributor prompt written notice of its cancellation.

Nothing said or done by the Manufacturer is acceptance of an order until it has confirmed acceptance in writing, referring to the order. Typically, this will be in delivered as an email conformation.

12. Delivery

Prices are “Free In Store” and accordingly the Manufacturer is responsible for arranging and paying for transport.

If the Distributor asks the Manufacturer to arrange transport and insurance and the Manufacturer does so, it acts as agent for the Distributor, who shall make good to the Manufacturer the full cost expended by the Manufacturer excluding the Manufacturers overhead cost.

The Manufacturer will use its best endeavours to supply the Products to the Distributor within six weeks from receipt of the Distributor’s order to the Manufacturer.

The Manufacturer may from time to time change any specification relating to any of the Products or to the range of Products offered for sale without reference to the Distributor.

Each order from the Distributor to the Manufacturer is a separate contract.

13. Transportation
The Products will be supplied / carried / delivered as follows:

FIS – Free In Store according to the Shipping Address specified for each order. This address will be represented as the default Shipping Address in the Livid Group Global Dealer Portal unless otherwise specified.

14. Payment terms

FIS – Free In Store according to the Shipping Address specified for each order. This address will be represented as the default Shipping Address in the Livid Group Global Dealer Portal unless otherwise specified.

All sums due under this agreement:
1. shall be made in full, without any set-off or counter claim and without deduction of or withholding for any tax now or subsequently imposed by or in any country.
2. shall be paid by the due date, failing which the Manufacturer may charge the Manufacturer interest on late payments on a daily basis at a rate equivalent to 8% above the base lending rate of the Reserve Bank of Australia from time to time;
3. Payments will be made by the Distributor in Australian dollars by direct transfer to the Manufacturer’s bank account as notified to the Distributor.

On request, the Manufacturer will supply details of its bank account so as to enable the Distributor to pay directly via the Internet.

Any sum due under this agreement not expressed in Australian dollars shall be converted into Australian dollars at the official rate of exchange in the Commonwealth of Australia at the close of business on the last day before the payment became due.

Banking charges by the receiving bank on payments to the Manufacturer will be borne by the Manufacturer. All other charges relating to payment in a currency other than Australian dollars will be borne by the Distributor.

The parties shall collaborate to take advantage of any double taxation treaty in force.

Where credit has been agreed in writing between the parties, all invoices shall be paid by the Distributor within the agreed timeframe.

No right of set off shall arise.

15. Payment on running credit account

Payment is due to reach the Manufacturer’s bank account before the last day of the month following delivery of the Products.

On request, the Manufacturer will supply details of its bank account so as to enable the Distributor to pay directly via the Internet.

The Manufacturer’s accounting system will automatically charge interest to the Distributor after the due date, at the rate of 1% per month.

If money remains overdue after one month, the rate charged will be 1.5% per month. You agree that this does not represent a penalty but is a reasonable estimate of the loss incurred by the Manufacturer as a result of not having the money.

16. Risk and retention of title

Ownership of the Products shall not pass to the Distributor until it has paid the Price in full, but the risk in the Products shall be borne by the Distributor from the date of the delivery by the Manufacturer or their agents.

In spite of delivery having been made, property in the Products shall not pass from the Manufacturer until:
1. the Distributor has paid the Price in full; and
2. no other sums whatever shall be due from the Distributor to the Manufacturer.

Until property in the Products passes to the Distributor, it shall hold the Products on a fiduciary basis as bailee for the Manufacturer.

The Distributor must store the Products (at no cost to the Manufacturer) separately from all other Products in the Distributor’s possession and marked in such a way that they are clearly identified as owned by the Manufacturer.

If the Manufacturer asks the Distributor to return Products unpaid and unsold, the Distributor must do so.

If, when asked, the Distributor fails to return the Products, the Manufacturer may enter the Distributor’s premises and repossess the Products.

The Distributor must not pledge or in any way charge by way of security any of the Products owned by the Manufacturer. If the Distributor do so, all money owing to the Manufacturer shall immediately become due and payable.

The Distributor must keep the Products insured to their full value against ‘all risks’ to the reasonable satisfaction of the Manufacturer until sold on by the Distributor.

If, when the Manufacturer asks, the Distributor fails to deliver to the Manufacturer a copy of the Distributor’s insurance policy covering risks to the Products, all money owing by the Distributor to the Manufacturer shall immediately become due and payable.

The Distributor will not move any Products to which this retention of title provision applies to any different place without the consent of the Manufacturer.

17. Products defective or not as ordered

The Manufacturer shall use all reasonable endeavours to ensure that the Products::
1. comply with their description on the order; and
2. are of satisfactory quality and/or fit for their purpose;

Immediately upon taking delivery of any Products, the Distributor shall examine the Products and shall satisfy himself that they comply with the order, are of Manufacturerable quality and in safe, clean and usable condition.

If the Distributor finds any defect in the quality or quantity of the Products, or a failure to comply with the order, it must immediately inform the Manufacturer of that defect. If no notice is received by the Manufacturer within 7 days from the time of delivery, then it shall be presumed that the Distributor has accepted the Products.

If the Distributor claims that the Products were under-delivered or defective, the Distributor will return any damaged Products at its own expense to the Manufacturer.

If the Manufacturer agrees with the shortage or defect, it will top up the order to the correct number and / or will replace the damaged Products at its own cost and refund to the Distributor the cost of returning the Products.

The Manufacturer will repair or replace Products showing a defect in the following circumstances:
1. the defect is reported to the Manufacturer within the warranty period for that particular product, calculated from the date of purchase;
2. the defect results only from faulty design;
3. the Distributor has returned the defective Products or parts to the Manufacturer if it has so requested.

If the Manufacturer agrees that it is liable, it will refund the cost of return carriage and will repair or replace the Products free of charge.

If the Manufacturer repairs or replaces Products, the Distributor has no additional claim against the Manufacturer either under this agreement or by statute or common law, in respect of the defect.

18. Warranty and Service Policy

The Manufacturer now warrants to the Distributor that:

the Products will be of Manufacturerable quality and will comply with the agreed specification;

it is not aware of any rights of any third party in the Territory which would prejudice the promotion or sale of the Products by the Distributor or the use of any of the Intellectual Property.

each Product will be free from defects in performance for its intended use for a period, depending on the product, from the date of its initial sale by the Distributor to the initial Customer.

In the event that the Distributor or Customer finds any Product to be defective, it should call the Distributor’s Customer service and provide full information.

If the Manufacturer accepts the possibility of the Product being defective, it will ask the Distributor to return it to the Manufacturer, at the Distributor’s expense. If the Product proves to be defective, the Manufacturer shall repair or replace it as the Manufacturer shall choose. It shall then return it to the Distributor free of charge.

19. Disclaimers and limitation of liability

The law differs from one country to another. This paragraph applies so far as the applicable law allows.

Conditions, warranties or other terms implied by statute or common law in any country, are excluded from this agreement to the fullest extent permitted by law.

The Manufacturer is not liable to any person in any circumstances if at any time:
1. the Product has been damaged in any way whatever;
2. the Product that has been repaired or serviced by someone not authorised by the Manufacturer to provide that service;
3. the model or serial number of the Product has been altered, tampered with, defaced or removed.

The Manufacturer shall not be liable to the Distributor for any loss or expense which is:
1. indirect or consequential loss; or
2. economic loss or other loss of turnover, profits, business or goodwill even if such loss was reasonably foreseeable or the Manufacturer knew the Distributor might incur it.

This paragraph (and any other paragraph which excludes or restricts the liability of the Manufacturer) applies to the Manufacturer’s directors, officers, employees, subcontractors, agents and affiliated companies as well as to the Manufacturer itself.

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Except in the case of death or personal injury, the total liability of the Manufacturer under this agreement, however it arises, shall not exceed the sum of $10,000. This applies whether the Distributor’s case is based on contract, tort or any other basis in law.

Nothing in this agreement shall be construed as limiting or excluding the liability of the Manufacturer for death or personal injury caused by its negligence.

20. Mutual Indemnities

The Distributor agrees to indemnify the Manufacturer against any loss, damage or liability suffered by the Manufacturer resulting from either a breach of this agreement by the Distributor or from some other event connected with the sale of the Manufacturer’s Products in the Territory, including:
1. any act, neglect or default by the Distributor’s agents, employees, licensees or Customers;
2. the Distributor’s breach of the intellectual property rights of any person;
3. the Distributor’s failure to comply with the law of any part of the Territory;
4. any successful claim by any third party alleging libel or slander in respect of any matter arising from the supply of Products by the Distributor.

This paragraph (and any other paragraph which excludes or restricts the liability of the Manufacturer or provides an indemnity to it) applies to the Manufacturer’s directors, officers, employees, subcontractors, agents and affiliated companies as well as to the Manufacturer.

The Manufacturer agrees to indemnify the Distributor against any loss, damage or liability, suffered by the Distributor and resulting from:
1. any act, neglect or default of the Manufacturer or its agent, employee, licensee or Customer;
2. the proven infringement of the intellectual property rights of any third party;

provided that such liability has not been incurred by the Distributor through any default in carrying out the terms of this agreement.

21. Assignment

Neither party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this agreement without the prior written consent of the other party, except that a party may assign and transfer all its rights and obligations under this agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other party to be bound by the obligations of the assignor under this agreement.

The Distributor shall not be entitled to assign this agreement or any of its rights and obligations under this agreement except by a transfer on terms that the transferee shall undertake with the Manufacturer to perform the obligations of the Manufacturer set out in this agreement.

22. Sale of business or change of Control

Any change of Control of the Distributor whether in contract or by operation of law is a fundamental breach of this contract entitling the Manufacturer to terminate it.

If the Manufacturer terminates the contract on account of a change of Control, the Manufacturer shall have no obligation to accept the return of any goods whatever, and all money due at any time by the Distributor to the Manufacturer shall become due immediately.

The fact that after the change of Control, the Manufacturer may continue to be willing to complete the contract shall not be a relevant consideration.

The Distributor agrees that this provision is fair.

23. Confidential Information

In respect of the Confidential Information of the other, each of the parties now agrees that it will:

1. keep all records of the Confidential Information in all media separate from other records;
2. use its best endeavours to keep confidential any Confidential Information which it may acquire;
3. not store, copy, or use the Confidential Information in any place or in any electronic form which may be accessible to any other person;
4. not use or disclose Confidential Information except to such extent as is necessary for the purposes of this agreement, or with the consent of the other of them;
5. explain to all relevant employees agents and sub-contractors about the provisions of this paragraph and will take appropriate steps to ensure compliance with these provisions by their employees agents and sub-contractors.
6. from today until the expiry of five years from the termination of this agreement, keep the Confidential Information secret and not divulge or make it known to anyone nor use it for the benefit of himself or any other person.

This paragraph does not apply to disclosure:
1. made by order of the court;
2. of information or knowledge which comes into the public domain otherwise than by reason of the default of a party;
3. as may be minimally necessary to give effect to the purposes of this agreement whilst ever the agreement is operational.

The obligations set out in this paragraph shall continue to be fully effective indefinitely even if the Distributor has destroyed or returned the Confidential Information.

24. Intellectual Property

The Manufacturer now authorises the Distributor to use certain Intellectual Property in connection with the promotion, marketing and sale of the Products. The Distributor agrees that it will not:

use the Intellectual Property otherwise than as permitted by this agreement;

Interfere with any of the Products or its packaging;

change or remove any means of identification placed on the Products by the Manufacturer;

use any of the Intellectual Property in any way which might prejudice its distinctiveness or its value;

use any trade mark of its own in connection with the marketing of the Products without the prior written consent of the Manufacturer;

cause or permit anything which may damage or endanger the Intellectual Property or the Manufacturer’s title to it;

within ten years create, write or make any new thing in any medium, which performs a similar function to any item the intellectual property of which is owned by the Manufacturer;

use in its own business, any name or mark similar to or capable of being confused with Livid Lighting Group Australia;

But that it will:

notify the Manufacturer of any suspected infringement of the Intellectual Property;

take such reasonable action as the Manufacturer shall direct at the Manufacturer’s expense in relation to any infringement which may be found or suspected;

mark the Products and their packaging or advertising associated with them as the Manufacturer shall direct;

compensate the Manufacturer for any use by the Distributor of the Intellectual Property otherwise than in accordance with this agreement;

on the expiry or termination of this agreement immediately stop using the Intellectual Property except as expressly authorised by the Manufacturer in writing;

assist the Manufacturer in registering the Trade Mark in any jurisdiction as the Manufacturer may require.

25. Duration and termination

The Distributor acknowledges that the Manufacturer shall be under no obligation to renew or extend this agreement and that it has no expectation or right to the contrary.

This agreement shall continue until terminated:
1. by 3 months’ notice in writing by either party to the other;
2. on 28 days’ notice by the Manufacturer if the Distributor fails to pay any sum due within 28 days of the due date; or
3. immediately by either party if the other commits any material breach of any term of this agreement and which in the case of a breach capable of being remedied is not remedied within 30 days of a written request to remedy it; or
4. immediately by either party if a trustee, receiver, or similar officer is appointed in respect of all or any part of the business or assets of the other party or if a petition is presented or any other step is taken for the winding up of the other party or for the making of an administration or bankruptcy order (otherwise than for the purpose of an amalgamation or reconstruction).

26. Upon termination

Upon termination of this agreement for whatever reason, the terms set out below shall have effect.

The Manufacturer will continue to supply to the Distributor such Products as were ordered by the Distributor before the date of termination.

The Manufacturer may within seven days of the date of termination inform the Distributor that it will re-purchase from the Distributor all or any part of the stocks of the Products held by the Distributor at the date of termination. If it exercises this right the price for the Products shall be the price previously charged by the Manufacturer to the Distributor and the Products shall be returned at the cost and risk of the Manufacturer.

So far as the Manufacturer does not re-purchase the Products, the Distributor may continue to sell them for a period of 12 If it does so, the obligations of the Distributor of as set out in this agreement shall continue in full force and effect so far as they are applicable to the sale of the balance of its stock of the Products.

In any event, within 28 days of the date of termination the Distributor will dispose of or deal with all samples of the Products and all marketing material supplied by the Manufacturer in accordance with the directions of the Manufacturer except that the Distributor may retain such marketing material as is reasonably necessary to enable him to sell the balance of its stock of the Products.

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All Intellectual Property rights and licenses granted to the Distributor in this agreement shall immediately terminate, except that the Distributor may continue to use such rights as are reasonably necessary to enable him to sell the balance of its stock of the Products.

The Distributor shall have no claim against the Manufacturer for compensation for loss of the distribution rights on the termination of this agreement.

All claims or actions that one party has against the other shall remain intact despite termination.

The Distributor will return to the Manufacturer all price lists, catalogues, sales literature, operating and service, advertising literature, operating and other materials relating to the Products.

27. Miscellaneous matters

No amendment or variation to this agreement is valid unless in writing, signed by each of the parties or its authorised representative.

The parties acknowledge and agree that this agreement has been jointly drawn by them and accordingly it should not be construed strictly against either party.

So far as any time, date or period is mentioned in this agreement, time shall be of the essence.

If any term or provision of this agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.

The rights and obligations of the parties set out in this agreement shall pass to any permitted successor in title.

For the purposes of the Privacy Act 1988 each party consents to the processing of its personal data (in manual, electronic or any other form) relevant to this agreement, by the other and/or any agent or third party nominated by that other and bound by a duty of confidentiality. Processing includes but is not limited to obtaining, recording, using and holding data and includes the transfer of data to any country.

Any obligation in this agreement intended to continue to have effect after termination or completion shall so continue.

No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future.

Any communication to be served on either of the parties by the other shall be delivered by hand or sent by first class post or recorded delivery or by e-mail.

It shall be deemed to have been delivered:

if delivered by hand: on the day of delivery;

if sent by post to the correct address: within 72 hours of posting;

If sent by e-mail to the address from which the receiving party has last sent e-mail: within 24 hours if no notice of non-receipt has been received by the sender.

In the event of a dispute between the parties to this agreement, then they undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing arbitration or litigation.

This agreement does not give any right to any third party.

Neither party shall be liable for any failure or delay in performance of this agreement which is caused by circumstances beyond its reasonable control.

In the event of any conflict between any term of this agreement and the provisions of the constitution of a limited Manufacturer or any comparable document intended to regulate any other corporate or collective body, then the terms of this agreement shall prevail.

Each party shall bear its own legal costs and other costs and expenses arising in connection with the negotiation and drafting of this agreement.

This agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is it hereby expressly excluded.

By clicking on the “Submit” button associated with this agreement, you are providing “written acceptance” to Livid Group Global and you are “signing in writing” by / on behalf of the named parties by their representatives who personally accept liability for the proper authorisation by their respective employer or principal to enter into this agreement for, and on behalf of the entity, with respective details and information, provided in the Livid Group Global Dealer Application.

The validity, construction and performance of this agreement shall be governed by the laws of the State of Queensland and the parties agree that any dispute arising from it shall be litigated only in the State of Queensland.