Where an exclusive distribution agreement contains a reservation allowing the supplier to distribute directly if a customer is unwilling to deal with the distributor, the supplier is impliedly obliged not to procure or encourage that unwillingness. A party terminating for breach must be ready, willing and able to perform its own obligations at the time of termination; where the other party's prior breach excused performance, the excuse ceases once the breach is withdrawn, and the terminating party must resume performance. Solicitation of a distributor's customers while representing compliance with the distribution agreement may constitute unconscionable conduct under s 21 of the ACL, rendering individual officers personally liable.
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