Terms and Conditions

New Balance Australia Pty Ltd Standard Trading Terms and Conditions

These Standard Trading Terms and Conditions (“Trading Terms”) apply to all credit advanced, services supplied and Products sold ("Products") by New Balance Australia Pty Ltd ("New Balance") to its Customers (“the Customer”) and form part of and are to be read in conjunction with the Trading Term Agreement Schedule (if any). No agent or representative of New Balance is authorised to make any representations, warranties or agreements not expressly contained in these and New Balance is not in any way bound by such representations, warranties or agreements. Except to the extent specified in these Trading Terms, these Trading Terms apply to Products delivered to the Customer even if the Customer is a member of a third party buying group approved by New Balance ("Approved Buying Group") and the Approved Buying Group is obliged to pay New Balance for the Products delivered.

Application of Terms and Account Procedures

  1. Unless otherwise agreed between the Customer and New Balance these terms and conditions shall apply to the exclusion of all other terms and conditions including but not limited to any terms and conditions of the Customer.
  2. No Products will be supplied by New Balance to the Customer on any other terms or conditions other than those set out in this document.
  3. New Balance will only offer Products once a completed official New Balance “Application for Commercial Credit Account” has been completed and subsequently approved by New Balance.
  4. Any subsequent store locations must also be approved by New Balance before New Balance Products can be distributed from another outlet.
  5. The granting of credit terms for new or existing accounts is entirely at New Balance’s discretion and New Balance may withdraw or vary credit terms at any time upon the provision of 48 hours written notice.
  6. New Balance reserves the right to refuse or cease supply to any Customer or prospective Customer for any reason and will notify the Customer of the reasons for the refusal or the cease of supply.

Sourcing and Distribution Policy

  1. The Customer must not source New Balance Products other than from New Balance.
  2. New Balance Products may only be sold by Customers to consumers and sales to or purchases from any other retailer or wholesaler are strictly prohibited.
  3. New Balance Products may not be sold from a location outside the physical boundaries of the approved store location without prior written consent from New Balance or unless an agreement is reached between the parties.
  4. Unless otherwise agreed the Customer shall obtain the prior written consent of New Balance prior to selling New Balance Products via email, the internet, mail order or other direct selling methods.
  5. If a Customer sells or offers to sell New Balance Products to or purchase or offer to purchase New Balance Products from outlets that have not been approved by New Balance, New Balance may upon the provision of notice (at its sole discretion and at any time) close the Customer's account.

Internet Dealer Policy Agreement

  1. In clauses 12 and 13 the following definitions apply:
    Definitions In this Internet Dealer Policy agreement, unless the context indicates otherwise:
    the expression: means:
    Approved Materials as defined in clause 13(f)
    B+M Retailer a dealer who maintains and operates a ‘bricks and mortar’ retail store
    Internet Dealer Application Form the form you submit or the last for you submitted to apply to become an approved New Balance Internet Dealer
    Published Policies policies notified to you, as introduced and amended from time to time
    We, Us, Our New Balance Australia Pty Ltd ACN 003 049 296
    You, Your the applicant/persons named in this Application for Commercial Credit Account Form/Internet Dealer Policy Agreement

  2. This Internet Dealer Policy Agreement sets out the terms and conditions that apply to retailers who sell New Balance Products via the internet.
    (a) Authorisation i. You must not sell New Balance Products via the internet unless we have approved (in our sole discretion) your Internet Dealer Policy Agreement/Application Form and our Sales Manager has provided you with written authorization for you to sell via the internet. ii. Any B+M Retailer, catalogue or other dealer of New Balance Products which sells on the internet without authorization as required by clauses 13(a)i. is subject to termination or suspension of its right to sell New Balance Products.
    (b) E-commerce website Your internet sales and online marketing must only be conducted from a website at the domain name as nominated by you in your New Balance Application for Commercial Credit Account and/or in your separate Internet Dealer Policy Agreement document. Your website must: i. be designed to a standard that New Balance considers appropriately professional; ii. prominently state that New Balance and the relevant New Balance trademarks are our sole property and may not be used without our prior written agreement; iii. prominently state that you are an independent retailer and that your website is not owned or operated by New Balance; iv. include complete, up-to-date, legally compliant customer service policies, including shipping and returns policies, contact information, warranty information and terms and conditions of sale; v. be hosted with a business grade hosting provider with a written service level agreement providing at least 99.9% uptime; vi. provide shopping cart, checkout and payment processing functionality that is secure and CISP/PCI compliant; vii. express all prices in Australian dollars; viii. include a privacy policy that conforms to the requirements of clause 13(g); and ix. not contain any of our trademarks, brand names, model/style names or model/style numbers in its URL
    (c) Sales and marketing i. All marketing that you conduct online or in connection with your website must be generally targeted to Customers in Australia. ii. You will do all things reasonably necessary to ensure that your online advertising is not displayed to Customers outside of Australia. iii. If you are a B+M Retailer, you must ensure that any in-store promotions are offered on your website and vice versa. iv. You must not knowingly sell or ship New Balance Products to Customers located outside of Australia whether directly or indirectly. You must refer to us all enquiries and orders you receive from Customers located outside of Australia.
    (d) Service standards You must: i. list a telephone contact number on your website and be contactable on that number during business hours; ii. if you are not a B+M Retailer, the telephone number that you list must be a national toll free number; iii. respond to Customer enquiries received online or electronically within 1 business day of receipt; iv. provide Customers with electronic confirmation of online orders within one business day of receipt; New Balance Australia Pty Ltd ABN 65 003 049 296 47 Wangara Road, Cheltenham VIC 3192 Tel. 03 9582 5555 2 v. process all online orders within one business day of receipt; and vi. not charge a Customer’s credit card until the order has been shipped.
    (e) Catalogue and inventory i. All New Balance Products offered for sale on your website must be displayed: a. in a manner that is clear, professional and searchable; b. with comprehensive product information in accordance with our then current catalogues and publications; and c. using only Approved Materials. ii. You must: a. regularly update your website to ensure that new styles and Products are listed and to remove discontinued Products; b. maintain adequate inventory of New Balance Products listed on your website to ensure orders can be fulfilled and to minimise out-of-stock merchandise; and c. not offer for sale or take orders for any New Balance Products that are not held and fulfilled from your own warehouse.
    (f) Approved Materials i. ‘Approved Materials’ means any promotional artwork, graphics, banners, logos or other media that we approve and make available to our Internet Dealers, from time to time. ii. You may only use Approved Materials for the purpose of promoting New Balance Products on your website. iii. Your use of Approved Materials must comply with New Balance Trade Mark and Branding Policy Manual as amended or replaced from time to time. iv. You must not: a. make any changes to Approved Materials without our prior written consent; b. use Approved Materials in a manner that is likely to expose us to the risk of legal liability (civil or criminal); or c. use any other of our intellectual property rights, including our name, logo, trademarks, copyright or get-up without our prior written consent. v. We may make changes to Approved Materials at any time and you must comply with any direction we give you in relation to the use or discontinuance of use of Approved Materials.
    (g) Privacy i. You must have an online privacy policy which complies with the Privacy Act 1988 (‘Privacy Act’) as amended. ii. If we request it, you must: a. ‘opt in’ to the operation of the Privacy Act; and b. adopt an approved privacy code. vi. You must comply with the Privacy Act (including the Australian Privacy Principles contained in it) even if you are not obliged to at law and even if we have not requested you to opt in to it under clause 13(g)ii.
    (h) Internet Dealer obligations i. You must: a. comply with our reasonable directions; b. act lawfully, honestly and professionally; c. act ethically and in a manner that does not bring us or New Balance Products into disrepute; d. not sell or offer for sale New Balance Products on any third party website, including any third party shopping, auction or catalogue website; e. comply with all applicable laws (including, without limitation the Australian Consumer Law), regulations and industry codes of practice; f. maintain a sound credit standing with us and our affiliates to our absolute satisfaction; g. meet minimum sales levels as advised by us; h. comply with any of our Published Policies which we have the right to amend and update from time to time; and i. cooperate and do all things reasonably required by us to investigate any complaint or breach or potential breach of this agreement, a Published Policy or any applicable law, regulation or industry code of practice; and ii. Your obligations set out in this clause 13(h) are in addition to those contained in the rest of this policy and those imposed by law.
    (i) Audit and inspection i. We may conduct remote and onsite audits and inspections of your website and e-commerce operations to verify compliance with this policy. You must provide us with all reasonable assistance and cooperation, including provision of data and information we reasonably request. ii. If we request it, you must provide us with regular reports of your website key performance indicators, including total visitors, total visits, total orders, total net sales revenue, Products orders and other statistical and analytics information that we reasonably specify.
    (j) Revocation of authorization We may revoke your authorisation to market and sell New Balance Products via the internet: i. immediately where: a. you become or threaten to become insolvent; b. you breach clause 13(h) of this agreement; or c. you breach any other provision of this agreement and fail to remedy the breach within 7 days after receiving written notice detailing the breach and requiring its remedy; or ii. otherwise, on 30 days’ written notice.
    (k) Policy changes We may amend this policy at any time by giving you written notice. Amendments will not operate retrospectively.

Payment Terms

  1. Products invoiced between the 1st and the 19th of the month for Products supplied on credit will be charged as current month and are due for payment no later than the 25th day of the month following the invoice date or such date as is otherwise agreed in writing.

  2. Products invoiced between the 20th and the 31st of the month for Products supplied on credit will be forward charged and are due for payment no later than the 25th day of the second month following the invoice date or such date as is otherwise agreed in writing.

  3. Payment of invoices billed on a current month statement is due in the New Balance Head Office no later than the 25th of the month following the current statement month or such date as is otherwise agreed in writing. Customers must send New Balance a remittance advice identifying invoices being paid at the time of making payment.
  4. Unless otherwise agreed between the parties, payment shall be made without any set-off, counterclaim or deduction of any kind.
  5. Payment made by Credit Card may be subject to a surcharge of not less than 1% (New Balance accepts Mastercard and Visa cards only)

Goods and Services Tax

  1. In clauses 20 to 22, words that are defined in A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as their definition in that Act.
  2. Except as otherwise provided by this clause, all consideration payable under this Agreement in relation to any supply is exclusive of GST.
  3. If GST is payable in respect of any supply made by a supplier under this Agreement, subject to clause 22 the recipient will pay to the supplier an amount equal to the GST payable on the supply at the same time and in the same manner as the consideration for the supply is to be provided under this Agreement.
  4. The supplier must provide a tax invoice to the recipient before the supplier will be entitled to payment of the GST payable under clause 21. 3

Defaults

  1. Should the Customer fail to pay an account by the due date:
    (a) New Balance may charge interest on any overdue invoice at the penalty rate fixed under the Penalty Interest Rates Act 1983 (VIC), calculated and payable daily, compounded from the due date until the invoice is paid in full;
    (b) Any discounts that apply (off-invoice discount and settlement discount) will be disallowed if payment is not received on or before the date required in accordance with these terms. Any disallowed discounts will be due and payable immediately;
    (c) Where any part of the trading account has not been paid within the time specified in this agreement and has fallen into arrears then the totality of the account whether or not in arrears shall become immediately due and payable;
    (d) The Customer’s account may at New Balance’s discretion be subject to suspension of supply of Products or permanent closure upon the provision of 48 hours notice;
    (e) New Balance may take legal action to recoup debt which is likely to result in the closure of the account; and
    (f) The Customer shall also be liable to pay all reasonable costs and expenses to New Balance on demand (including without limitation all legal costs on a solicitor/own client basis) and all mercantile agents fees incurred by New Balance in recovering any amounts outstanding.
  2. Where any person has a financial interest in two or more New Balance Accounts (“Inter-Related Accounts”) and any one of the inter-related accounts fails to observe these trading terms then all inter-related accounts shall be subject to suspension of supply and account cancellation procedures and invoices rendered to all Inter-Related Accounts shall become immediately due and payable.
  3. An account may be subject to suspension or closure if the Customer breaches these trading terms or where any other guidelines or policies issued from time to time are not observed.
  4. Any account together with any inter-related account will be immediately and permanently closed if in New Balance’s sole opinion the Customer: (a) sells or offers to sell or purchases counterfeit New Balance Products; (b) engages in deceptive or illegal conduct that has an adverse effect on New Balance; or (c) on-sells or supplies New Balance Products to or purchases New Balance Products from non-approved outlets.
  5. Should an account be closed, New Balance may immediately reclaim any advertising or point-of-sale material incorporating New Balance trade marks or other New Balance intellectual property that has previously been supplied and the Customer irrevocably grants permission for New Balance servants and agents to enter its premises to reclaim such material and where a retention of title claim in favour of New Balance exists, to take possession of any Product.

Intellectual Property

  1. (a) The Customer acknowledges that all intellectual property rights relating to the Products and all materials (including without limitation promotional and technical literature, advertising and point of sale material) supplied by New Balance to the Customer (“Materials”), belong to New Balance or its licensors and the Customer will do nothing to contest or dispute such ownership. The Customer will: i. only use any of New Balance’s intellectual property rights or technical knowledge and information provided to it by New Balance for the purpose(s) expressly agreed by New Balance in writing; ii. recognise, safeguard and protect the intellectual property rights of New Balance and the manufacturers of the Products and will not infringe them or allow them to be infringed.
    (b) To the extent that it is necessary, the Customer hereby assigns to New Balance all right, title and interest in the intellectual property rights developed by it relating to the Products. Nothing contained in these trading terms is to be construed as granting the Customer any right, licence, ownership or interest in any intellectual property rights belonging to New Balance.
    (c) Should New Balance cease supply to the Customer, or at any other time on request of New Balance, the Customer will: i. discontinue the use of any of New Balance’s intellectual property rights; and ii. immediately return to New Balance all Materials, and the Customer irrevocably grants New Balance permission for it or its representatives to enter the Customer’s premises for the purposes of reclaiming such materials.

Payment Before Delivery Sales
29. For Payment Before Delivery Sales, full payment in the form of cleared funds must be received and verified by New Balance prior to delivery of Products being made. New Balance shall at all times and at its sole discretion have the right to supply Products on a payment before delivery basis and not offer credit irrespective of whether credit has been previously provided.

Prices
30. The Customer acknowledges and accepts that all prices quoted in the New Balance price list and catalogues are subject to change with 48 hours notice notice. New Balance reserves the right to invoice Products supplied to the Customer at the revised prices provide the appropriate notice has been issued.

Freight and Administrative Charges
31.
(a) New Balance shall bear all freight costs of delivering Products to the Customer where the Customer’s place of business is situated within a metropolitan area. A non-metropolitan store is classed as any store outside of the metropolitan area of all capital cities, which is determined by the additional charges passed onto New Balance by our nominated freight company.
(b) Deliveries outside the metropolitan area shall incur a delivery fee per delivery as advised by New Balance to the Customer from time to time.
(c) New Balance shall not be liable for freight costs on any Products returned to it by the Customer where a Return Authorisation Number (“RA No.”) has not been arranged prior to return.
32. Where Customer orders are below a minimum commercial value determined by New Balance then New Balance will also levy an administration fee for each delivery. The minimum commercial value and administration fee will be advised by New Balance and may be varied from time to time without prior notice being required.

Customer Returns
33. The following rules apply in order for Customers returns claims to be accepted:
(a) The return of Products will not be accepted without prior authorisation from New Balance or its authorized representative and for this to occur a New Balance Return Authorisation Number (RA No.) must be obtained before returning any product (including faulty product) by contacting the Customer Service Department on 03 9582 5555 or freecall 1800 654 512;
(b) Returns of unpacked Products will not be accepted;
(c) In the event that New Balance authorises a return of Products, no claim for the same shall be considered unless: i. the Products are returned in the original packaging and in good order and condition; ii. All price stickers, security devices or other non-New Balance labelling must be removed otherwise returns will not be accepted or a charge for removal will apply; iii. The Products are accompanied by documentation showing: A. The Customer’s name, address and account number/code; B. The respective New Balance invoice number; C. Reason for return; and D. The New Balance RA No.; 4
(d) Unauthorised or unacceptable returns may be returned to the Customer at the Customer’s expense;
(e) Special Make-Up Orders and Custom Product Orders may not be returned;
(f) Customers must return Products only by New Balance’s nominated carriers, otherwise freight will not be paid by New Balance;
(g) All returned Products shall be subject to an inspection by New Balance or an authorised agent of New Balance, before any claim will be considered;
(h) Acceptance of the returned Products by New Balance shall not constitute any acceptance of any claim; and
(i) New Balance reserves the right to raise credits at the lowest invoiced prices if original invoice details are not provided.

Other Claims
34. Short Delivery claims (where product is short delivered within the carton/s to the invoiced quantity) must be fully documented quoting the respective New Balance invoice number and forwarded to the New Balance Customer Service Department within 14 days from the date of delivery of Products to the Customer by New Balance failing which all short delivery claims are time barred and the delivery deemed accepted.
35. Non Delivery claims (when a full or part consignment has not been delivered to the invoiced quantity) must be fully documented quoting the respective New Balance invoice number and forwarded to the New Balance Customer Service Department within 45 days from the date of invoice.
36. Incorrect pricing claims relating to either price, freight or administration charges, the Customer must advise New Balance of any such claims within 45 days of the invoice date in order for these claims to be considered.
37. All claims will be subject to investigation before a decision is made and any rejections by New Balance will be communicated to the Customer.

Cancellation of Orders
38. The following shall apply in relation to the cancellation of orders:
(a) Orders placed with New Balance by the Customer shall not be cancelled without prior written approval of New Balance;
(b) A request for cancellation will not be considered unless made in writing by the Customer to New Balance and received by New Balance not less than forty five (45) days prior to the scheduled delivery date;
(c) Unless otherwise agreed between the parties Special Make-Up Orders and Custom Product Orders may not be cancelled; and
(d) In the event that New Balance accepts the cancellation of an order New Balance shall be entitled to charge any reasonable fees for the cost of work and materials and/or any administration costs incurred by New Balance in preparing the order.

Limitation of Liability
Loss or Damage in Transit
39. New Balance is not responsible to the Customer or for any loss or damage to Products during transit caused by any event of any kind by any person (whether or not New Balance is legally responsible for the person who caused or contributed to that loss or damage). New Balance may provide the Customer with such assistance as may be necessary to press claims on carriers provided that the Customer: (i) has notified New Balance and the carriers in writing immediately after loss or damage is discovered on receipt of Products; and (ii) lodges a claim for compensation on the carrier within three (3) days of the date of receipt of the Products.

Exclusion and Limitation of Liability
40. Except as provided in these terms, and to the extent permitted by law, all express and implied warranties as to the supply of Products are expressly excluded. New Balance is not liable to the Customer for any physical or financial injury, loss or damage or for direct, indirect or consequential loss or damage of any kind arising out of or in relation to the supply of the Products by New Balance or arising out of any act or omission by New Balance, its employees, servants and agents. Notwithstanding anything to the contrary contained in these terms, New Balance’s liability is expressly limited to at New Balance’s discretion to either the replacement of the Products or the cost of obtaining equivalent Products.

Retention of Title
41. The Customer agrees that all Products supplied by New Balance to the Customer shall remain the property of New Balance and property in all Products supplied shall not pass to the Customer until such time as New Balance has: (a) been paid in full for all Products supplied, regardless of who is obligated to pay New Balance for the suplied Products; and (b) received payment of all other sums that are owing by the Customer to New Balance; and (c) the moneys owing referred to in (a) and (b) above have been collected and cleared by New Balance.
42. Where New Balance has not been paid in full for any Products supplied to the Customer and/or in full for any other amounts which are due for payment by the Customer to New Balance, then (a) the Customer shall hold any such Products which it has been supplied by New Balance upon trust and as a fiduciary for New Balance and shall store and identify all such Products in a manner that clearly shows New Balance’s ownership thereof; (b) the Customer must not sell any Products supplied without the prior written consent of New Balance or except in the ordinary course of the Customer’s business; (c) the Customer shall have no right or claim to any right or interest in the Products to secure any liquidated or unliquidated debt or obligation that New Balance owes or may owe to the Customer; (d) the Customer may not claim any lien over the Products; (e) the Customer agrees that it shall not create any absolute or defeasible interest in the Products in relation to any third party except as may be authorised by New Balance; and (f) without prejudice to New Balance’s rights as an unpaid Seller or any of its other rights or remedies to retake possession of New Balance Products from the Customer, the Customer hereby agrees to deliver up Products to New Balance upon demand by New Balance and otherwise agrees that New Balance may recover possession of the Products at any site owned, possessed or controlled by the Customer and the Customer agrees that New Balance has an irrevocable licence to do so.
43. Where: (a) title has not passed to the Customer in Products supplied by New Balance to the Customer; and (b) those Products are sold to a third party by the Customer, then the proceeds of such a sale by the Customer, to the extent that they are deemed to equal in dollar terms to the amount owing by the Customer to New Balance on any account at the time of receipt of such proceeds, shall be held upon trust by the Customer for New Balance in a separate account until such time as full payment is made of all amounts owing by the Customer to New Balance.
44. The Customer agrees to indemnify and hold harmless New Balance against all loss and damage incurred or sustained by New Balance as a result of or in relation to the exercise of New Balance’s retention of title rights.
45. Clauses 41 to 44 above shall apply in respect of any Products supplied by New Balance to an inter-related account of a Customer where the interrelated account is in default (see clause 24).

Force Majeure
46. If for any reason beyond the control of New Balance including without limitation as a result of any strike, trade dispute, fire, tempest, theft or breakdown, orders cannot be filled at the time stipulated by the Customer, New Balance shall (at its sole discretion and without prejudice to the rights of New Balance to recover any sums owing to it in respect of deliveries made provided prior to the date of such determination) be entitled to either: (i) cancel any order for Products placed by the Customer with New Balance; or (ii) determine any contract between New Balance and the Customer that may have arisen by reason of the operation of these terms; or (iii) determine any trading account. The Customer shall have no 5 claims for damages arising out of any such cancellation and/or determination whether or not the Customer receives notice of any such cancellation and/or determination.

Change of Ownership
47. The Customer shall give written notice to New Balance within seven (7) days of any change of ownership or control of the Customer. The Customer hereby agrees to indemnify and keep indemnified New Balance against any loss, damage, cost or expense incurred by New Balance as a result of the Customer’s failure to notify New Balance of any such change of ownership and/or control. New Balance reserves the right to vary any Customer order, hold or discount entitlements upon any change of ownership or control of the Customer.

Lien
48. The Customer hereby irrevocably grants New Balance a general and specific lien and pledge over any and all Products belonging to the Customer which are in New Balance’s possession from time to time to secure payment of any amounts due and payable under these terms.

General
Minimum Spend
49. Unless otherwise agreed between the parties the Customer hereby agrees that it will use its best endeavours to satisfy a yearly (New Balance Accounting Months January to December) minimum spend of $20,000 (net of any discounts).
50. In the event the yearly minimum spend is not satisfied by the Customer, New Balance reserves the right to close the Customers account upon the provision of 48 hours notice.

Bank Guarantee
51. New Balance reserves the right to request and the Customer hereby agrees to provide a bank guarantee upon request, prior to the provision of credit under this agreement.

Reports
52. New Balance reserves the right to request and the Customer hereby agrees to provide copies of financial reports relevant to the financial status of the Company on an ad hoc basis to assist with the assessment of continuing supply and provision of credit.

Variation of Terms
53. New Balance reserves the right to vary all or any of these terms upon 14 days written notice to the Customer. Clerical errors are subject to correction without notification.
54. Within 14 days of the date of the notice the Customer must notify New Balance if it does not agree to the variation, failing notification within this time the Customer is deemed to have accepted the variation.

Notices
55. Unless otherwise agreed in writing you agree: (a) Any notice by one party to the other shall be sufficiently served if served personally or by facsimile transmission or if posted by prepaid post to the party to be served at the registered office of such party or its last known place of business and shall be deemed to have been received within two (5) days of the date of posting if served by post and immediately upon transmission if served by facsimile transmission, and (b) That in addition to any other means permitted by law, any documents, notifications or court proceedings may be given or served upon you, your successors and permitted assignees in the same manner as any notice or document may be given under Part 8.5 of the Personal Property Securities Act (2009) (“PPSA”) and shall be deemed so given or served

Waiver
56. No waiver of these terms shall be valid and operate unless such waiver is in writing and signed by authorised representatives of the Customer and New Balance.

Severance
57. If any provision of this Agreement is found to be invalid or unenforceable then it is deemed to be severed and the remainder of this Agreement shall remain valid and in force.

Entire Agreement and No Merger
58. Unless otherwise agreed in writing, New Balance and the Customer acknowledge that these terms and conditions constitute the entire agreement between them and that the only enforceable obligations and liabilities of New Balance and the Customer in relation to its subject matter. All representations, communications and prior agreements are superseded by these terms and conditions. Where previous terms and conditions have been entered into between the Customer and New Balance, the parties agree that this Agreement shall not act as a merger of their rights but that the terms contained under such previous Agreement shall be amended by the terms contained herein to the extent of any inconsistency.

Jurisdiction
59. These trading terms shall be governed by the laws in force in the State of Victoria and the parties agree that all claims and disputes shall be determined in the Court of competent jurisdiction nearest Melbourne.

PPSA, PMSI and APAAP
60. The Customer hereby grants a charge to New Balance over all and any of your present and after acquired property (“APAAP”) as security for your indebtedness and obligations under this Agreement.
61. For the purposes of section 20(1) and (2) of the PPSA, and to ensure maximum benefit and protection for New Balance under the PPSA, you confirm and agree that you intend to and do grant to New Balance, as security for your indebtedness and obligations, a charge over all of your present and after-acquired property.
62. You agree to do anything that New Balance reasonably requires to ensure that New Balance has at all times a continuously perfected security interest over all of your present and after-acquired property.
63. New Balance may allocate amounts received from you in any manner it determines, but in default will apply same first to payment of any unsecured amount owing to New Balance, next as to any reasonable enforcement expenses and then as to any secured balance owing to New Balance.
64. You agree to reimburse New Balance for all costs and/or expenses incurred or payable by New Balance in relation to registering, maintaining or releasing any financing statement or financing change statement under this Agreement.
65. You will not (except with the written consent of New Balance) allow to be, or be liable to become, perfected or attached in favor of any person, a security interest or transitional security interest in any of the monies from time to payable to New Balance (if any) or otherwise, and whether to a 6 provider of new value or otherwise.
66. You will not (as against any person who is a “related entity “ of you for the purposes of the Corporations Act 2001) without the prior written consent of New Balance, before or until all money payable to New Balance in connection with the Agreement is paid in full: (a) exercise a right of contribution or indemnity; (b) claim the benefit of (for example, by subrogation), or seek priority ahead of, the transfer of or the benefit of a security New Balance holds in connection with this Agreement; (c) try to reduce its liability to New Balance through set off or counterclaim; or (d) prove in competition with New Balance if you are unable to pay your debts when due; (e) seek to perfect or attach in favour of you or another (either jointly or severally) a security interest in any of your present or after acquired property which would rank in priority to the entitlements of New Balance.
67. You waive the right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the security interests under this Agreement.
68. You agree that you and New Balance contract out of and nothing in the provisions of Sections 95, 96, 117, 118, 121(4), 130, 132(3)(d), 132(4), 142 and 143 of the PPSA shall apply to this Agreement.
69. You and New Balance acknowledge that you are the grantor and New Balance is the holder of a Purchase Money Security Interest (“PMSI”) in all Products supplied to you under or in connection with this Agreement by virtue of this Agreement and/ or the PPSA.
70. You and New Balance agree that the terms of this Agreement may be altered unilaterally by New Balance giving thirty (30) days written notice to you.
71. You hereby consent and appoint New Balance to be an interested person and your authorized representative for the purposes of section 275(9) PPSA.
72. New Balance may assign or transfer this Agreement and/ or any security under the PPSA to a related body corporate at any time by notice to you. You must not assign or transfer the benefit or obligations of this Agreement without the prior written consent of New Balance, which New Balance will not unreasonably withhold.

Confidentiality
73. You acknowledge that all pricing information and any other commercially sensitive or confidential information relating to this Agreement is strictly confidential (Confidential Information).
74. Except as stated in this Agreement below or where required by PPSA, the parties to this Agreement are under an obligation to not and must not permit any of their officers, employees, agents, contractors or related bodies corporate to disclose any Confidential Information to any person, other than their professional advisers or as required by law, without the prior written consent of the party to whom the Confidential Information relates.
75. This clause, and clause 73 and 74:
(a) operates for the benefit of all parties; and (b) continues despite the termination of this Agreement.