Reseller Agreement

AGREEMENT

BETWEEN

Biological Control Systems Pty Ltd

AND

Reseller

SCHEDULE

RECITALS:

1. The Supplier is involved in the manufacture, sale and Reseller of the Products throughout the Area.
2. The Reseller has requested that the Supplier grant it rights to distribute the Product within the Territory.
3. The Supplier has agreed to grant the Reseller the right to distribute the Product in accordance with the terms and conditions outlined in this agreement.

NOW IT IS AGREED AS FOLLOWS:

1.       INTERPRETATION

1.1     In this Agreement unless the context otherwise requires:-

(a)     Words importing the singular shall (where appropriate) mean and include the plural and vice versa.

(b)     Words importing one gender shall (where appropriate) mean and include the other genders and the neuter and vice versa.

(c)     Words importing natural persons shall (where appropriate) mean and include corporations and unincorporated associations and vice versa.

(d)     The headings are for convenience of reference only and shall not be construed as affecting the meaning or interpretation of this Agreement.

(e)     References to any statutory enactment or law shall mean or be constructed as references to that enactment or law as amended or modified or re-enacted from time to time and to the corresponding provisions of any similar enactment or law of any other relevant jurisdiction.

(f)      All references in this Agreement to sections, articles, clauses, sub-clauses, paragraphs and schedules, shall mean and be construed as references to these sections, articles, clauses, sub-clauses, paragraphs and schedules of or to this Agreement unless otherwise stated.

(g)     The obligations and liabilities imposed and the rights and benefits conferred upon the parties to this agreement, shall be binding upon and inure in favour of each of the parties successors in title, legal personal representatives and permitted assigns.

(h)     Any obligation, covenant or liability arising from this Agreement where a party consists of more than one person, binds each of those persons jointly and severally.

(i)      Any reference to a guarantee or an indemnity, shall mean a continuing guarantee or indemnity not merging upon any settlement or contemplated settlement or other determination of this agreement.

(j)      Any person who is a party to this agreement in more than one capacity, shall be deemed to execute and be bound by this agreement in all of those capacities.

(k)     Any reference to dollars, shall be a reference to dollars in Australian currency.

(l)      Any reference to any time, shall be a reference to the time in the state or part of a state in which this agreement is signed.

2.       APPOINTMENT

1.2     The Reseller is appointed Reseller by the Supplier and granted Reseller rights during the Term of this Agreement:-

(a)     to sell and distribute the Product in the Territory;

(b)     to use any trade secrets provided by the Supplier relating to the Product; and

(c)     to engage and to appoint others to sell the Product in the Territory.

1.3     No right or licence is granted to the Reseller to be exercised outside the Territory except with the prior express written consent of the Supplier.

3.       EXCLUSIVITY

1.4     This clause 3 shall apply if the Reseller Rights are exclusive rights as indicated in Item 4 of the Schedule.

1.5     During the Term of this Agreement, the Supplier agrees that it shall:-

(a)     not appoint any other person as a Reseller of the Product in the Territory;

(b)     attempt, to the extent permitted by the laws of the Commonwealth of Australia, to prevent the sale of the Products in the Territory except by or through the Reseller;

(c)     take all reasonable steps to ensure that no other person competes with the Reseller for Reseller of the Products within the Territory;

(d)     ensure that no other persons associated with the Supplier shall appoint any other person as Reseller of the Products in the Territory.

4.       ACCEPTANCE OF APPOINTMENT AND TERM OF APPOINTMENT

1.6     The Reseller :-

(a)     accepts appointment as Reseller of the Product within the Territory for the Term of this Agreement;

(b)     agrees not to sell or install the Product outside of the Territory;

(c)     agrees to ensure that any person appointed by it to sell the Products, shall not sell or install the Products outside of the Territory.

1.7     This Agreement shall commence on the Start Date and shall continue during the Term.

1.8     If a new agreement is not executed at the end of the Term, then this agreement will continue upon the same terms and conditions until terminated by either party by giving not less than one month’s prior written notice at any time to the other.

5.       TERMS OF SALE OF THE PRODUCTS TO THE RESELLER

1.9     All orders for any Products placed by the Reseller are subject to acceptance by the Supplier.

1.10   Except as otherwise agreed by the Supplier in writing, this agreement shall control all aspects of the dealings between the parties with respect to the Supplier’s Products. Any order from the Reseller stipulating additional or different terms or conditions, will be rejected, unless the parties agree in writing to that effect in advance of shipment.

6.       ORDER OF PRODUCT BY THE RESELLER

1.11   The Reseller will, from time to time, order the Product by submitting a signed formal purchase order given to the Supplier.

1.12   The Reseller's order shall specify:-

(a)     the Product/s that the Reseller desires to purchase;

(b)     any variations to the standard products requested in terms of installation of any equipment over and above that which is normally supplied by the Supplier; and

(c)     the quantities of each product that the Reseller desires to purchase.

1.13   No alteration may be made to an order given under clause 6.1, unless otherwise agreed to in writing by the Supplier.

1.14   On receiving the ordered goods, the Reseller has the right to sell the products by wholesale or retail within the Territory, provided that the Supplier's name and logo is promoted in association with the sale of the Products by any means approved by the Supplier from time to time.

7.       DELIVERY

1.15   Upon receipt of a purchase order from the Reseller, the Supplier shall arrange for the supply and delivery of the Products to the Reseller, to the address stated in the reseller form.

1.16   The Reseller agrees to bear all transportation and other costs arising out of the delivery of the Products.

1.17   The Reseller will:-

(a)     visually inspect the Products upon delivery and will promptly advise the Supplier of any damage to the Products or any matter that, in the opinion of the Reseller, causes the Products to be not of merchantable quality;

(b)     provide written details of any such damage or matter, including evidence, if appropriate, by notice to the Supplier not later than fourteen (14) days after the Products are delivered to the Reseller; and

(c)     arrange for the return of such Products to the Supplier at the Supplier’s expense;

If no notice is given to the Supplier under this clause, the products will be deemed fit for purpose and of merchantable quality and delivered in accordance with the Supplier’s obligations under this agreement.

1.18   The Supplier will do all things commercially reasonable to replace any defective Products as soon as possible. If a visual inspection of the Product fails to identify any relevant defect and the Reseller later becomes aware of such defect, then it must notify the Supplier of the defect as soon as reasonably possible.

8.       PRICE

1.19   The price of the Products sold to the Reseller by the Supplier shall be the price agreed at Item 7 of the Schedule or such other price as may be specified by the Supplier in writing from time to time.  All prices agreed will be quoted as "ex-factory" and shall not exclude all insurance and transport costs.

1.20   The Supplier may change its pricing at any time by giving sixty (60) days prior written notice to the Reseller.

1.21   Money payable to the Supplier pursuant to sub-clause 8.1 shall be paid by the Reseller free and clear of any withholding or set off.

1.22   The Reseller is responsible for all freight, insurance, taxes, excises, duties, tariffs and other charges payable with respect to the delivery of the Products to the Reseller from the Supplier’s factory, whether or not delivery is made to the Reseller or to a third party at the Reseller's request.

9.       PAYMENT METHOD

1.23   The Reseller agrees to pay all costs and charges:-

(a)     on a “Prepaid off the website” basis; or Prepaid by other means.

(b)     subject to the prior written consent of the Supplier, within [30 / 60] days from the date the of Supplier’s tax invoice, including delivery from the Supplier’s plant or warehouse location and any associated costs and taxes.  Payment shall be made as specified on the invoice.

1.24   If the value of any Order exceeds $10,000.00 the Supplier may require the Reseller to secure the Order by providing a ninety (90) day revolving irrevocable letter of credit in favour of the Supplier and issued by an Australian Bank reasonably acceptable to the Supplier.  In such circumstances, the Supplier is only obliged to fulfil that Order if the said letter of credit is provided.

10.     RISK OF LOSS OR DAMAGE

1.25   The risk of loss, due to damage, destruction or other incidence resulting in loss, of or to items ordered by the Reseller, will pass to the Reseller when the items have been handed over to the transport provider by the Supplier for delivery to the Reseller.

1.26   The Supplier shall select the transport provider for the delivery of ordered Products unless otherwise agreed.

11.     WHEN TITLE TO GOODS PASSES TO THE RESELLER

1.27   Title to the Products comprised in an order, will not pass to the Reseller until the Supplier has received payment in full. Until that time, the Reseller shall hold the Products as fiduciary for the Supplier.

1.28   The Reseller shall store the products separately so as to be readily identifiable as the Product and property of the Supplier.  The Reseller shall have the authority to on-sell the products to third parties in the ordinary course of its business.

12.     DEFAULT AND REPOSSESSION

1.29   The Reseller acknowledges and agrees that the Supplier, its agent or representative of the Supplier, is empowered to enter any premises of the Reseller or of any other person where the Products are stored in the event of any default in payment and to re-take possession of the Products.

13.     CONFIRMATION OF PURCHASE MONEY SECURITY INTEREST

1.30   The Supplier hereby reserves a Purchase Money Security Interest in each unit of Product sold and/or delivered to the Reseller, now or in the future and in the proceeds thereof, if the Reseller sells or leases a unit(s) to another party prior to the Reseller paying the Supplier the purchase price and associated costs in accordance with these terms and conditions.  These interests will be satisfied by payment in full of the purchase price and all associated costs of the goods.

1.31   A copy of this agreement may be registered on the Personal Properties and Securities Register at any time before or after the signature by the Client to perfect the Supplier’s security interest.

1.32   On the request of the Supplier, the Reseller shall sign any forms or documents the Supplier shall require to perfect a purchase money security interest.

1.33   The Reseller will not enter into any security agreement that gives any other person a security interest in goods supplied to the Reseller or any proceeds from the sale of the goods, until the Supplier has perfected its purchase money security interest.

14.     RESELLERS REPORTING OBLIGATIONS

1.34   The Reseller agrees to submit to the Supplier, a report within seven (7) days following the last day of each calendar quarter during the term of this agreement and a final report within seven (7) days after termination of this agreement (if this agreement is terminated for any reason whatsoever), listing the amount of each Product used or sold by the Reseller in the preceding calendar quarter.

The Reseller agrees to forward information for each sale detailing the customer’s name, phone number and email address, the product details and quantities purchased within 24 hours of each sale.

The Reseller agrees to forward a list of all events forward booked within 24 hours of the booking and such events are to include shopping centres, markets, agricultural shows expos and any gathering of people where the Reseller intends to promote and/or sell the products.

The Reseller agrees not to promote and/or sell the products at events including shopping centres, markets, agricultural shows expos and any gathering of people where the Supplier or his nominated agents or staff or Resellers are also attending.

15.     ADVERTISING AND PROMOTION

1.34   The Reseller shall use its best endeavours to market and promote the sale of the Products throughout the Territory and to maximise sales of the Products within the Territory by diligent sales efforts and advertising and by establishing sales teams and technical staff.  [Amend this clause as necessary re sales teams and technical staff.]

1.35   The Reseller shall not publish or distribute any advertising or promotional material in relation to the products, unless it has obtained the Supplier's prior written consent to the material being published or distributed. The Reseller and the staff of the Reseller shall not make any claims related to  health claims, therapeutic claims or diagnosis claims in relation to the products and the statements on the Suppliers product websites shall be regarded as authorative and definitive regarding what the Reseller and his staff are permitted to say or write regarding the products..

Unless otherwise agreed by the Supplier in writing, costs incurred in the preparation of promotional material pursuant to this clause shall be borne by the Reseller.

1.36   The Supplier agrees not to undertake any form of advertising or promotions that may be subject to the Reseller contributing to the costs of such advertising or promotion, without the prior written consent of the Reseller.

1.37   The Reseller can spend whatever amount on advertising the Products in the Territory during each year of this agreement.

1. 38 The Reseller may request copies of advertising materials used to promote the sale of the Products in the Territory from the Supplier. The Reseller will pay the Supplier’s reasonable costs associated with complying with this request.

1.39   The Reseller agrees to contribute reasonably to any advertising costs the Supplier may undertake in the Territory on such terms and in such amounts as may be mutually agreed between the parties.

16.     WARRANTIES, POINT OF SALE and AFTER SALES SERVICE AND TECHNICAL SUPPORT

[Edit / Delete as necessary to reflect your own arrangement.]

1.40   Upon the sale of any of the Products, for the purposes of the Supplier maintaining ongoing records as to its obligations to customers under warranty and otherwise, the Reseller shall notify the Supplier of the name, address and contact telephone number and other details of the customers to whom the Products have been sold and where same have been installed.

1.41   The Reseller shall provide an after sales service for customers in relation to the Products to the Manufacturer’s reasonable satisfaction.

1.42   The Supplier agrees to provide the Reseller with technical support and product information when reasonably requested by the Reseller, to assist in the promotion and sale the Products within the Territory.

This shall include the instruction sheet for the products supplied electronically by the Supplier and to be printed and supplied in hard copy form to each  customer at the point of sale.

It shall also include a Reseller recruitment promotional flier supplied electronically by the Supplier and printed in hard copy by the Reseller and supplied to every customer at the point of sale.

1.43   The Reseller will give each third party or purchaser full instructions on the care, maintenance and operation of the product sold by it.  It further warrants that it shall provide a warranty card statement as supplied by the Supplier from the Supplier’s website relating to the product, to any Purchaser and shall in prompt manner forward any such completed warranty cards to the Supplier.

1.44  Notwithstanding the official refund policies of the Supplier on the product websites, the Reseller is to maintain the Supplier’s internal company policy of supplying a full refund to any customer who requests a refund.

1.45        No guarantees of weight loss shall be provided by the Reseller to people or entities to which it sells. No “green books” relating to weight loss or mention of The John Charlick Method For Weight Loss as defined by www.thecharlickmethod.com are permitted to be used by the Reseller in the process of selling and promoting the products and if any customer of the Reseller claims any sum of money or damages in the relation to non delivery of weight loss, then it will be assumed that the Reseller has breached this clause and has promoted the product for weight loss and the Reseller shall be liable for any such claims and shall pay them promptly. The abovementioned “green books” are not part of the product MetaBuz Turmeric Chai Tea.

17.     INTELLECTUAL PROPERTY

1.46   The Reseller is granted a Licence, of the scope stipulated at Item 10, to use the Trademarks described in Item 11, in the Territory, to the extent necessary to exercise the Reseller’s rights as set out in this Agreement.

1.47   The Reseller acknowledges that the Trademarks are, and shall remain, the property of the Supplier.

1.48   The Reseller will immediately upon execution of this Agreement arrange for the placing of a sign upon its customer entrance, in a place obvious to the public, stating its name and its trading name. That includes events and gatherings of people where the products are promoted and or sold. Each sale shall be accompanied by a business card of the Reseller clearly stating that the Reseller is the point of contact.

1.49   The Reseller agrees to use the Trademarks in the advertising, promotion and the sale of the Products in the manner directed by the Supplier.

1.50   The Reseller shall immediately cease to use the Trademarks upon termination of this Agreement or upon notice in writing given by the Supplier.

1.51   The Reseller shall forthwith cease to distribute or publish any advertising or promotional material using any of the Trademarks upon termination of this agreement.

1.52   The Reseller acknowledges and agrees that any additional goodwill generated in connection with the Trademarks, as a direct or indirect result of the use of the Trademarks by the Reseller, will accrue to the benefit of the Supplier alone.

1.53   The Reseller shall give the Supplier notice in writing of any infringement or alleged infringement in relation to any of the Supplier's intellectual property or Trademarks as soon as the Reseller becomes aware of such a situation.

18.     OBLIGATIONS OF THE RESELLER AND SUPPLIER

1.54   The Reseller shall in all its dealings in connection with or pursuant to this Agreement, give proper consideration and weight to the interests of the Supplier and will conduct its business in a manner that will reflect favourably on the Supplier and the Products.

[Note:  clause 19.2(b), below, restricts the Reseller from selling competing products from other suppliers.  Be aware that this restriction may be considered a breach of Australia’s competition laws if it has the effect of significantly lessening competition in the market.  This will depend on the particular circumstances involved.]

1.55   To the fullest extent allowed by law, in consideration of the promises made in this clause 19.2 and without reducing any other rights or liabilities of the Reseller under the provisions of this Agreement, the Reseller shall not:-

[If you want to restrict the Reseller from engaging in a business in direct competition with the Products, use clause (a), otherwise delete it.]

(a)     engage either directly or indirectly in any business in direct competition with the Products;

[If you want to restrict the Reseller from distributing or selling competing products, use clause (b), otherwise delete it.]

(b)     sell products which will reasonably be considered as competing with the Products of the Supplier during the Term within the Territory.

1.56   The Reseller shall not during the Term:-

(a)     knowingly or recklessly sell any Products to third parties for resale or Reseller outside the Territory without the written consent of the Supplier;

(b)     in any way pledge or purport to pledge the Supplier's credit;

(c)     use, or permit others to use, the Products (or any part of the Products) except in accordance with the express provisions of this Agreement;

(d)     allow any unlicensed reproduction or copying of the Products;

(e)     allow any unauthorised use of the Trademarks in the Territory; or

(f)      give any notice to the Supplier that is false or misleading or reasonably considered by the Supplier to be materially false or misleading.

1.57   The Reseller and the Supplier represent and warrant to each other that as at the date of this Agreement:

(a)     the recitals of this Agreement are true and correct;

(b)     where the Reseller is a corporation, it has the power and authority to enter into this Agreement and perform and observe the obligations imposed on the Reseller by this Agreement;

(c)     execution of this Agreement and performance of the matters and transactions contemplated in this Agreement, does not constitute a breach or contravention of any law, regulation, by-law or any agreement binding on the Reseller or its assets;

(d)     the Reseller has such permits, licences, consents and authorities as may be necessary or desirable for it to have in connection with the performance and observance of its obligations under this Agreement.

1.58   The Reseller agrees to sell the Products at prices within reasonable recommended pricing guidelines (if any) established by the Supplier unless the Supplier and the Reseller agree otherwise prior to the sale.

19.     CONFIDENTIAL INFORMATION

1.59   Both during and after termination of this Agreement, the Reseller shall treat as confidential all information obtained concerning the Supplier's business and the Products, including but not limited to the Confidential Information and shall not disclose any such information to any other person except to the extent necessary to comply with this Agreement.

20.     LIABILITY EXCLUSIONS

1.60   The Reseller acknowledges that:-

(a)     in seeking from the Supplier the right to distribute the Products in the Territory and other rights granted, the Reseller has relied upon its own assessment of the ability of the business it proposes to undertake utilising those rights.  In particular, the Reseller acknowledges that neither the Supplier nor any person acting or purporting to act on its behalf, has given any warranty or made any representations concerning the profitability or otherwise of that business;

(b)     it has not relied on any representations or warranty made or given by the Supplier or any person acting or purporting to act on its behalf, whether as to the fitness of the Products for any particular purpose or as to any other matter, which is not expressly set out in this Agreement.

1.61   The Reseller agrees that in no case, other than a breach of the Supplier's Warranty, shall the Supplier be liable, whether in respect of negligence or breach of contract:-

(a)     to any third party in relation to the supply by the Reseller, or failure to supply by the Reseller, of the Products; or

(b)     to any third party or the Reseller for any consequential loss in relation to the supply of the Products.

1.62   The Supplier's liability for breach of any warranty or condition in relation to the supply of the Products, other than a breach of the Supplier's Warranty, shall (to the extent legally permissible) be limited to any one or more of the following as determined by the Supplier in its absolute discretion:-

(a)     the replacement of the Products;

(b)     the supply of equivalent Products;

(c)     the payment of the cost of replacing the Products;

(d)     the payment of the cost of acquiring equivalent Products.

1.63   Neither the Supplier nor the Reseller will be liable for a failure to comply with any obligations imposed under this Agreement to the extent that such failure results from any governmental act, refusal of licence, interruption or failure of electrical supply, fire, explosion, liability to obtain information on materials or without limitation any other cause beyond the reasonable control of the party affected.

21.     INDEMNITY

1.64   The Reseller agrees to indemnify and to continue to indemnify the Supplier from any actions, claims, costs, damages, demands, expenses, judgments, losses (including consequential loss and loss of profit), orders of any nature whatsoever arising out of or in consequence of a breach or a default by the Reseller of its obligations under this Agreement.

22.     TERMINATION

1.64   Either party may terminate this Agreement by reasonable notice in writing to the other, for substantial breach of any material provision of this Agreement by the other party, provided that notice has first been given to the other party, specifying the alleged breach and requesting it to be remedied within 30 days and the other party fails to remedy the breach in accordance with the notice.

1.65   The Supplier may terminate this Agreement by notice given to the Reseller upon the occurrence of an event of default.

1.66   For the purposes of sub-clause 23.2, each of the following events is an event of default:

(a)     the Reseller being a corporation, taking or having taken or instituted against it any action or proceeding which has an object or may result in winding up of the Reseller (other than a voluntary winding up for the purposes of amalgamation or reconstruction consented to in writing by the Supplier);

(b)     the Reseller being a corporation, being placed under official management, a receiver or a receiver or manager being appointed over the whole or any part of the Reseller's undertaking or a person entitled to the benefit of any charge, mortgage or encumbrance created or given by the Reseller taking possession of the whole or any part of the undertaking of the Reseller;

(c)     the Reseller being a corporation, and effective control of the Reseller being altered to any material extent from that subsisting at the date of this Agreement without the prior written consent of the Supplier;

(d)     the Reseller entering into or proposing to enter into any scheme or arrangement or any composition for the benefit of its creditors;

(e)     in the event of the Supplier and Reseller varying the terms of payment to a credit account, such account being late in payment in excess of fourteen (14) days of the agreed terms in writing;

(f)      failure to reach any sales targets in accordance with this Agreement or as may otherwise be agreed to in writing;

(g)     any other event occurs which in the reasonable opinion of the Supplier materially affects or could materially affect the ability of the Reseller to perform and observe any obligations under this Agreement.

1.67   The Reseller may terminate this Agreement by notice in writing with effect on any day following the date of service, should a liquidator be appointed to the Supplier or the Supplier enter into any arrangement or scheme with its creditors.

1.68   At the end of the term, the Agreement shall continue until terminated by either party upon at least 30 days’ prior written notice.

1.69   This agreement may be terminated by mutual consent in writing.

23.     NOTICES

1.70   All notices or other communications in connection with this Agreement shall be in writing by delivery to the address nominated for service stipulated at Item 12 (or such other address as may be nominated in writing from time to time by the parties).

1.71   Notices, approvals, consents and demands given to a party shall be deemed to have been received by that party:-

(a)     if given by delivery, at the time of delivery;

(b)     if given by email, two (2) business days after sending;

(c)     if given by prepaid mail, five (5) business days after posting.

1.72   For clarification, a notice or communication under this Agreement is effective if sent electronically or as an email communication, unless required to be physically delivered by law.

24.     TRANSFER

1.73   The Reseller may not transfer any right or interest in this Agreement or delegate to any person, the performance of any obligation imposed on it by this Agreement, without the prior written consent of the Supplier which consent shall not be unreasonably withheld.

1.74   In the case of a sale or transfer, such shall be conditional upon:-

(a)     the consent of the Supplier, which shall not be unreasonably withheld;

(b)     the purchaser or transferee having, in the sole opinion of the Supplier, a satisfactory credit rating and competent business experience;

(c)     the purchaser or transferee first executing a Reseller agreement with the Supplier in the form in current use at the time by the Supplier;

(d)     the Reseller having fully paid and satisfied all its obligations to the Supplier.

1.75   Right of first refusal

(a)     In the event that the Reseller wishes to transfer its interests in this Agreement, it must first offer such interest to the Supplier in writing, setting out the details of the proposed offer, including the proposed sale price. The Supplier will have the first right to purchase the interests of the Reseller, at market value.

(b)     The Supplier may elect to accept the terms of the offer at any time within 30 days of receipt of the notice in writing.  Alternatively, the Supplier may request, prior to the end of the 30 day period, an assessment as to the fair market value of the Reseller’s interest.  Each party will be entitled to a valuation by a valuer of their choice.  If, as a result of such valuations, the parties are still unable to agree on a fair market price, a third valuation shall be obtained, by a registered valuer appointed by the parties or failing agreement, by the Australian Institute of Business Brokers in that State. The fair market value shall be deemed to be the average of the three valuations received.  Once a fair market value is agreed, the Supplier may, by written notice within a period of 14 days, elect to acquire the Reseller’s interest based on the fair market value.  Settlement of such transfer must be effected within 45 days of the election to acquire.

(c)     If the Supplier does not elect to acquire the Reseller’s interest pursuant to this Agreement, the Reseller may transfer and assign its interest to a third party at a price not less than the fair market value reached by the parties in accordance with the above provisions.

(d)     Each party agrees to execute all such documents and do all such acts as may be required to give effect to this clause.

25.     NO WAIVER

1.76   No neglect, delay or indulgence of the Supplier in enforcing the terms and conditions of this Agreement, shall prejudice, or be construed as a waiver of, any of the Supplier's rights or remedies.

1.77   Any waiver of the Supplier’s rights or remedies under this Agreement, shall not be effective unless in writing. Any waiver given shall not operate as a waiver of any other breach of this Agreement by the Reseller.

26.     SEVERABILITY

1.78   The parties agree that for any reason, if any clause or any part of a clause of this Agreement shall be void, voidable or unenforceable:-

(a)     such clause or part thereof shall be severable from all other clauses and provisions of this Agreement;

(b)     all other clauses and provisions will remain unaffected by such voidability or unenforceability;

provided, however, that should the severance of such clause or part thereof be considered by the Supplier to be materially adverse to its interest, the Supplier may terminate this Agreement by notice given to the Reseller.

27.     JOINT AND SEVERAL OBLIGATIONS

1.79   Where the Reseller comprises two or more persons, an obligation to be performed or observed by the Reseller binds those persons jointly and each of them severally.

28.     LEGAL ADVICE AND COSTS

1.80   The Reseller warrants that it has been advised to seek independent legal advice in relation to this Agreement.

1.81   The Reseller shall pay any legal costs incurred by the Supplier in relation to any amendments to this Agreement requested by the Reseller and agreed to by the Supplier.

29.     MISCELLANEOUS

1.81   This Agreement shall bind the personal representatives, successors and permitted assigns of the parties.

1.82   The rights and remedies of the Supplier set out in this Agreement in respect of a breach of or default under this Agreement by the Reseller, are exclusive but will be cumulative and will be in addition to any rights or remedies that the Supplier may have in law or equity.

1.83   The Reseller shall, at its expense, execute all instruments and assurances and do all such things as the Supplier considers necessary or desirable, in order to give full force and effect to this Agreement or to facilitate the transactions contemplated in this Agreement.

1.84   Nothing contained in this Agreement shall constitute or give rise to, or is intended to constitute or give rise to, the relationship of partnership or Supplier and agent between the parties.

1.85   Unless the context otherwise permits, the singular shall include the plural and vice versa and reference to one gender shall include every other gender and the neuter.

30.     DISPUTE RESOLUTION AND GOVERNING LAW - DOMESTIC

1.86   This Agreement takes effect, is governed by and shall be construed in accordance with, the laws from time to time in force in the state or territory stipulated at Item 13 of the Schedule.

1.87   Unless one of the parties to this Agreement is located outside Australia, any dispute, difference or question which may arise at any time between the parties concerning the construction of this Agreement or the rights and liabilities of the parties must (unless otherwise expressly provided) be referred to the decision of a single arbitrator to be agreed upon between the parties or in default of agreement for 14 days to be appointed at the request of either party by the President for the time being of the Law Society of the state in which this agreement is signed, under and subject to the commercial arbitration legislation or for the time being in force in the state in which this agreement is signed.

1.88   Such reference once submitted shall be arbitrated in accordance with, and subject to:

(a)     the Commercial Arbitration Act 1986 of the Australian Capital Territory as if it applied in the State or Territory where this agreement was signed and also the state or territory where the parties have lived for the longest part of their relationship after that date; and

(b)     the Institute of Arbitrators & Mediators Australia Expedited Commercial Arbitration Rules.

1.89   For disputes in which the quantum is less than $500,000, arbitration shall take place using the submission of documents alone unless both parties agree otherwise.

1.90   No party shall commence legal proceedings without having made all best endeavours to conciliate or to arbitrate any dispute.

31.     DISPUTE RESOLUTION AND GOVERNING LAW - INTERNATIONAL

1.91   If a dispute arises where one of the parties is outside Australia, then clause 32 shall not apply and instead this clause 33 shall apply to this Agreement.  If any disagreement or dispute arising from this Agreement or its interpretation, validity or enforcement is not resolved within sixty (60) days after notice of the dispute is received, then both parties consent and agree that the dispute will be finally and conclusively settled in a binding arbitration held in the Australian Capital Territory (or such other venue agreed to by the parties in writing) under the then-existing UNCITRAL Rules of Arbitration, and the law that applies shall be the law of the Australian Capital Territory.

1.92   The arbitration will be conducted in the English language by a single arbitrator chosen in accordance with the UNCITRAL Rules, who is skilled in the business matters of this nature.  The arbitrator shall determine the costs of the arbitration but in no event will either party be required to give any security for costs.  The arbitrator shall allow each party to conduct limited discovery regarding the dispute, including a complete exchange of all relevant documents and all documents which will be submitted at the hearing and oral depositions under oath or affirmation by all important witnesses.

1.93   The decision of the arbitrator shall be final and shall be fully enforceable in any jurisdiction where the non-prevailing party has assets.  Notwithstanding the foregoing agreement to arbitrate disputes, either party shall have the right to request that a court of competent jurisdiction issue a temporary restraining order or a temporary injunction or similar equitable relief in order to protect a party from any immediate or irreparable harm or damage which may occur pending the final decision of the arbitrator.

1.94   The parties agree that this clause on arbitration constitutes a fair, reasonable and equitable manner of resolving dispute and does not unfairly disadvantage or prejudice either party.