This agreement sets out the basis on which the Customer purchases the Products for resale from the Supplier and on which the Supplier agrees to sell the Products to the Customer with the Manufacturer having granted to the Supplier certain rights to distribute the Products within the Territory.
1. Definitions and Interpretation
1.1 The definitions and rules of interpretation in this clause apply in this agreement and the Background:
Affected Party: shall take the meaning given to it in clause 18.1.
Agreed Purposes: shall take the meaning given to it in clause 10.1(a).
Brexit: when the United Kingdom ceases to be a member state of the European Union and ceases to be subject to the transition or implementation arrangements provided for by Part 4 of the withdrawal agreement between the UK and the European Union negotiated under Article 50(2) of the Treaty of the European Union which sets out the arrangements for the United Kingdom’s withdrawal from the European Union.
Brexit Notice: shall take the meaning given to it in clause 17.2.
Brexit Trigger Event: means any of the following events whenever occurring at any time as a direct or indirect consequence of Brexit:
(a) an adverse impact on the Supplier’s ability to perform the Contract in accordance with its terms and the law; or
(b) an increase in the costs incurred by the Supplier in performing the Contract since the date of the Contract.
Business Day: any day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Buyer: shall take the meaning given to it in clause 15.1.
Contract: the contract between the Customer and the Supplier for the supply of Products in accordance with these terms.
Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
Customer: means the party, which enters into a Contract with the Supplier to purchase the Products subject to the terms and conditions of this agreement.
Data Discloser: shall take the meaning given to it in clause 10.2.
Data Protection Legislation: shall take the meaning given to it in clause 1.1(c).
Data Recipient: shall take the meaning given to it in clause 10.2.
Force Majeure Event: means any circumstance not within a party's reasonable control including, without limitation acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition; collapse of buildings, fire, explosion or accident; any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on clause 18, or companies in the same group as that party); interruption or failure of utility service; and strictly in the case of the Supplier, failure of a supplier or subcontractor and Brexit Trigger Event.
Intellectual Property: means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world in respect of or in connection with the Product.
Local Regulations: shall take the meaning given to it in clause 8.4.
Loss: means actions, awards, charges, claims, compensation, costs, damages, demands, expenses, fees, fines, interest, liabilities, losses, penalties, proceedings and settlements, and Losses shall be construed accordingly.
Manufacturer: means the party which has supplied the Products to the Supplier.
Order: means a written order sent by the Customer to the Supplier for the supply of the Products, consisting an offer capable of acceptance by the Supplier.
Permitted Recipients: shall take the meaning given to it in clause 10.1(d).
Product: the product which the Manufacturer has granted the certain rights to the Supplier to distribute within the United Kingdom and which are manufactured and packed under the Intellectual Property as detailed within the Order, and Products shall be construed accordingly.
Recipient: shall take the meaning given to it in clause 6.7.
Relevant Requirements: shall take the meaning given to it in clause 9.1(a).
Relevant Terms: shall take the meaning given to it in clause 9.2.
Reserved Territories: means the countries falling outside of the Territory, being those countries and areas in respect of which the Manufacturer has appointed an exclusive distributor or otherwise reserved to itself.
RRP: shall take the meaning given to it clause 3.5.
Shared Personal Data: shall take the meaning given to it in clause 10.1(e).
Supplier: means Race FX Limited, whose registered company number is 05226015 and whose registered office is at RFX House, Challenge Way, Greenbank Technology Park, Blackburn, Lancashire, BB1 5QB.
Supplier Ownership Period: shall take the meaning given to it in clause 4.4.
Term: the term of this agreement, being the period of time throughout which the Customer sells the Products which it purchased from the Supplier.
Territory: means the United Kingdom and Ireland.
Transfer: assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner.
UK Data Protection Legislation: shall take the meaning given to it in clause 10.1(f).
1.2 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.3 References to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. A person includes a corporate or unincorporated body.
1.4 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. A reference to any party shall include that party's personal representatives, successors or permitted assigns.
2. Formation of Contract
2.1 These terms and conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer for the supply of products in accordance with these terms and conditions. The Customer is responsible for ensuring that the Order is complete and accurate.
2.3 The Supplier may reject the Order at its absolute discretion and for any reason whatsoever and the Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order to the Customer, at which point the Contract shall come into existence.
2.4 The Supplier sells to the Customer on a non-exclusive basis and appoints the Customer to sell, market and promote the Products strictly within the Territory on the terms of this agreement.
2.5 The Customer shall refrain from making active sales of the Products to customers in the Reserved Territories. For these purposes, active sales shall be understood to mean actively approaching or soliciting customers, including, but not limited to, the following actions:
(b) direct mail, including the sending of unsolicited emails;
(c) advertising in media, on the internet or other promotions, where such advertising or promotion is specifically targeted at customers in Reserved Territories;
(d) online advertisements addressed to customers in Reserved Territories and other efforts to be found specifically by users in Reserved Territories, including the use of territory based banners on third party websites and paying a search engine or online advertisement provider to have advertisements or higher search rankings displayed specifically to users in Reserved Territories; and
(e) advertising or promotion in any form, or translation of the Customer’s website into a language other than an official language of any country forming part of the Territory, that the Customer would not reasonably carry out but for the likelihood that it will reach customers in Reserved Territories.
2.6 The Customer shall not establish, or maintain any branch, sales outlet or distribution depot in Reserved Territories for the sale of the Products.
3. Customer's Undertakings and Obligations – THE CUSTOMER’S SPECIFIC ATTENTION IS DRAWN TO THIS CLAUSE
3.1 The Customer shall purchase the Products only from the Supplier.
3.2 The Customer undertakes and agrees that it shall not at any time during the Term:
(a) represent itself as an agent of the Supplier for any purpose;
(b) pledge the Supplier’s credit;
(c) give any condition or warranty on the Supplier’s behalf;
(d) make any representations on the Supplier’s behalf;
(e) commit the Supplier to any contracts; or
(f) otherwise incur any liability for or on behalf of the Supplier.
3.3 The Customer 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.
3.4 The Customer 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 and to expand the sale of the Products to all potential purchasers by all reasonable and proper means and not to do anything which may hinder or interfere with such sales;
(b) not do anything which may in the reasonable opinion of the Supplier have an adverse effect on the Intellectual Property subsisting in the Products;
(c) employ a level of staff that are suitably competent, qualified and experienced to properly perform its obligations under this agreement;
(d) keep all stocks of the Product which it holds in conditions appropriate for their storage, and provide appropriate security for the Product, all at its own cost;
(e) restrict other distributors to which it sells the Products from making active sales of the type described in clause 2.5 or otherwise selling the Products outside of the Territory; and
(f) effect and maintain insurance at its own cost with a reputable insurance company in respect of all stocks of the Product as are held by it against all risks which would normally be insured against by a prudent businessman to at least their full replacement value and produce to the Supplier on demand full particulars of that insurance and the receipt for the then current premium.
3.5 The Customer understands that the Supplier may assign Recommended Retail Prices (RRP) to the Products from time to time and where this is the case the Supplier shall provide written notice to the Customer. The Products are premium, quality products and the Intellectual Property subsisting in them carry a high degree of reputation and goodwill and the Customer acknowledges that any such RRPs are designed to protect:
(a) the reputation and goodwill in the Intellectual Property which has been built by the Manufacturer or such other third parties, as the case may be; and
(b) the interest which the Supplier has vested in the reputation and goodwill in that Intellectual Property by virtue of the Supplier holding the certain rights to distribute the Products granted to it by the Manufacturer.
3.6 The Customer agrees that it shall not resell the Products at a price exceeding the maximum resale price from time to time specified by the Supplier in writing.
3.7 At such times as the Supplier requests, the Customer shall:
(a) submit reports to the Supplier, showing details of sales, service stock, orders and any other information relating to the performance of its obligations under this agreement that the Supplier may reasonably require from time to time;
(b) keep full and proper books of account and records showing clearly all enquiries, quotations, transactions and proceedings relating to the Products; and
(c) to allow the authorised representatives of the Supplier or their duly appointed agents to have access to the premises of the Customer at all reasonable times for the purpose of inspecting the aforesaid books and records.
4. Supply of the Product
4.1 Unless otherwise agreed in writing between the parties, the Supplier shall make delivery of the Products FCA (Incoterms 2020) RFX House, Challenge Way, Greenbank Technology Park, Blackburn, Lancashire, BB1 5QB. The Customer shall buy the Product for its own account for resale under this agreement.
4.2 The Supplier shall use reasonable endeavours to make delivery within 7 days of the date of this agreement coming into effect in accordance with clause 2.3 above save that time for delivery of the Products shall not be of the essence.
4.3 The Manufacturer may make changes to the specifications of the Product, which will be passed on by the Supplier provided that the changes do not adversely affect the quality of the Product. The Supplier shall give no less than 1 month’s notice of any changes to Product specifications to the Customer.
4.4 The risk of loss, theft, damage or destruction of the Products shall pass to the Customer on delivery. The Customer shall be solely responsible for the custody of the Products and save that unless otherwise expressly agreed in writing, the Products shall remain the property of the Supplier for the period until all payments of charges under this Agreement have been made in full and unconditionally (Supplier Ownership Period).
4.5 During the Supplier Ownership Period, the Customer shall keep the Products identifiable from all other goods, property and equipment in its possession as bailee for the Supplier.
4.6 The Customer shall give immediate written notice to the Supplier in the event of any loss, accident or damage to the Products arising out of or in connection with the Customer's possession or use of the Products during the Supplier Ownership Period.
4.7 In the event of any resale by the Customer of the Products during the Supplier Ownership Period, the beneficial entitlement of the Supplier shall attach to the proceeds of sale or other disposition thereof so that such proceeds or any claim therefore shall be assigned to the Supplier and until and subject to such assignment shall be held on trust in a separate identified account for the Supplier by the Customer who will stand in a strictly fiduciary capacity in respect thereof. Such sums to the extent that they satisfy any outstanding Fees owed to the Supplier shall be accounted to the Supplier by the Customer within 2 Business Days of their receipt.
4.8 In the event of failure to pay the price in accordance with this Contract, the Supplier shall have the power to enter the premises at which the Products are being held without obstructions and to take back and resell the Products. Such power being additional to (and not in substitution for) any other power of sale arising by operation of law or implication or otherwise and for such purposes the Supplier and its servants and agents may forthwith enter upon any premises or land occupied or owned by the Customer to remove the Products. In the event that the Supplier, its agents or subcontractors are required to take back possession of the Products, the Customer shall indemnify the Supplier in respect of all costs incurred by it in exercising these rights.
5. Supplier's Undertakings
5.1 The Supplier undertakes to:
(a) provide any information and support free of charge that may reasonably be requested by the Customer to enable it to discharge its duties under this agreement properly and efficiently;
(b) approve or reject any promotional information or material submitted by the Customer within 5 Business Days of receipt with the Supplier being deemed to have rejected such promotional material where it does not respond within such timeframe.
6. Prices and Payment
6.1 The price to be paid by the Customer to the Supplier for the Products are unless otherwise agreed in writing, to be the Supplier’s list prices as notified to the Customer by the Supplier from time to time.
6.2 Unless otherwise agreed between the parties, the Supplier requires that the price for the Products be paid in full by the Customer in advance of delivery taking place. Where and to the extent that any credit terms are agreed, the Supplier may issue invoices for the Products from time to time and the Customer shall be required to pay any such invoices to the Supplier in full without any deduction, abatement, counterclaim or set off, and in pounds sterling within 30 days of the date of that invoice issued by the Supplier unless such other date as is agreed between the parties and specified on the relevant invoice.
6.3 Where the Customer fails to make any payment to the Supplier by the due date for payment, the Supplier may charge interest on such overdue sum at a rate of 8% above the base rate of Barclays Bank plc from time to time from the due date for payment until the date on which the payment is made, whether before or after any judgment.
6.4 The Customer may not withhold payment of any amount due to the Supplier because of any set-off, counter-claim, abatement, or other similar deduction. All taxes, charges, levies, assessments and other fees of any kind imposed on the purchase, export or import of the Product shall be the responsibility of, and for the account of, the Customer.
6.5 The Supplier may set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this agreement. If the liabilities to be set off are expressed in different currencies, the Supplier may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by the Supplier of its rights under this clause shall not limit or affect any other rights or remedies available to it under this agreement or otherwise.
6.6 All sums payable under this agreement, or otherwise payable by any party to any other party under this agreement are exclusive of any value added tax (VAT) which may from time to time be chargeable on the supplies for which such sums (or any part of them) are the whole or part of the consideration for VAT purposes.
6.7 Where, under this Contract, any party makes a supply to any other party (the Recipient) and tax is or becomes chargeable on that supply for which the supplying party is required to account to the relevant tax authority, the Recipient shall, subject to the receipt of a valid VAT invoice, be liable to pay the supplying party the amount of such tax, in addition to, and at the same time, as any other consideration for that supply.
7. Advertising and Promotion
7.1 The Customer shall:
(a) display advertising materials and other signs provided by the Supplier;
(b) observe all reasonable directions and instructions given to it by the Supplier for promotion and advertisement of the Product; and
(c) not make any written statement as to the quality or manufacture of the Product without the prior written approval of the Supplier.
7.2 The Supplier shall provide the Customer with information on the advertising and promotion to be carried out by the Customer where it deems it necessary.
8. Compliance with Laws and Regulations
8.1 Each party shall comply with all laws and regulations relating to its activities under this agreement, as they may change from time to time.
8.2 The Customer shall at all times:
(a) provide all assistance reasonably required by the Supplier in connection with the obtaining of any necessary import licences or permits save that the Customer shall be responsible for the payment of any customs duties, clearance charges, taxes, brokers' fees and other amounts payable in connection with the importation and delivery of the Product arising out the sale of the Products to the Customer by the Supplier; and
(b) ensure that any person associated with the Customer in connection with this agreement is engaged on terms equivalent to those imposed on the Customer in clause 8 and clause 9. The Supplier shall be responsible for the observance and performance by such persons of such terms, and shall be directly liable to the Supplier for any breach. For the purpose of this clause 8, a person associated with the Customer includes but is not limited to any agent, delegate or subcontractor of the Customer.
8.3 The Distributor shall give the Supplier as much advance notice as possible of any prospective or actual changes in laws and regulations applicable to the marketing of the Products in the Territory.
8.4 The Distributor warrants to the Supplier that it has informed the Supplier of all laws and regulations affecting the manufacture, sale, packaging and labelling of Products which are in force within the Territory or any part of it (Local Regulations) at the date of this agreement. The Distributor shall give the Supplier as much advance notice as reasonably possible of any prospective changes in the Local Regulations and upon receipt of any notice from the Distributor of a prospective change, the Supplier shall make reasonable commercial efforts to ensure that the Products comply with any change in the Local Regulations as soon as is reasonably possible afterwards.
9. ANTI BRIBERY COMPLIANCE
9.1 Consistent with its general compliance obligations under clause 8, the Distributor shall:
(a) Comply with all applicable laws, statues, regulations and codes relating to anti-bribery and anti-corruption including the Bribery Act 2010 (Relevant Requirements);
(b) Not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(c) Comply with any anti-bribery policy as the Supplier shall have in force from time to time;
(d) Have and shall maintain in place throughout the Term its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with this clause 9 and will enforce them where appropriate;
(e) Notify the Supplier in writing if it becomes aware of any breach of clause 9.1(a) or 9.1(b), or has reason to believe that it or any person associated with it has received a request or demand for any undue financial or other advantage in connection with the performance of this agreement; and
(f) Within 3 months of the date of this agreement, and annually thereafter, certify to the Supplier in writing, signed by an officer of the Distributor, compliance with this clause 9 and all persons associated with it under clause 9.2. The Distributor shall provide such supporting evidence of compliance as the Supplier may reasonably request.
9.2 The Distributor shall ensure that any person associated with the Distributor who is performing services or providing goods in connection with this agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Distributor in this clause 9 (Relevant Terms). The Distributor shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to the Supplier for any breach by such persons of any of the Relevant Terms.
10. DATA PROTECTION
10.1 The following definitions apply in this clause 10:
(a) Agreed Purposes: The performance by each party of its obligations under this agreement, and the promotion of the Products that form the subject of this agreement.
(b) Controller, processor, data subject, personal data, processing and appropriate technical and organisational measures: as set out in the Data Protection Legislation in force at the time.
(c) Data Protection Legislation: the UK Data Protection Legislation and any other legislation relating to personal data and all other legislation and regulatory requirements in force in the UK from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
(d) Permitted Recipients: the parties to this agreement, the employees of each party and any third parties engaged to perform obligations in connection with this agreement.
(e) Shared Personal Data: the personal data to be shared between the parties under this agreement. Shared Personal Data shall be confined to the following categories of information relevant to the following categories of data subject:
(i) The names of current and potential customers;
(ii) The addresses of current and potential customers;
(iii) The email addresses of current and potential customers; and
(iv) The telephone numbers of current and potential customers
(f) UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
10.2 This clause 10 sets out the framework for the sharing of personal data between the parties as controllers. Each party acknowledges that one party (the Data Discloser) will regularly disclose to the other party (the Data Recipient) Shared Personal Data collected by the Data Discloser for the Agreed Purposes.
10.3 Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation, and any material breach of the Data Protection Legislation by one party shall constitute a breach of a material term for the purposes of clause 14.2(a).
10.4 Each party shall:
(a) ensure that it has all necessary consents and notices in place to enable lawful transfer of the Shared Personal Data to the Data Recipient for the Agreed Purposes;
(b) give full information to any data subject whose personal data may be processed under this agreement of the nature such processing. This includes giving notice that, on the termination of this agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;
(c) process the Shared Personal Data only for the Agreed Purposes;
(d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
(e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less demanding than those imposed by this agreement;
(f) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
(g) not transfer any personal data outside of the European Economic Area unless the transferor:
(i) complies with the provisions of Article 26 of the General Data Protection Regulation (in the event the third party is a joint controller); and
(ii) ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 of the General Data Protection Regulation; (ii) there are appropriate safeguards in place pursuant to Article 46 of the General Data Protection Regulation; (iii) Binding corporate rules are in place or (iv) one of the derogations for specific situations in Article 49 of the General Data Protection Regulation applies to the transfer.
10.5 Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:
(a) consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;
(b) promptly inform the other party about the receipt of any data subject access request;
(c) provide the other party with reasonable assistance in complying with any data subject access request;
(d) not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party wherever possible;
(e) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;
(g) at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this agreement unless required by law to store the personal data;
(h) use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;
(i) maintain complete and accurate records and information to demonstrate its compliance with this clause 10; and
(j) provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties' compliance with the Data Protection Legislation.
10.6 The Customer shall indemnify the Supplier against all Losses (including any direct, indirect or consequential Losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier, arising out of or in connection with the breach of the Data Protection Legislation by the Customer, its employees or agents, provided that the Supplier gives to the Customer reasonably prompt notice of such claim, information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it.
11. Intellectual Property – THE CUSTOMER’S SPECIFIC ATTENTION IS DRAWN TO THIS CLAUSE
11.1 The Supplier hereby grants to the Customer the non-exclusive right to use the Intellectual Property in the promotion, advertisement and sale of the Products, subject to, and for the Term of this agreement. Such rights are granted to the Customer by the Supplier as sub-licensee and the Customer acknowledges and agrees that all rights in the Intellectual Property shall remain in the Manufacturer or such other third party as the case may be (and the Supplier to the extent that the same have been granted to it by the Manufacturer), and that Customer has and will acquire no right in them by virtue of the discharge of its obligations under this agreement, except for the right to use the Intellectual Property as expressly provided in this agreement.
11.2 The Products shall be sold under the Intellectual Property and the Customer shall not alter, deface or remove any reference to the Intellectual Property. In the event that the Manufacturer imposes any rules for use of its Intellectual Property, the Supplier shall notify the Customer of this fact and the Customer warrants that it shall comply in every respect with such rules in connection with its performance of its obligations under this agreement.
11.3 The Supplier makes no representation or warranty as to the validity of enforceability of the Intellectual Property nor as to whether they infringe any intellectual property rights of third parties.
11.4 The Customer shall promptly give notice in writing to the Supplier if it becomes aware of:
(a) any infringement or suspected infringement of the Intellectual Property or any other intellectual property rights relating to the Product; or
(b) any claim that any Product or the manufacture, use, sale or other disposal of any Product, whether or not under the Intellectual Property, infringes the rights of any third party.
11.5 In respect of any matter that falls within clause 11.4 the Supplier shall in its absolute discretion, decide what action to take in respect of the matter (if any) and shall conduct and have sole control over any consequent action that it deems necessary.
11.6 The Customer shall, at its own expense, provide any reasonable assistance to the Supplier (including the use of its name in, or being joined as a party to, proceedings) with any action to be taken by the Supplier under this clause 11.
11.7 The Customer shall not use the Intellectual Property as part of the name under which it 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.
11.8 The Customer shall not sub-licence, assign, transfer, charge or otherwise encumber the right to use, reference, or designate the Intellectual Property to any other party except as otherwise expressly permitted under this agreement.
11.9 The Customer shall not do or omit to do anything in its use of the Intellectual Property that could adversely affect their reputation or validity.
11.10Upon termination of this agreement for any reason, the Customer will immediately stop using all or any part of the Intellectual Property.
12. Product Liability AND Product Recall
12.1 The Customer undertakes to maintain appropriate, up-to-date and accurate records to enable the immediate recall of any Products or batches of Products. These records shall include records of deliveries to customers (including batch numbers, delivery date, name and address of customer, telephone number and email address).
12.2 The Customer shall, at its cost, give any assistance that the Supplier shall reasonably require to recall any Products as a matter of urgency.
13. Limitation of Liability – THE CUSTOMER’S SPECIFIC ATTENTION IS DRAWN TO THIS CLAUSE
13.1 Nothing in this agreement shall limit or exclude either party’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 to exclude or restrict liability.
13.2 Subject to clause 13.1:
(a) the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:
(i) loss of profit;
(ii) loss of goodwill;
(iii) loss of business;
(iv) loss of business opportunity;
(v) loss of anticipated saving;
(vi) loss or corruption of data or information; or
(vii) any direct, special or consequential Loss which arises under in connection with this agreement; and
(b) the Supplier's total liability to the Customer in respect of all other Losses arising under or in connection with this agreement and, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total value of the Order to which that liability relates.
13.3 The Customer shall indemnify the Supplier, keep the Supplier indemnified and hold the Supplier harmless from and against any and all Loss arising out of or in connection with the Customer’s breach of this agreement or any act or omission of the Customer under or in connection with this agreement.
14. Term, Termination and Consequences of Termination – THE CUSTOMER’S SPECIFIC ATTENTION IS DRAWN TO THIS CLAUSE
14.1 This agreement shall come into force in accordance with clause 2.3 and remain in force for the Term unless terminated earlier in accordance with clause 14.2 below.
14.2 Save for clause 14.2(l), which for the avoidance of doubt the Customer may not exercise rights in accordance with, 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 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 10 Business Days of being notified in writing to do so; or
(b) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement; or
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or having no reasonable prospect of so doing or (being a partnership) has any partner to whom any of the foregoing apply; or
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other 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 the solvent reconstruction of that other party; or
(f) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or
(g) a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
(i) the other party (being an individual) is the subject of a bankruptcy petition or order or (being a partnership) has any partner whom is the subject of a bankruptcy petition or order; or
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a 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 within 10 Business Days; or
(k) 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 14.2(d) to clause 14.2(j)(inclusive); or
(l) the other party, being an individual, dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation; or
(m) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(n) there is a change of Control of the other party; or
(o) the other party purports to assign its rights or obligations under this agreement (except where otherwise permitted).
14.3 In the event that the Supplier would become entitled to exercise its rights to terminate the agreement in accordance with clause 14.2 above then it may at its absolute discretion but without prejudice to its right to terminate the agreement, impose restrictions on the activities of the Customer together with conditions as to how this may be overcome by the Customer. Such restrictions may without limitation include restraints on the channels through which the Customer may sell the Products;
14.4 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.
14.5 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 Losses in respect of any breach of the agreement which existed at or before the date of termination or expiry.
14.6 On termination the Supplier may exercise a right to buy back from the Customer any or all of the stocks of the Product held by the Customer at the same price as that which the Customer paid the Supplier for them. The Customer shall deliver such Product to the Supplier DDP (Incoterms 2020) RFX House, Challenge Way, Greenbank Technology Park, Blackburn, Lancashire, BB1 5QB within 5 Business Days of receipt of payment for the Product which shall be made by the Supplier within 10 Business Days of the termination or expiry of the agreement.
14.7 The termination or expiry of this agreement shall not of itself make the Supplier liable to pay any compensation to the Customer, including compensation for loss of profits or goodwill.
14.8 All other rights and licences of the Customer under this agreement shall terminate on the termination date.
15. Transfer of the Customer’s Business
15.1 The Customer shall immediately notify the Supplier in writing in the event:
(a) that any third party proposes to or is proposed to acquire or acquires its business (Buyer) and provide the Supplier with the details of the Buyer; or
(b) of a change of Control or any proposed change of Control, in which case the party obtaining Control shall be deemed the Buyer for the purposes of this clause 15.
15.2 The Customer shall procure that any Buyer shall at the election of the Supplier novate, assign or enter into an agreement in identical terms to this agreement immediately following the sale or disposal or change of Control and in any event within 10 Business Days of the sale or disposal or change of Control.
15.3 In the event that the Customer is unable to comply with clause 15.2 above, the Customer agrees that it shall be entitled to exercise any of the rights available to it under clause 14 above.
15.4 The Customer shall indemnify and keep indemnified the Supplier and hold the Supplier harmless in respect of all present and contingent liabilities incurred by the Supplier in connection with the agreement from the date on which the Customer notifies the Supplier in accordance with clause 15.1 above.
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.
17.1 If a Brexit Trigger Event occurs, the Supplier shall be permitted to:
(a) Increase the prices of any products, delivery or otherwise to account for any additional charges, fees, costs or expenses suffered or incurred by it;
(b) Extend any period for delivery by any period of time which for its performance of its obligations is delayed or impaired;
(c) Require the Customer to negotiate in good faith an amendment to this agreement to alleviate the Brexit Trigger Event, in accordance with clause 17.2; and
(d) If renegotiation fails, terminate this agreement in accordance with clause 17.3
17.2 The Supplier may initiate a negotiation under clause 17.1(a) by serving a notice (Brexit Notice) to the Customer giving reasonable details of the relevant Brexit Trigger Event. On delivery of a Brexit Notice:
(a) the parties shall meet either in person or remotely within 7 days of the date of the Brexit Notice and as reasonably necessary thereafter to discuss in good faith amendments to this agreement to alleviate the impact of the Brexit Trigger Event;
(b) the Supplier shall provide information and documents, which in the sole opinion of the Supplier relate to the Brexit Trigger Event, to the Customer provided always that information so disclosed shall be the Supplier’s confidential information for the purposes of clause 16; and
(c) any amendments to this agreement shall be recorded in accordance with clause 21.1.
17.3 If the parties fail to agree a variation in accordance with clause 17.2 within 30 days of the date of the Brexit Notice, the Supplier may, without affecting any other right or remedy available to it, terminate this agreement by giving the Customer not less than 2 weeks’ written notice. On termination under this clause, clause 14 shall apply.
17.4 After delivery of a Brexit Notice, until this agreement is varied under clause 17.2 or terminated under clause 17.3, the parties shall, unless prohibited by law, continue to comply with the terms of this agreement.
17.5 Save as expressly provided in this clause 17, a Brexit Trigger Event shall not terminate or alter (or give any party a right to terminate or alter) this agreement or invalidate any of its terms or discharge or excuse performance under it.
17.6 If there is an inconsistency between the provisions of this clause and any other provision of this agreement, the provisions of this clause shall prevail.
18. Force Majeure
18.1 Provided it has complied with clause 18.2, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
18.2 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
18.3 If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than 3 months, the party not affected by the Force Majeure Event may terminate this agreement by giving 10 Business Days’ written notice to the Affected Party.
19. Entire Agreement
19.1 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.
19.2 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.
20.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
(a) delivered by hand or by airmail, pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to it’s the following email address:
(i) the Supplier: email@example.com; and
(ii) the Customer: the address notified to the Supplier by the Customer in any Order,
or such other senior contact with whom at has become accustomed to correspond in the course of performance of this agreement.
20.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand or airmail, on signature of a delivery receipt or at the time the notice is left or received at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service;
(c) if sent by email, at 9.00 am on the next Business Day after transmission provided that a valid read receipt has been received.
20.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
21.1 Save as otherwise provided for in this agreement, no amendment or variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
21.2 The Customer shall not Transfer any or all of its rights and obligations under this agreement without the prior written consent of the Supplier. The Supplier may Transfer any or all of its rights and obligations under this agreement without the prior written consent of the Customer.
21.3 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.
21.4 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.
21.5 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
21.6 Except as expressly provided elsewhere in this agreement, a person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
21.7 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. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
21.8 This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. No counterpart shall be effective until each party has executed and delivered at least one counterpart.
21.9 No party shall make, or permit any person to make, any public announcement concerning the existence, subject matter or terms of this agreement, the wider transactions contemplated by it or the relationship between the parties 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.
21.10This 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.
21.11Each 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).