Supply Agreement

BETWEEN

POST FIJI PTE LIMITED

(Company)

AND

………………………………………………

(Supplier)

DATED:

BETWEEN: POST FIJI PTE LIMITED a limited liability company having its registered office at General Post Office Building, 10 Thompson Street, Suva in the Republic of Fiji (which together with its successors and permitted assigns is hereinafter referred to as (“ Company ”) of the one part.

AND: ……………………………………………………………….. (together with its successors and permitted assigns “ Supplier ”)


WHEREAS:

A. The Company operates the Online Store called “eShop” located at the following URL: https://www.postfiji.com.fj/eshop/Home.aspx; through which the Company sells various Product/Service to Customers.
B. The Company is desirous of selling the Product/Service(s) through the Online Store and the Supplier agrees to supply the Product/Service(s) to the Company as a non-exclusive supplier.
C. The Company and Supplier now enter into this Agreement for the supply of the Product/Service(s) on the terms and conditions contained herein
“Company” and “Supplier” are hereinafter collectively referred to as “Parties” or individually as “Party”

THE PARTIES AGREE AS FOLLOWS:

1. Definitions and Interpretation

1.1 Definitions
Agreement means this Supply Agreement between the Company and the Supplier including its schedules (if any)

Business Day means a day (except Saturday and Sunday) on which banks are open for general banking business in the Republic of Fiji

Company Marks means any trade-marks, other marks or names utilized by the Company in the distribution of goods and services in the Republic of Fiji including but not limited to any marks associated with the Online Store

Confidential Information of a Party means all the information treated by that Party or any of its related bodies corporate as confidential (regardless of its form and whether the other Party becomes aware of it before or after the commencement of this Agreement), except information that is public knowledge otherwise than as a result of a breach of any obligation of confidentiality

Customer shall mean any individual, group of individuals, firm, company or any other entity placing an Order for the Product/Service of the Supplier through the Online Store

Delivery Charges shall mean the logistics/courier/postal/freight charges (as applicable) including all taxes incurred for delivering the Product/Service(s) to the Customer

Effective Date means ………………………………………..

Force Majeure means an act of God, strike, lockout or other labour dispute, war declared or undeclared, blockade, revolution, riot, insurrection, civil commotion, sabotage, lightning, fire, earthquake, storm, flood, explosion, governmental or Governmental Agency restraint expropriation, prohibition, intervention, direction or embargo, unavailability or inability to obtain or delay in availability of necessary equipment or transport, inability to obtain or delay in obtaining necessary approvals or licenses from government or government agencies, and any other cause whether of the kind specifically mentioned above or otherwise which is not reasonably within the control of the party affected

Governmental Agency means any government or any governmental, semi- governmental or judicial entity or authority. It also includes any self- regulatory organization established under statute or any stock exchange

Intellectual Propertyincludes patents, utility models, copyrights, rights in circuit layouts, registered designs, trademarks, service marks, trade names, brand names, business names, logos, Product/Service names, indications of source or appellations of origin, whether registered or not, inventions, discoveries, trade secrets, know how, formulae, computer software, confidential, scientific, technical and Product/Service information, data, other intellectual property owned or licensed by a Party and any right to have Confidential Information kept confidential. For the purposes of clarity, “know-how” means any inventions, trade secrets, formulae, and other intellectual property and derivations thereof, concepts, ideas, training materials, industry practices and techniques owned or licensed by a Party

Online Store shall mean a virtual electronic store created on the Post Fiji Pte Limited website for sale of the Product/Service(s) and other Product/Services either through web site or other designated site set up on behalf of the Company or any other gadget or instrument displaying the particulars of the Product/Service(s) available for sale, or any other means by which the Customer places an Order for the Product/Service.

Order shall mean an order for purchase of Product/Service(s) wherein Customer has agreed to purchase the Product/Service upon the terms and conditions and at the Price indicated on the Online Store

Price means the sale price of a Product/Service inclusive of any applicable taxes, unless stated otherwise and as outlined in the Schedule which Schedule may be amended from time to time by written mutual agreement

Product/Service means the Product/Service(s) supplied by the Supplier from time to time pursuant to the Order and this Agreement and as outlined in the Schedule which Schedule may be amended from time to time by written mutual agreement

Term means the term of this Agreement commencing from the Effective Date until termination in accordance with the terms of this Agreement

Website means [https://www.postfiji.com.fj/eshop/Home.aspx]

1.2 Interpretation

Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise:

1. the singular includes the plural and conversely;
2. a gender includes all genders;
3. if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
4. a reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them;
5. a reference to a clause or schedule is a reference to a clause of or a schedule to, this Agreement;
6. a reference to an agreement or document (including, without limitation, a reference to this Agreement) is to the agreement or document as amended, varied, supplemented, novated or replaced except to the extent prohibited by this Agreement or that other agreement or document;
7. a reference to a party to this Agreement or another agreement or document includes the party’s successors, permitted substitutes or assigns (and, where applicable, the party’s legal personal representatives);
8. a reference to legislation or to a provision of legislation is a reference to legislation of the Republic of Fiji and includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
9. a reference to an office or post or holder thereof is a reference to an office or post in the Republic of Fiji;
10. a reference to money or currency is a reference to Fiji Dollars;
11. a reference to writing includes a facsimile transmission and any means of reproducing words in a tangible and permanently visible form;
12. company, corporation and body corporate have the meanings respectively provided under the Companies Act 2015; and
13. mentioning anything after include, includes or including does not limit what else might be included

2. Product/Services on the Online Store

2.1 The Supplier shall register itself on the Company’s online vendor registration portal as a Supplier. The Supplier shall ensure that it provides correct, valid and accurate information for the Company to allow the Supplier to register on the Company’s vendor registration portal The Supplier shall co-operate with the Company and provide the information requested by the Company to facilitate the registration. The Company shall not be liable for any incorrect, misleading, vague or invalid information provided by the Supplier for the registration.

2.2 The Company shall offer sale of the Supplier’s Product/Service to facilitate the purchase of the Product/Service from the Online Store by the Customer.

2.3 The purchase of the Product/Service by a Customer shall be subject to the terms and conditions hereinafter contained and shall be governed by the “Terms of Use” of Post Fiji Pte Limited Ecommerce (incorporated in this Agreement by way of reference and forms part of this Agreement.

Passing of title

2.4 Title to the Product/Services passes to the Customer free of encumbrances and all other adverse interests upon payment in full by the Company to the Supplier for the Product/Services.

Passing of risk

2.5 Risk in the Product/Services passes from the Supplier to the Customer upon delivery of the Product/Service to the Customer.

Invoicing and packaging

2.6 The Supplier shall create and issue the invoice for the Order to the Customer as soon as the Order is submitted on the Online Store by the Customer. 2.7. The Supplier shall package the Product for end delivery to the Customer. The Supplier shall ensure that the Product(s) is packaged in an adequate, safe and efficient manner so as to ensure that the Product(s) is not damaged before or during its delivery. The Supplier shall ensure that the manner in which the Product is packaged does not infringe on any law or regulations in relation to packaging of Products. Moreover, in the event the Product is to be delivered out of the country or shipped or flown for delivery to the Customer, the Supplier shall ensure that the Product is packaged in compliance with relevant laws and regulations to ensure that the Product is cleared by any Governmental Agency or other relevant local or offshore authority for its passage to the Customer.

2.8 The Company shall not be liable for any defective packaging of the Product and the Supplier agrees that it shall be solely responsible for the compliance and adequacy of the packaging and its contents.

2.9 The Company shall collect the packaged Products from the Supplier and arrange for delivery to the Customer. The Supplier shall deliver the Product to the Customer at its own cost if mutually agreed by the Parties in writing before such delivery is carried out.

3. Price and Payment

3.1 The Supplier shall supply the Product/Service(s) at the Price stipulated in the Schedule. The Supplier shall not at any time supply the Product/Service for a price that is more than its retail price. The Supplier agrees that the Price for which the Company sells the Product/Service shall be as stipulated by the Company on the Website/Online Store.

3.2 The Company shall release the payment for the Product to the Supplier’s designated bank account within 30 Business Days of delivery of the Product to the Customer. The Company shall retain it 10% commission from the proceeds before it release the Supplier’s Price component to the Supplier’s bank account.

3.3 Each Party shall be responsible for the payment of its own taxes associated with the supply of Product/Service pursuant to this Agreement.

4. Product/Service Delivery

4.1 The Supplier shall dispatch to the Company the Product/Service(s) of same description, quality and quantity as are described and displayed on the Online Store and for which the Customer has placed the Order.

4.2 Where mutually agreed by the Parties, the Supplier shall deliver the purchased Product/Service to the Customer at its own cost.

4.3 The Parties agree to work together in good faith to give effect to clauses 4.1 and 4.2, as applicable.

4.4 In any event, the Supplier agrees to ensure that it shall provide the Product/Service to the Company or deliver to the Customer (as applicable), within the agreed timeframe so that the Company is able to comply with the lead for delivery of the Product/Service as stipulated on the Online Store.

5. Supplier Obligations

5.1 The Supplier shall ensure that it provides the Company with the correct Product/Service description, images, disclaimer, delivery time lines, Product/Service specifications and such other details for the Product/Services to be displayed and offered for sale through the Online Store.

5.2 The Supplier shall ensure not to provide any description/image/text/graphic/specifics that are unlawful, illegal, objectionable, obscene, vulgar, opposed to public policy, prohibited or is in violation of Intellectual Property rights including but not limited to trademark and copyright of any third party. The Company reserves the right to remove any information from the Online Store which in its opinion, may violate relevant laws and regulations.

5.3 The Supplier shall provide full, correct, accurate and true description of the Product/Service to the Company so as to enable the Company to upload correct information in relation to the Product/Service onto the Online Store and so that Customers can make an informed decision in respect of the Product/Service.

5.4 The Supplier shall be solely responsible for the quality, quantity, merchantability, fitness for purpose; guarantees and warranties in respect of the Product/Services supplied for sale through the Online Store and shall additionally ensure that it complies with relevant laws and regulations in respect of the Product/Service and the packaging and supply of same.

5.5 In the event the Product/Services are not accepted by the Customer due to any wrong / damaged Product/Services dispatched, then the same shall be replaced by the Supplier at no extra cost to the aggrieved Customer or the Company. The Supplier shall ensure that it honors the warranties and guarantees in relation to the Product/Service(s).

5.6 The Supplier shall not send any of its promotional or any other information with the Product/Services ordered by the Customer unless agreed by Parties otherwise and also shall ensure that no material or literature is sent which may be detrimental to the business/commercial interests of the Company.

5.7 The Supplier shall be solely responsible for any dispute that may be raised by the Customer relating to the Product/Service(s) and any delivery services provided by the Supplier.

5.8 The Supplier shall at all times during the currency of this Agreement endeavor to protect and promote the interests of the Company and ensure that third parties rights including Intellectual Property rights are not infringed.

5.9 The Supplier shall at all times be responsible for compliance of all applicable laws and regulations including but not limited to Intellectual Property rights, consumer protection, fair trading, sale of goods, excise and import duties, taxes, etc.

6. Warranties, Representations and Undertakings of the Supplier

The Supplier warrants and represents that

6.1 It has the right and full authority to enter into this Agreement with the Company and the ability to carry out its obligations under this Agreement.

6.2 All its obligations under this Agreement are legal, valid and binding obligations enforceable in law.

6.3 There are no proceedings pending, which may have a material adverse effect on its ability to perform and meet its obligations under this Agreement;

6.4 That it is an authorized business establishment and holds all the requisite permissions, authorities, approvals and sanctions to conduct its business and to enter into an arrangement with the Company. That it shall at all times ensure compliance with all the requirements applicable to its business and for the purposes of this arrangement.

6.5 That the Product/Service(s) is of merchantable quality and made of good material and workmanship and is reasonably fit for the purpose for which goods of the same kind are commonly supplied.

6.6 That it has adequate rights under relevant laws including but not limited to various Intellectual Property laws to enter into this Agreement with the Company and perform the obligations contained herein and that it has not violated/ infringed any Intellectual Property rights of any third party. The Supplier shall provide the Company with copies of any document required by the Company for the purposes of the performance of its obligations under this arrangement within 24 (twenty four) hours of receipt of a written notice from the Company.

6.7 That the complete Product/Service responsibility and liability shall solely vest with the Supplier and that the Supplier shall be solely responsible to the Customer for the sale of the Product/Service through the Online Store including but not limited to its delivery to the Customer (if the Supplier is required to deliver) and that the Supplier shall not raise any claim against the Company in this regard.

6.8 The Supplier agrees and undertakes full responsibility for any text, images, graphics (for description and display of Product/Service on the Online Store) it provided to the Company that is vulgar, obnoxious, inaccurate, false, incorrect, misleading, intimidating or against the public policy.

6.9 The Supplier shall take all reasonable steps to ensure that its handling and storage of the Product/Service is appropriate for that type of Product/Service and minimizes the risk of the Product/Service being damaged or deteriorating.

6.10 The Supplier shall appoint and maintain throughout the Term a designated officer who shall be reachable 24/7 by the Company and Customers to assist and/or deal with queries, complaints or any assistance or information required in respect of the Products/Services. The Supplier shall inform the Company of such officer(s) details and any changes to same. In addition, the Supplier shall also set up an email account for correspondence by email where necessary.

7. Indemnity

7.1 The Supplier indemnifies and shall hold indemnified the Company, its directors, officers, employees, representatives, agents from and against all losses, damages, claims, suits, legal proceedings and otherwise howsoever arising from or in connection with any claim including but not limited to claim for any infringement of any Intellectual Property rights or any other rights of any third party or of law, concerning quality, quantity and any claim in relation to the Supplier’s Product/Service, the breach of any of the Supplier’s warranties, representations or undertakings or in relation to the non-fulfillment of any of its obligations under this Agreement or arising out of the Supplier infringing any applicable laws, regulations including but not limited to Intellectual Property rights, tax law, consumer law, etc.

7.2 This clause shall survive the termination or expiration of this Agreement.

8. Company not Liable

8.1 The Company shall under no circumstances be liable or responsible for any loss, injury or damage to the Supplier, or any other party whomsoever, arising on account of any transaction under this Agreement or as a result of the Product/Services being in any way damaged, defective, in unfit condition, infringing/ violating any laws / regulations Intellectual property rights of any third party.

8.2 The Supplier agrees and acknowledges that

1. The Supplier shall be solely liable for any claims, damages, allegation arising out of the Product/Services supplied to the Company (including but not limited to quality, quantity, price, merchantability, use for a particular purpose, or any other related claim) and shall hold the Company harmless and indemnified against all such claims and damages.
2. The Company shall not be liable for any claims, damages arising out of any negligence, misconduct or misrepresentation by the Supplier or any of its representatives.

8.3 Under no circumstances, except in case of breach of contract, will the Company be liable to the Supplier for lost profits, or for any indirect, incidental, consequential, special or exemplary damages arising from the subject matter of this Agreement, regardless of the type of claim and even if the Supplier has been advised of the possibility of such damages, such as, but not limited to loss of revenue or anticipated profits or loss business, unless such loss or damages is proven by the aggrieved party to have been deliberately caused by the Company.

9. Term, Termination and effects of Termination

Term

9.1 The Term of this Agreement shall commence on the Effective Date and shall continue in force unless terminated in accordance with the terms and conditions of this Agreement.

Termination

9.2 Without prejudice to any other right of termination, the Company may terminate this Agreement with immediate effect in each of the following circumstances;

1. If the Supplier being a Company is or becomes insolvent within the meaning of the Companies Act (as may be amended from time to time) or becomes a Company under liquidation within the meaning of the Companies Act or a receiver within the meaning of the Companies Act is appointed to or enters into possession of any of the assets or undertaking of the Supplier.
2. If the Company receives from a government regulator notice in writing, whether by way of letter or otherwise, of any allegation by that regulator or other person of a breach by the Supplier or its employees and or agents of any legislation relevant to this Agreement, and the Company is not satisfied as to the Supplier’s explanation in respect thereof (which the Supplier must supply in writing within 48 (forty eight) hours of request by the Company).
3. If the Supplier engages in or threatens to engage in any conduct which the Company considers would harm the reputation or goodwill of the Company.
4. If the Supplier fails to pay any monies due and payable to the Company within 14 Business Days of written demand.
5. The Supplier attempts to assign this Agreement without prior consent of the Company.
6. If the Supplier is in breach of a material term of this Agreement including but not limited the warranties and representations given by the Supplier in this Agreement or implied in this Agreement.

Termination with Notice

9.3 Without limiting the generality of clause 9.2, either Party shall have the right to terminate this Agreement at any time by giving the other Party 30 days’ notice in writing.

Accrued Rights Not Affected

9.4 Termination of this Agreement will not affect the accrued rights or remedies of either Party. In addition, for avoidance of doubt, the Supplier shall supply the Product/Service(s) purchased or Ordered by the Company or Customer carried out prior to termination and up to the effective date of termination. If the supply is to be made post termination date, the Supplier shall honor its accrued obligations under this Agreement.

9.5 In the event of termination/expiry of this Agreement, the Company shall not be liable for any loss or damages (direct, indirect or inconsequential) incurred by the Supplier by virtue of termination of this Agreement.

10. Confidential Information

10.1 No Disclosure

I. Any information which is communicated to the Supplier or any of its directors, officers, employees or contractors by the Company under this Agreement will be treated by the recipient as confidential and valuable to the Company, and must not be disclosed either directly or indirectly to any other person or corporation. This provision will not apply if:

1. The recipient of the information has the written consent of the Company to disclose the information; or
2. The recipient can demonstrate that the information was known to it before disclosure; or
3. The information is subsequently otherwise legally acquired by the recipient from a third party not in breach of any confidentiality obligation to the Company which originally communicated the information; or
4. The information is or comes into the public domain otherwise that by breach of this Agreement; or
5. The disclosure is reasonably made to a professional legal adviser; or
6. The other Party consents in writing to the disclosure. The other Party’s consent may be subject to the condition that the person to whom the disclosure is to be made enter into a separate confidentiality agreement with the provider or a written acknowledgment of the terms of this clause 10.1; or
7. The information is required by law to be disclosed.

II. The Supplier must use all reasonable endeavors to impose undertakings of confidentiality on those officers, directors, employees and contractors to whom the information has been disclosed and the Supplier must notify the Company in writing of the names and titles of such officers, directors, employees and contractors.

10.2 Pre-Agreement Information

Confidential information disclosed to the Supplier or its officers, directors or employees before the execution of this Agreement will also be governed by the provisions of this clause, and these confidentiality obligations survive the termination of this Agreement.

11. Intellectual Property Rights

11.1 It is expressly agreed and clarified that, except as specified agreed in this Agreement, each Party shall retain all right, title and interest in their respective trademarks and logos and that nothing contained in this Agreement, nor the use of the trademark / logos on the publicity, advertising, promotional or other material in relation to the Product/Service shall be construed as giving to any Party any right, title or interest of any nature whatsoever to any of the other Party’s Intellectual Property.

12. Miscellaneous

12.1 Assignment

The Supplier must not assign or novate any of its rights or obligations under this Agreement, without the written consent of the Company.

12.2 Entire agreement

This document contains everything the parties have agreed on in relation to its subject matter. No Party can rely on an earlier document, or on anything said or done by another party (or by a director, officer, agent or employee of that Party) before this Agreement was executed.

12.3 Execution of separate documents

This Agreement is properly executed if each Party executed either this Agreement or an identical copy. In the latter case, this Agreement takes effect when the last of the identical copies is executed.

12.4 Force Majeure

A Party is not liable for failure to perform, or delay in performing, an obligation (except an obligation to pay money) if each of the following conditions is satisfied:

1. the failure or delay arose from a Force Majeure event;
2. the Party took all reasonable precautions against that Force Majeure and did its best to mitigate its consequences. This does not require the Party to settle a labour dispute if, in the Party’s opinion, that is not in its best interests;
3. the Party gave each other Party notice of the Force Majeure event as soon as practicable after becoming aware of it;
4. if the Force Majeure event and the resulting failure or delay lasts for more than 28 (twenty eight) days, the Party is entitled to end this Agreement immediately by giving each other Party written notice.

12.5 Further co-operation

Each Party must do anything (including executing a document) another Party reasonably requires in writing to give full effect to this Agreement and the transactions it contemplates.

12.6 Giving notices etc.

Any notice, consent, information or request that must or may be given or made to a Party under this Agreement is only given or made if it is:

1. delivered or posted to that Party at the address stated below; or
2. faxed to that Party at the fax number stated below.

Company: Address: Level 3
General Post Office Building
10 Thomson Street
Suva, Fiji
Fax: 3307819
Attention: Manger Sales and Marketing
Phone: 9995808
E-mail: Nirmala.Nambiar@postfiji.com.fj

Supplier: Address: [insert]
Fax: [insert]
Attention: [insert]
Phone: [insert]
Email: [insert]

However, if a Party gives another party 3 (three) Business Days written notice of a change of that, or a subsequent, address, fax number, any notice, consent, information or request is only given or made by that other Party if it is delivered, posted or faxed to the latest address or to the latest fax number.

12.7 Governing law and jurisdiction

This Agreement is governed by the laws of the Republic of Fiji. The Parties submit to the non-exclusive jurisdiction of the courts of that place.

12.8 Liability for costs

Each Party must pay its own costs in relation to preparing, negotiating and executing this Agreement.

12.9 Mediation and Arbitration

Mediation

If a dispute arises in relation to this Agreement, either Party may give the other a notice requiring that an attempt be made to resolve the dispute with the help of a mediator to be appointed jointly by the Parties. If the Parties do not agree on a mediator within 7 (seven) days after the notice is given, the mediator is to be appointed by the Company. Each of the Parties must co-operate fully with the mediator. Each of the Parties must pay an equal share of the fees and expenses the mediator is entitled to.

Arbitration

1. If mediation fails, any dispute arising out of or related to or connected with any provisions under this Agreement shall be referred to the arbitration of a single arbitrator to be appointed jointly by the parties.
2. The arbitration shall be conducted in Fiji in accordance with the Arbitration Act or any modification or reenactment for the time being in force.
3. The language of arbitration shall be English. The arbitration shall be held in Fiji.
4. The award of the arbitrator or arbitrators as the case may be shall be final and binding on the Parties.
5. This clause is without prejudice to either Party’s other rights or remedies including the right to seek injunctive relief or otherwise commence legal proceedings at any time in accordance with clause 12.7.
6. The Parties shall equally share the costs of arbitration proceedings.

12.10 No partnership etc.

This Agreement does not create a partnership, agency, fiduciary or any other relationship, except the relationship of contracting parties, between the Parties. No Party is liable for an act or omission of another Party, except to the extent set out in this Agreement.

12.11 No representations of authority

A Party must not enter into any agreement or incur any liability on behalf of the other Party and must not represent to any person that it has authority to do so.

12.12 Publicity

A Party must not make any public announcement or representation to any person about this Agreement or anything in relation to it without the other Party’s written consent.

12.13 Severability

If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this Agreement, but the rest of this Agreement is not affected.

12.14 Time notice etc. is given

A notice, consent, information or request is to be treated as given or made at the following time:

1. if it is delivered, when it is left at the relevant address.
2. if it is sent by post, 2 (two) Business Days after it is posted.
3. if it is sent by fax, as soon as the sender receives from the sender’s fax machine a report of an error free transmission to the correct fax number.

If a notice, consent, information or request is delivered, or an error free transmission report in relation to it is received, after the normal business hours of the Party to whom it is sent, it is to be treated as having been given or made at the beginning of the next Business Day.

12.15 Waiver

1. The fact that a Party fails to do, or delays in doing, something the Party is entitled to do under this Agreement, does not amount to a waiver of any obligation of, or breach of obligation by, the other Party. A waiver by a Party is only effective if it is in writing.
2. A written waiver by a Party is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach; or as an implied waiver of that obligation or breach in relation to any other occasion.

EXECUTED AS AN AGREEMENT

Executed by POST FIJI PTE LIMITED in accordance with section 53 of the Companies Act:

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