(1) [COMPANY], a limited company incorporated in England and Wales (registration number [number]) having its registered office at [address]] (the “Supplier”); and
(2) [COMPANY NAME], a [limited company] incorporated in England and Wales (registration number [number]) having its registered office at [address] (the “Distributor”).
(A) The Supplier supplies the Products, and the Supplier wishes to appoint the Distributor as its non-exclusive distributor of the Products in the Territory on the terms of this Agreement.
Definitions and interpretation
1.1 In this Agreement:
“Affiliate” means a company, firm or individual that Controls, is Controlled by, or is under common Control with the relevant company or firm;
“Agreement” means this agreement (including the Schedule) and any amendments to it from time to time;
“Business Day” means any week day, other than a bank or public holiday in England;
“Contract” means a contract between the parties for the supply of Products;
(a) the legal power to directly or indirectly control the management of a company, firm or other entity;
(b) the right to select the majority of the directors (or their equivalent) of a company, firm or other entity; and/or
(c) ownership of more than 50% of the voting shares in a company;
and “Controlled” will be construed accordingly;
“Effective Date” means the date of execution of this Agreement;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Minimum Term” means the period specified as such in the Schedule;
“Order” means a request for Products issued by the Distributor to the Supplier;
“Prices” means the Supplier's standard distributor-specific list prices for the Products as published on the Supplier's website from time to time / as annexed to this Agreement and varied by the agreement of both parties from time to time;
“Product Liability Claim” means any claim, dispute and/or proceedings resulting from or arising in connection with any death, personal injury or damage to property caused in whole or part by a failure of the Products to comply with the warranties in Clause 11;
“Products” means the products which are purchased by the Distributor from the Supplier under this Agreement (details of which are set out in the Schedule);
“Reserved Territories” means all countries, territories and areas excluding the Territory, being countries, territories and areas in respect of which the Supplier may from time to time appoint an exclusive distributor and those countries and areas which the Supplier has reserved to itself;
“Schedule” means the schedule attached to this Agreement;
“Term” means the term of this Agreement;
“Territory” means the territories and areas specified in the Schedule; and
“Year” means a period of 365 days (or 366 days if there is a 29 February during the relevant period) starting on [the Effective Date] or on any anniversary of [the Effective Date].
1.2 In this Agreement, “persons” include companies, partnerships, limited liability partnerships, unincorporated associations and trusts.
1.3 The ejusdem generis rule is not intended to be used in the interpretation of this Agreement; it follows that a general concept or category utilised in this Agreement will not be limited by any specific examples or instances utilised in relation to such a concept or category.
2.Appointment and Term
2.1 The Supplier hereby appoints the Distributor as its non-exclusive distributor for the Products in the Territory during the Term.
2.2 This Agreement will come into force on the Effective Date and will continue in force indefinitely, unless and until terminated in accordance with Clause 15 / for a fixed period of 1 Year, after which it will terminate automatically, unless previously terminated in accordance with Clause 15.
2.3 The Distributor will not for the lesser of a period of 1 Year from the Effective Date and the Term:
(a) purchase the Products from any person other than the Supplier; or
(b) market, distribute or sell any products which compete with the Products.
3.1 The Distributor will not actively supply the Products in the Reserved Territories.
3.2 For the avoidance of doubt, the Supplier may appoint another person as its distributor of the Products in the Territory and may itself supply the Products in the Territory.
4.1 The Distributor will during the Term use reasonable endeavours to market, distribute and sell the Products in the Territory.
4.2 The Distributor will not:
(a) represent to any person that it is an agent of the Supplier;
(b) pledge or purport to pledge the Supplier's credit;
(c) commit or purport to commit the Supplier to any contracts; or
(d) otherwise incur any liability or potential liability on behalf of the Supplier.
4.3 Neither party will take any action or do any thing which would or would be likely to damage the reputation or goodwill of the other party, or bring the other party into disrepute.
4.4 The Supplier will provide any information, documentation and support reasonably requested by the distributor and required to enable the Distributor properly and efficiently to discharge its obligations under this Agreement.
5.1 The Distributor will display or distribute as appropriate all marketing, advertising and promotional materials reasonably provided by the Supplier to the Distributor.
5.2 The Supplier will, where mutually agreed, participate with the Distributor in fairs and exhibitions in the Territory.
The Distributor will during the Term prepare and keep appropriate, accurate and up-to-date accounts and business records (including Product sales, the revenue derived from the Product and other records that may be deemed relevant) and within 7 Business Days following receipt of a written request from the Supplier, supply to the Supplier copies of any or all of these accounts and records.]
Orders and Contracts
7.1 Unless otherwise agreed in writing by the parties:
(a) the terms and conditions of this Agreement are the only terms and conditions upon which the Distributor will purchase the Products and they will be incorporated into each Contract to the exclusion of all other terms and conditions;
(b) any reference to any of the Supplier's or Distributor's terms and conditions in any document forming part of or evidencing this Agreement will not have the effect of incorporating any such terms and conditions into this Agreement, nor of forming any other contract between the parties for the purchase of the Products.
7.2 The Distributor will ensure that each Order for Products includes the following information (at least): kind and quantity of goods ordered and the price lists.
7.3 The Supplier may either accept an Order in full or reject it.
7.4 Upon the Distributor's receipt of the Supplier's notice of acceptance a Contract will come into existence between the parties.
Delivery, risk and title
8.1 Unless otherwise agreed in writing:
(a) all Products will be delivered by the Supplier to the Distributor's premises;
(b) the Supplier will be responsible for arranging loading, shipping, carriage, transport, unloading and insurance for the Products and for clearing the Products for export and import;
(c) the Supplier will be responsible for paying all costs relating to loading, shipping, carriage, transport, unloading, insurance, export and import of the Products; and
(d) risk in the Products will pass from the Supplier to the Distributor when the Products are delivered to the Distributor.
8.3 Legal and equitable title to the Products will pass from the Supplier to the Distributor upon the later of: delivery of the Products, and receipt by the Supplier of all amounts due from the Distributor or any Affiliate of the Distributor to the Supplier under this Agreement.
Prices and payment
9.1 The Supplier may issue an invoice for the Price under a Contract to the Distributor at any time after the Contract has come into force / the Products have been made available or delivered to the Distributor.
9.2 The Distributor will pay the Prices to the Supplier within 15 days of the date of receipt of an invoice issued in accordance with Clause 9.1.
9.3 All amounts payable under this Agreement are exclusive of all sales, value-added, withholding and other taxes and duties which will be payable by the Distributor (except for taxes payable on the Supplier's net income, which will be payable by the Supplier).
9.4 Prices must be paid by either debit or credit card, cash, or by bank transfer (using such payment details as are notified by the Supplier to the Distributor from time to time).
If the Distributor does not pay any amount properly due to the Supplier under or in connection with this Agreement, the Supplier may:
(a) charge the Distributor interest on the overdue amount at the rate of 5% per year above the base rate of HSBC Bank Plc from time to time (which interest will accrue daily until the date of actual payment, be compounded quarterly, and be payable on demand); or
(b) claim interest and statutory compensation from the Distributor pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
11.1 The Distributor warrants to the Supplier that it has the legal right and authority to enter into and perform its obligations under this Agreement.
11.2 The Supplier warrants to the Distributor that it has the legal right and authority to enter into and perform its obligations under this Agreement.
11.3 The Supplier warrants that the Products will be supplied to the Distributor free of any charge or encumbrance.
11.4 The Supplier warrants that the Products:
(a) are of satisfactory quality;
(b) are free from defects;
(c) are fit for purpose;
(d) conform to any description or specification of the Products forming part of a Contract;
(e) comply with all applicable laws, rules, regulations and standards in the Territory; and
(f) will bear all mandatory marks and signs associated with the laws, rules, regulations and standards referred to in Clause
11.5 Without prejudice to the Distributor's other rights and remedies, if the Products do not comply with the warranties set out in this Clause 11, the Distributor may return those Products for either (at the option of the Distributor / the Supplier):
(a) a full credit of the price paid to the Supplier for such Products (including original delivery and insurance charges); or
(b) replacement Products;
plus in each case a full credit of the reasonable costs of returning the Products.
11.6 All of the parties' liabilities and obligations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
11.7 The Distributor will not without the Supplier's prior written consent make or give any promises, representations, warranties or guarantees:
(a) on behalf of the Supplier; or
(b) in relation to the Products (other than those set out in this Agreement in relation to the Products or otherwise mandatory under applicable law).
Product Liability Claims
12.1 the Supplier hereby indemnifies and undertakes to keep indemnified the Distributor against any losses, damages, claims, obligations, liabilities, costs and expenses (including legal fees and costs and expenses incurred in investigating, preparing, defending or prosecuting any litigation, claim, proceeding or demand) arising out of or in connection with any Product Liability Claim, except to the extent that the liabilities, losses, costs, damages and expenses arise as a result of the default of the Distributor or any third party.
12.2 The Distributor will:
(a) upon becoming aware of an actual or potential Product Liability Claim, notify the Supplier;
(b) provide to the Supplier all reasonable assistance in relation to the Product Liability Claim;
(c) allow the Supplier the exclusive conduct of the Product Liability Claim and all related disputes, proceedings, negotiations and settlements; and
(d) not admit liability in connection with any Product Liability Claim or settle any Product Liability Claim without the prior written consent of the Supplier.
Limitations and exclusions of liability
13.1 Nothing in the Agreement will:
(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
(c) limit or exclude any liability of a party under Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982;
(d) limit any liability of a party in any way that is not permitted under applicable law; or
(e) exclude any liability of a party that may not be excluded under applicable law.
13.2 The limitations and exclusions of liability set out in this Clause 13 and elsewhere in the Agreement:
(a) are subject to Clause 13.1;
(b) govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and
[(c) will limit and exclude the liability of the parties under the express indemnities set out the Agreement.
13.3 The Supplier will not be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.
13.4 The Supplier will not be liable for any loss of business, contracts or commercial opportunities.
13.5 The Supplier will not be liable for any loss of or damage to goodwill or reputation.
13.6 The Supplier will not be liable in respect of any loss or corruption of any data, database or software.
13.7 The Supplier will not be liable in respect of any special, indirect or consequential loss or damage.
13.8 The Supplier will not be liable for any losses arising out of a Force Majeure Event.
13.9 The Supplier's liability in relation to any event or series of related events will not exceed the greater of:
(a) £100; and
(b) the total amount paid and payable by the Distributor to the Supplier under the Agreement during the 1 month period immediately preceding the event or events giving rise to the claim.
13.10 The Supplier's aggregate liability under the Agreement will not exceed the greater of:
(a) £200; and
(b) the total amount paid and payable by the Distributor to the Supplier under the Agreement.
Without prejudice to the Supplier's obligations under Clause 11, the Distributor must comply with all applicable laws, rules and regulations in the Territory relating to, and must obtain all licences, permits and approvals required in relation to:
(a) the marketing, promotion and advertising of the Products;
(b) distribution, sale, supply and delivery of the Products; and
15.1 Either party may terminate this Agreement at any time by giving at least 180 days' written notice to the other party expiring at any time after the end of the Minimum Term.
15.2 Either party may terminate this Agreement immediately by giving written notice to the other party if the other party:
(a) commits any material breach of any term of this Agreement, and:
(i) the breach is not remediable; or
(ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or
[(b) persistently breaches the terms of this Agreement.
15.3 Either party may terminate this Agreement immediately by giving written notice to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement); or
(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
Effects of termination
16.1 Upon termination all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 10, 11, 12, 13, 16 and 17.
16.2 Termination of this Agreement will not affect either party’s accrued rights (including accrued rights to be paid) as at the date of termination.
16.3 Within 30 days of the termination of this Agreement, the Distributor will return to the Supplier or dispose of as the Supplier may instruct all materials, documents and other media sent to the Distributor by the Supplier relating to the Products (excluding correspondence between the parties).
16.4 On termination of this Agreement:
(a) the Supplier will have an option to buy from the Distributor all (but not a portion of) the Products that are: (i) in the possession and control of the Distributor; and (ii) in resaleable condition;
(b) if the Supplier exercises this option, the Supplier must pay to the Distributor an amount equal to the original amount paid by the Distributor to the Supplier in respect of those Products (excluding original delivery costs);
(c) the option must be exercised within 1 month of the date of effective termination and, if the option is exercised, the purchase must be completed within 2 months of the date of effective termination;
(d) if the option is exercised, the Supplier will arrange and pay for the return of the Products;
(e) if the option is not exercised within the 1 month period, the Distributor will be entitled for a period of 12 months from the date of effective termination of this Agreement to continue to sell and distribute the Products it held in stock at the date of effective termination; and
(f) promptly following the exercise of the Supplier’s option or on the expiration of the 12th month following the date of effective termination (which ever is earlier), the Distributor will cease to sell and distribute the Products, and will make all Products remaining in its possession or control available for collection by the Supplier.
17.1 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
17.2 If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
17.3 Nothing in this Agreement will constitute a partnership, agency relationship or contract of employment between the parties.
17.4 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
17.5 Either party may freely assign their rights and obligations under this Agreement without the other party's consent to any Affiliate of the assigning party or any successor to all or a substantial part of the business of the assigning party from time to time. Save as expressly provided in this Clause or elsewhere in this Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in this Agreement or any rights or obligations under this Agreement.
17.6 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which are necessary to enable the parties to exercise their rights and fulfil their obligations under this Agreement.
17.7 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
17.8 Subject to Clause 13.1:
(a) this Agreement will constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and supersedes all previous agreements, arrangements and understandings between the parties in respect of that subject matter;
(b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement; and
(c) neither party will have any liability other than pursuant to the express terms of this Agreement.
17.9 This Agreement will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
The parties have indicated their acceptance of this Agreement by executing it below.
SIGNED by [name of signatory]
duly authorised for and on behalf
of the Supplier