The Supplier wishes to appoint the Reseller as its authorised reseller for the promotion and sale of the Products through certain sales channels within the Territory (both as defined below), and the Reseller wishes to promote and sell the Products through those sales channels within the Territory on the terms of this agreement.
1. DEFINITIONS AND INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this agreement and the Background.
Business Day: a day (other than a Saturday, Sunday or public holiday in England) when banks in London are open for business.
Commencement Date: the date of this agreement.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Force Majeure: any circumstances or events beyond a party’s reasonable control including act of God, war, riot, trade embargo, strike, lock-out, trade dispute or labour disturbance, fire, flood, storm or order of local or national government or national authority. Lack of resources will not be deemed a cause beyond a party’s reasonable control.
Online Retail Channels: means any online e-commerce store or auction website, including without limitation www.amazon.com and www.ebay.com, but excluding the Reseller’s own website or any other website agreed in writing by the Supplier.
Products: all products in the range of products specified on the Supplier’s product list and sold under the Trade Mark and any other products sold by the Supplier and which the Supplier may permit the Reseller, by express notice in writing, to resell in the Territory.
Term: the term of this agreement, as determined in accordance with clause 14.
Territory: the United Kingdom.
Trade Mark: the DexShell registered trade mark and any further trade marks that the Supplier may permit, or procure permission for, the Reseller to use in the Territory in respect of the Products by express notice in writing.
Year: the period of 12 months commencing on the Commencement Date and each consecutive period of 12 months thereafter during the Term.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
1.5 Words in the singular shall include the plural and vice versa.
1.6 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.7 A reference to writing or written includes fax and e-mail.
1.8 References to clauses are to the clauses of this agreement.
1.9 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.1 The Supplier appoints the Reseller as an authorised non-exclusive reseller to resell the Products in the Territory on the terms of this agreement.
2.2 The Reseller shall purchase the Products only from the Supplier during the Term.
2.3 The Reseller shall refrain from making active sales of the Products to customers outside the Territory, through any Online Retail Channels or to customers for resale through Online Retail Channels or any other retail operation.
2.4 The Reseller shall not operate any facilities outside the Territory for the sale of the Products. Where the Reseller has retail operations outside of the Territory from which it wishes to sell the Products, it shall notify the Supplier but no such active sales shall be undertaken without the prior written consent of the Supplier and the entry into of a separate reseller agreement in respect of such sales.
2.5 The Reseller shall not:
(a) represent itself as an agent of the Supplier for any purpose; or
(b) give any condition or warranty on the Supplier's behalf; or
(c) make any representation on the Supplier's behalf; or
(d) commit the Supplier to any contracts.
2.6 The Reseller shall not without the Supplier's prior written consent make any promises or guarantees about the Products beyond those contained in the promotional material supplied by the Supplier.
2.7 The Reseller acknowledges and agrees that the Supplier shall be entitled to make sales of the Products in the Territory or to appoint other resellers or agents for the Products.
3. RESELLER'S UNDERTAKINGS
3.1 The Reseller undertakes and agrees with the Supplier that at all times during the Term it will:
(a) use its best endeavours to promote the sale of the Products in the Territory;
(b) establish and maintain service facilities and equipment to fulfil customers’ orders;
(c) not resell the Products at a price exceeding the maximum resale price from time to time specified by the Supplier in writing;
(d) notify the Supplier of any defective Products immediately upon the defect becoming apparent or being notified to the Reseller, whichever is the earlier;
(e) not promote, market, advertise, sell or use any Products in a manner or environment or at quantity levels significantly above prior practice suggesting that the Products are second-rate, low-quality, low-value, unwanted or counterfeit products, and at prices below cost or so far below prior sales practices as to suggest the Products are second-rate, low-quality, low-value, unwanted or counterfeit products (without prejudice to the Reseller's absolute discretion (subject to clause 3.1 (c) to sell the Products at such prices as it may determine).
(f) not sell the Products to, or sell the Products to any customers which the Reseller knows or suspects may resell the Products to, discount stores, flea markets or low quality outlets;
(g) promptly pass to the Supplier all and any complaints of a substantive or recurring nature received in respect of the Products and shall observe the Supplier’s reasonable instructions with regards thereto and shall give such assistance as the Supplier may required; and
(h) inform the Supplier immediately of any changes in ownership or Control of the Reseller, and of any change in its organisation or method of doing business that might be expected to affect the performance of the Reseller's duties in this agreement.
4. SUPPLY OF PRODUCTS
4.1 Before the start of each Year, the Reseller shall notify the Supplier in writing of its forecast of the quantities of each type of Product that it expects to buy from the Supplier for delivery during the ensuing twelve month period beginning on the first day of the Month following the latest date for issue of that forecast.
4.2 The Supplier undertakes to use its reasonable endeavours to meet all orders for the Products forwarded to it by the Reseller in accordance with the Supplier's terms of delivery to the extent the orders do not exceed the forecast for each type of Product given under clause 4.1. The Reseller shall buy the Products for its own account for resale under this agreement.
4.3 On giving one month’s notice in writing to the Reseller, the Supplier may vary its product list as it thinks fit to exclude one or more of the Products from this agreement if the production of such Products is permanently discontinued for any reason.
4.4 The Supplier may make changes to the specifications of the Products, provided the changes do not adversely affect the quality of the Products.
5. SUPPLIER'S UNDERTAKINGS
5.1 The Supplier undertakes to:
(a) provide any information and support that may reasonably be requested by the Reseller to enable it to discharge its duties under this agreement properly and efficiently;
(b) make reasonable commercial efforts to supply the Products to the Reseller for resale in the Territory in accordance with Reseller's forecast requirements.
6. PRICES AND PAYMENT
6.1 The prices to be paid by the Reseller to the Supplier for the Products are to be the Supplier's list prices as notified to the Reseller by the Supplier from time to time.
6.2 The Supplier shall give the Reseller 28 days’ notice of any rises in the prices for the Products.
6.3 Any and all expenses, costs and charges incurred by the Reseller in the performance of its obligations under this agreement shall be paid by the Reseller, unless the Supplier has expressly agreed in advance in writing to pay such expenses, costs and charges.
6.4 The prices for the Products shall be Ex-Works (Incoterms 2010).
6.5 The Reseller shall pay the full amount invoiced to it by the Supplier in pounds Sterling within the period specified for payment on the relevant invoice.
6.6 Neither party may withhold payment of any amount due to the other because of any set-off, counter-claim, abatement, or other similar deduction.
6.7 All sums payable under this agreement, or otherwise payable by any party to any other party under this agreement are exclusive of any VAT, which shall be payable upon receipt of a valid VAT invoice.
7. ADVERTISING AND PROMOTION
7.1 The Reseller shall:
(a) be responsible for advertising and promoting the Products in the Territory (but the Reseller shall not use any advertising materials or promotional literature without the Supplier's prior written consent);
(b) display advertising materials and other signs provided by the Supplier;
(c) observe all directions and instructions given to it by the Supplier for promotion and advertisement of the Products; and
(d) not make any written statement as to the quality or manufacture of the Products without the prior written approval of the Supplier.
7.2 The Supplier shall provide the Reseller with information on the advertising and promotion carried out by the Supplier. The Supplier shall supply any available promotional and advertising material that the Reseller reasonably requests at the cost of the Reseller.
8. COMPLAINTS AND PRODUCT RECALLS
8.1 The Reseller shall promptly pass on to the Supplier any complaints of a substantive or recurring nature which it may receive or any request for information which it may receive concerning the Products. The Reseller shall observe the Supplier’s reasonable instructions with regards thereto and shall, if the Supplier wishes to deal with any such matters itself, give the Supplier any assistance it may request in connection therewith, including the destruction, at the Reseller’s cost, of any Products which breach any third party’s intellectual property rights, or which become illegal to sell or which cannot reasonably be repaired.
8.2 The Reseller shall promptly implement any recall or withdrawal of the Products that may be requested by any competent authority based on a final or binding decision of the competent authority, the Supplier, in accordance with instructions and/or policy statements concerning product recall and withdrawal that the Supplier may issue from time to time. The Reseller’s costs incurred in connection with any such recall or withdrawal, including the cost of the product and the reasonable cost of labour directly associated with the recall or withdrawal, shall be paid by the Supplier.
9. COMPLIANCE WITH LAWS AND REGULATIONS
The Reseller shall perform all of its obligations in compliance at all times with all applicable laws, at its own expense.
10. CONDITIONS OF SALE
The Supplier's conditions of sale in force from time to time shall apply to all sales by the Supplier to the Reseller under this agreement. If there is any inconsistency between those conditions of sale and the terms of this agreement, the latter shall prevail.
11. TRADE MARK
11.1 The Supplier hereby grants to the Reseller the non-exclusive right, in the Territory, to use the Trade Mark in the promotion, advertisement and sale of the Products, subject to, and for the duration of, this agreement. The Reseller acknowledges and agrees that it has and will acquire no right in the Trade Mark by virtue of the discharge of its obligations under this agreement, except for the right to use the Trade Mark as expressly provided in this agreement.
11.2 All representations of the Trade Mark that the Reseller intends to use shall be submitted to the Supplier for approval before use.
11.3 The Reseller shall not, without the prior written consent of the Supplier, alter or make any addition to the labelling or packaging of the Products displaying the Trade Mark. The Reseller shall not alter, deface or remove any reference to the Trade Mark, any reference to the Supplier or any other name displayed on the Products or their packaging or labelling.
11.4 The Reseller shall not apply any trade mark to the Products other than the Trade Mark.
11.5 The Supplier makes no representation or warranty as to the validity or enforceability of the Trade Mark nor as to whether they infringe any intellectual property rights of third parties in the Territory.
11.6 The Reseller shall not sub-license, transfer or otherwise deal with the rights of use of the Trade Mark granted under this agreement.
11.7 The Reseller shall not do, or omit to do, anything in its use of the Trade Mark that could adversely affect its validity.
11.8 The Reseller shall not knowingly or recklessly do or omit to do anything by which the goodwill and reputation associated with the Trade Mark might be diminished or jeopardised.
11.9 Each party shall promptly give notice in writing to the other if it becomes aware of:
(a) any infringement or suspected infringement of the Trade Mark or any other intellectual property rights relating to the Products within the Territory; or
(b) any claim that any Product or the manufacture, use, sale or other disposal of any Product within the Territory, whether or not under the Trade Mark, infringes the rights of any third party.
11.10 In respect of any matter that falls within clause 11.9 the Supplier shall in its absolute discretion, decide what action to take in respect of the matter (if any) and the Supplier shall conduct and have control over any consequent action that is taken.
11.11 Each party shall, at the request and expense of the other, provide any reasonable assistance to the other (including the use of its name in, or being joined as a party to, proceedings) with any action to be taken by the other party under this clause 11.11, provided that that party is given such indemnity as it may reasonably require against any losses, costs and expenses it may incur as a result of or in connection with providing such assistance.
11.12 The Reseller shall not obtain or try to obtain or register for itself anywhere in the world any trade marks or trade names the same as or similar to the Trade Mark.
11.13 The Reseller shall not use the Trade Mark as part of the name under which the Reseller conducts its business, or any connected business, or under which it sells or services any products (except the Products), or in any other way, except as expressly permitted hereunder.
11.14 The Reseller shall not register or attempt to register any domain name incorporating the Trade Mark.
11.15 The Reseller shall not sub-license, assign, transfer, charge, or otherwise encumber the right to use, reference, or designate the Trade Mark to any other party, except as otherwise expressly permitted under this Agreement.
11.16 The Reseller shall, at its expense, take such anti-counterfeiting measures in the Territory as is reasonable and/or as the Supplier requires.
11.17 Upon termination of this Agreement for any reason, the Reseller will immediately stop using all or any part of the Trade Mark.
12. PRODUCT LIABILITY AND INSURANCE
12.1 The Reseller shall defend, indemnify and hold the Supplier harmless from and against any and all judgements, penalties, losses, costs, damages and resulting expenses, including legal fees, arising out of or in connection with claims made by third parties and liabilities arising out of or in connection with any act under or in violation of this agreement by the Reseller, its owners, officers, directors, employees, agents, affiliates, subsidiaries, or other persons or the employees or agents of any of the foregoing or of the Reseller including (without limitation) the distribution, exploitation, advertising, sale, or use of Products by any of them.
12.2 Subject to the Reseller fulfilling all the conditions in this clause 12, the Supplier shall indemnify the Reseller against any liability incurred by the Reseller in respect of damage to property, death or personal injury arising from any fault or defect in the materials or workmanship of the Products and any reasonable costs, claims, demands and expenses arising out of or in connection with that liability (Relevant Claim), except to the extent the liability arises as a result of the action or omission of the Reseller.
12.3 The Reseller shall, as soon as it becomes aware of a matter which may result in a Relevant Claim:
(a) give the Supplier written notice of the details of the matter;
(b) give the Supplier access to and allow copies to be taken of any materials, records or documents as the Supplier may require to take action under clause 12.3(c);
(c) allow the Supplier the exclusive conduct of any proceedings and take any action that the Supplier requires to defend or resist the matter, including using professional advisers nominated by the Supplier; and
(d) not admit liability or settle the matter without the Supplier's written consent.
13. LIMITATION OF LIABILITY
13.1 Nothing in this agreement shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation; and
(c) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
13.2 Subject to clause 13.1:
(a) the Supplier shall under no circumstances whatever be liable to the Reseller, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
(i) any loss of profit, revenue, or anticipated savings; or
(ii) any loss that is an indirect or secondary consequence of any act or omission of the Seller; and
(b) the Supplier's total liability to the Reseller in respect of all loss or damage arising under or in connection with this agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total amount paid to the Supplier in the 12 months immediately prior to the relevant loss or damage occurring.
14. COMMENCEMENT, DURATION AND TERMINATION
This agreement begins on the Commencement Date and, subject to clause 14.1, and clause 14.2, shall continue indefinitely until terminated by either party giving at least one month’s prior written notice.
14.1 Without affecting any other rights that it may be entitled to, either party may give notice in writing to the other terminating this agreement immediately if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified to make such payment; or
(b) the other party commits a breach of any material term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days of being notified to do so; or
(c) the other party enters into any arrangement with its creditors or has any receiver, administrative receiver, administrative or manager appointed over all or any of its undertaking or assets or is unable to pay its debts within the meaning of section 123 Insolvency Act 1986;
(d) a petition is filed, a notice is given, a resolution is passed, or any order is made, for or in connection with the winding up of that party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or a solvent reconstruction of that other party; or
(e) a creditor or encumbrancer of the other party attaches or takes possession of, or distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged with 14 days; or
(f) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.1(c) to 14.1(e)
(g) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(h) the other party, being the Reseller, is suspected of participating in any acts of counterfeiting or acts connected to counterfeiting.
14.2 This agreement will terminate immediately if the Supplier is no longer entitled to grant to the Reseller the rights contained herein.
15. CONSEQUENCES OF TERMINATION
15.1 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
15.2 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
15.3 On termination:
(a) the Supplier shall have the option to buy from the Reseller any stocks of the Products at the same price the Reseller paid for them. To exercise the option, the Supplier must give notice to the Reseller within twenty days of termination, stating the quantities of Products it wishes to buy. The Reseller shall deliver such Products to the Supplier within seven days of receiving the Supplier's notice, and the Supplier shall pay for the Products in full within thirty days of their delivery. The Reseller shall be responsible for the costs of packaging, insurance and carriage of the Products;
(b) if the Supplier chooses not to exercise its option to buy back the Products under clause 15.3(a), or purchases only part of the Reseller's stocks of Products, the Reseller may for a period of three months following termination of this agreement, resell any stocks of the Products that it may have in store or under its control at the time. At the end of this period the Reseller shall promptly return all remaining stocks of the Products to the Supplier at the expense of the Reseller, or dispose of the stocks as the Supplier directs;
(c) if the Supplier chooses to buy back the Products under clause 15.3(b), or when the three month period under clause 15.3(b) expires, the Reseller shall at the Supplier's option promptly destroy or return all samples, technical pamphlets, catalogues, advertising materials, specifications and other materials, documents or papers that relate to the Supplier's business that the Reseller may have in its possession or under its control (other than correspondence between the parties); and
(d) the termination of this agreement shall not of itself make the Supplier liable to pay any compensation to the Reseller, including, for loss of profits or goodwill.
15.4 Subject to clause 15.3, all other rights and licences of the Reseller under this agreement shall terminate on the termination date.
15.5 The Supplier may cancel any orders for Products placed by the Reseller before termination if delivery would fall due after termination, whether or not they have been accepted by the Supplier. The Supplier shall have no liability to the Reseller in respect of such cancelled orders.
16.1 Each party undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as provided by clause 16.2.
16.2 Each party may disclose the other party's confidential information:
(a) to those of its employees, officers, representatives or advisers who need to know such information for the purpose of carrying out the party's obligations under this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 16; and
(b) as may be required by law, court order or any governmental or regulatory authority.
16.3 No party shall use any other party's confidential information for any purpose other than to perform its obligations under this agreement.
16.4 Each party shall have in place industry-standard policies, procedures, training programmes and draft confidentiality agreements so as to ensure that its employees are able to identify and label confidential information disclosed by the other party and deal with it in accordance with the obligations imposed under this clause 16. Each party will upon reasonable written notice disclose to the other on a regular basis details of its policies, procedures and standard documents relating to confidentiality.
17. FORCE MAJEURE
Neither party will be liable for any failure of or delay in the performance of its obligations under this agreement for the period that the failure or delay is due to Force Majeure. Each party shall notify the other party promptly of the occurrence of any such cause and shall carry out the affected performance as promptly as practicable after the cause of the problem is alleviated. It is understood, however, that the occurrence of a Force Majeure event will not in any case cause an extension of the Term.
18. ENTIRE AGREEMENT
18.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
18.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
Subject to clause 4.3, no amendment or variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
20. ASSIGNMENT AND OTHER DEALINGS
This agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement without the prior written consent of the other party.
21. FREEDOM TO CONTRACT
The parties declare that they each have the right, power and authority and have taken all action necessary to execute and deliver and to exercise their rights and perform their obligations under this agreement.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
Any notice required to be given pursuant to this agreement shall be in writing and shall be given by delivering the notice by hand at, or by sending the same by prepaid first class post (airmail if to an address outside the country of posting) to the address of the relevant party set out in this agreement or such other address as either party notifies to the other from time to time. Any notice given according to the above procedure shall be deemed to have been given at the time of delivery (if delivered by hand) and when received (if sent by post).
25. THIRD PARTY RIGHTS
A person who is not a party to this agreement shall not have any rights to enforce any term of this agreement.
26. NO PARTNERSHIP OR AGENCY
Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
This agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
29. GOVERNING LAW
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
31. RETURNS AND CANCELLATIONS
Once your order is dispatched or delivered we do not accept returns or cancellations, unless you find products are defective due to manufacturing fault or if products are incorrect to your order. Any products found to be defective need to be communicated to us within 7 days.