TERMS AND CONDITIONS
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 15.1.
Business Day: any day other than a Saturday, Sunday or public
holiday in England.
Buyer: shall take the meaning given to it in clause 13.1.
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.
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 this clause, or
companies in the same group as that party); and interruption or
failure of utility service.
Intellectual Property: means copyrights, database rights, trade
marks, trade names, domain names, rights in logos, get-up and
content, inventions, trade secrets, technical information and
know-how, patents, all rights of whatever nature in computer
software and data, all rights of privacy and intangible rights and
privileges of a nature similar to any of the above, in every case
in any part of the world and whether or not registered, and
including all granted or pending registrations, and all rights to
make applications for registration in respect of any of the same
and any further intellectual property subsisting in respect of or
in connection with the Product.
Loss: means charges, claims, costs, damages, demands,
expenses, liabilities and losses.
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.
Product: the products 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.
Recipient: shall take the meaning given to it in clause 6.7.
Relevant Claim: shall take the meaning given to it in clause
10.1. 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.
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.
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.
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 The Customer agrees and acknowledges that any Order for the
purchase of the Products that it places with the Supplier is made
subject to these terms and conditions. The Supplier may issue an
order acknowledgement but the legally binding agreement between
the parties shall not be formed until such time as the Supplier issues
its order acceptance to the Customer.
2.2 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.
2.3 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.
2.4 The Customer shall not establish, or maintain any branch, sales outlet
or distribution depot in Reserved Territories for the sale of the
2.5 The Customer shall not without the Supplier's prior written consent
make any promises or guarantees about the Product beyond those
contained in the promotional material supplied to it by the Supplier.
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 shall not:
(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;
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(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 Product;
(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 it deems to be competent and
experienced to 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 2.3 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
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 EXW (Incoterms 2010) 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 reasonable endeavours to make delivery within 7
days of the date of this agreement coming into effect in accordance
with clause 2.1 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 the
Agreement, 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
(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
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 and 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 judgement.
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
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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
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 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 value added tax 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 be liable to pay the supplying party
the amount of such tax.
7. ADVERTISING AND PROMOTION
7.1 The Customer shall:
(a) display advertising materials and other signs provided by the
(b) observe all reasonable directions and instructions given to it by
the Supplier for promotion and advertisement of the Product;
(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
The Customer shall at all times:
(a) provide all assistance reasonably required by the Customer 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;
(b) comply with all applicable laws, statutes, regulations and codes
relating to anti-bribery and anti-corruption including but not
limited to the Bribery Act 2010 or engage in any activity,
practice or conduct which would be a breach of such laws if
conducted in the UK and immediately report to the Supplier
any actual or potential breach of this clause; and
(c) 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 this clause 8. 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.
9. INTELLECTUAL PROPERTY – THE CUSTOMER’S SPECIFIC ATTENTION IS
DRAWN TO THIS CLAUSE
9.1 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 duration 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
9.2 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.
9.3 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.
9.4 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
(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.
9.5 In respect of any matter that falls within clause 9.4 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.
9.6 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 9.
9.7 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
9.8 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.
10. PRODUCT LIABILITY AND INSURANCE
10.1 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).
10.2 The Customer shall, at its cost, give any assistance that the Supplier
shall reasonably require to recall any Products as a matter of
11. LIMITATION OF LIABILITY – THE CUSTOMER’S SPECIFIC ATTENTION IS
DRAWN TO THIS CLAUSE
11.1 Nothing in this agreement shall limit or exclude either party’s liability
(a) death or personal injury caused by its negligence, or the
negligence of its employees, agents or subcontractors (as
(b) fraud or fraudulent misrepresentation or wilful default; and
(c) any matter in respect of which it would be unlawful to exclude
or restrict liability.
11.2 Subject to clause 11.1:
(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
indirect, special or consequential Loss arising out of or in
connection with any act or omission of the Supplier including
any loss of profit, contract, business, revenue, anticipated
savings, goodwill or reputation; and
(b) the Supplier's total liability to the Customer in respect of all
Losses arising under or in connection with this agreement and
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which is sustained or incurred by the Customer, whether in
contract, tort (including negligence), breach of statutory duty,
or otherwise, shall in no circumstances exceed the value of the
Order to which that liability relates.
11.3 The Customer hereby indemnifies, keeps indemnified and holds
harmless the Supplier 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
12. TERM, TERMINATION AND CONSEQUENCES OF TERMINATION – THE
CUSTOMER’S SPECIFIC ATTENTION IS DRAWN TO THIS CLAUSE
12.1 This agreement shall come into force in accordance with clause 2.1
and remain in force for the Term unless terminated earlier in
accordance with clause 12.2 below.
12.2 Save for clause 12.2(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
(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
(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
(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
(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;
(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 12.1(d) to clause 12.2(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).
12.3 In the event that the Supplier would become entitled to exercise its
rights to terminate the agreement in accordance with clause 12.2
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;
12.4 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.
12.5 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
damages in respect of any breach of the agreement which existed at
or before the date of termination or expiry.
12.6 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 2010) 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.
12.7 All other rights and licences of the Customer under this agreement
shall terminate on the termination date.
13. TRANSFER OF THE CUSTOMER’S BUSINESS
13.1 The Customer shall immediately notify the Supplier in writing in the
(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 13.
13.2 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.
13.3 In the event that the Customer is unable to comply with clause 13.2
above, the Customer agrees that it shall be entitled to exercise any of
the rights available to it under clause 12 above.
13.4 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 13.1 above.
14.1 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 14.2.
14.2 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
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shall ensure that its employees, officers, representatives or
advisers to whom it discloses the other party's confidential
information comply with this clause 14; and
(b) as may be required by law, court order or any governmental or
14.3 No party shall use any other party's confidential information for any
purpose other than to perform its obligations under this agreement.
15. FORCE MAJEURE
15.1 Provided it has complied with clause 15.2, 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
15.2 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
(b) use all reasonable endeavours to mitigate the effect of the
Force Majeure Event on the performance of its obligations.
15.3 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.
16. ENTIRE AGREEMENT
16.1 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.
16.2 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.
17.1 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
(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.
17.2 Any notice or communication shall be deemed to have been
(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
(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
17.3 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.
18.1 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).
18.2 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.
18.3 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.
18.4 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 enforce ability of the rest of this agreement.
18.5 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.
18.6 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.
18.7 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.
18.8 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.
18.9 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
18.10 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.
18.11 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).