Clause Page
1………… DEFINITIONS AND INTERPRETATION………………………………………………………1
2………… TERM………………………………………………………………………………………………………6
3………… [EXCLUSIVE]/[SOLE]/[NON-EXCLUSIVE] APPOINTMENT…………………………. 6
4………… DUTIES OF THE DISTRIBUTOR…………………………………………………………………6
5………… PROHIBITIONS ON DISTRIBUTOR………………………………………………………….. 8
6………… DUTIES OF THE PRINCIPAL…………………………………………………………………….. 8
7………… FORECASTS……………………………………………………………………………………………..9
8………… PRODUCTS………………………………………………………………………………………………9
9………… DELIVERY……………………………………………………………………………………………….. 9
10………. PRICE AND PAYMENT……………………………………………………………………………..10
11………. EXCLUSIONS AND LIMITATIONS OF LIABILITY…………………………………………10
12………. TERMINATION OF THIS AGREEMENT………………………………………………………12
13………. CONSEQUENCES OF [EXPIRY OR] TERMINATION…………………………………….12
14………. CONFIDENTIALITY……………………………………………………………………………………13
15………. ANNOUNCEMENTS………………………………………………………………………………….13
16………. [INTELLECTUAL PROPERTY…………………………………………………………………….. 13
17………. ASSIGNMENT…………………………………………………………………………………………. 14
18………. NOTICE …………………………………………………………………………………………………..14
19………. GENERAL ………………………………………………………………………………………………..15
20………. AGENT FOR SERVICE ……………………………………………………………………………… 16
21………. GOVERNING LAW…………………………………………………………………………………….16
22………. JURISDICTION…………………………………………………………………………………………. 16
Schedules
1………… KEY COMMERCIAL TERMS…………………………………………………………………………17
2………… TERMS AND CONDITIONS OF SALE…………………………………………………………. 18
3………… RETURNS PROCEDURE……………………………………………………………………………..19
4………… TRADE MARKS…………………………………………………………………………………………..20
5………… SALES ACTION PLAN/PURCHASING BUDGET…………………………………………….21
THIS AGREEMENT is made
“Announcement” | any public announcement, circular or other communication about or containing information about the terms, subject matter or existence of this Agreement or any Contract or any matter arising out of or ancillary to this Agreement or any Contract | |||
“Applicable Law”
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any:
(a) statute, statutory instrument, bye-law, order, regulation, directive, treaty, decree, decision of the European Council or law (including any common law or civil law judgment, demand, order or decision of any court, regulator or tribunal); (b) legally binding rule, policy, guidance or recommendation issued by any governmental, statutory or regulatory body; and/or (c) legally binding industry code of conduct or guideline which relates to this Agreement and/or any Contract and/or the Products |
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“Business Day” | a day that is not a Saturday, Sunday or public or bank holiday in the Territory | |||
“Business Hours” | [8.30] on a Business Day] | |||
“Change in Control” | will occur in respect of a person (the “relevant entity”) where: | |||
(a) Control of the relevant entity is obtained (whether directly or as a result of obtaining Control of one or more other persons) by any person who did not at the Start Date hold Control (whether directly or as a result of having Control of one or more other persons) of the relevant entity; or | ||||
(b) a person who has Control (whether directly or as a result of having Control of one or more other persons) of the relevant entity at any time during the Term ceases to have Control (whether directly or as a result of having Control of one or more other persons) of the relevant entity, | ||||
save that any such event will not constitute a Change in Control in respect of the relevant entity where its Ultimate Parent Undertaking (if any) before the relevant event remains its Ultimate Parent Undertaking after that event | ||||
“Confidential Information” | the meaning given to it in clause 14 | |||
“Contract” |
a contract for the supply of Products by the Principal to the Distributor on the terms and conditions of this Agreement formed in accordance with clause 7 and Schedule 2 | |||
“Contract Products” | the Products which are the subject of the relevant Contract | |||
“Control” | has the meaning set out in the Takeover Code | |||
“Data Subject” | the meaning given to it in the DPA | |||
“Data Protection Legislation” | the DPA and any other laws relating to the processing of personal data | |||
“Delivery” | the time at which delivery of the Contract Products is deemed to occur in accordance with clause 9 | |||
“Discloser” | the party providing the Confidential Information | |||
“DPA” | the Data Protection Act 1998 | |||
“End Customer” | any person with whom the Distributor enters into a contract for the sale and purchase of Products | |||
“Event” | an act, event, omission or circumstance | |||
“Force Majeure Event” | any event or circumstance to the extent it is beyond the reasonable control of the relevant party | |||
“Forecast” | a forecast of the Distributor’s requirements for the Products provided to the Principal by the Distributor in accordance with clause 7 | |||
“Group Companies”
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in respect of a person, any persons that Control, are Controlled by or are under common Control with that person from time to time | |||
“Insolvent” | a party is Insolvent where it:
(a) gives notice under section 84 Insolvency Act 1986 or proposes or passes a resolution for, its winding up (save for the purpose of a solvent reconstruction or amalgamation); |
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(b) has a winding up petition based upon a petition debt presented against it; | ||||
(c) has a winding-up order made or a notice of striking off filed in respect of it; | ||||
(d) (i) has an administration order made in respect of it; or
(ii) has a notice of appointment of an administrator or a notice of intention to appoint an administrator filed in respect of it at any court; |
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(e) proposes, makes or is subject to:
(i) a company voluntary arrangement; (ii) a composition with its creditors generally; (iii) an application to a court of competent jurisdiction for protection from its creditors generally; or (iv) a scheme of arrangement under Part 26 Companies Act 2006 (save for the purpose of a solvent reconstruction or amalgamation previously approved in writing by the other party); |
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(f) has a receiver or a provisional liquidator appointed over any of its assets, undertaking or income; | |||
(g) ceases to trade or appears, in the reasonable opinion of the other party, to be likely to cease to trade; | ||||
(h) (i) is unable to pay its debts as they fall due; or
(ii) the value of its assets are less than its liabilities, including its contingent and prospective liabilities; |
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(i)
(i) is the subject of anything analogous to the foregoing under the laws of any applicable jurisdiction; or (ii) is the subject of any proceeding in any Member State of the European Union which is capable of recognition under the EC Regulation on Insolvency Proceedings (EC 1346/2000);or (iii) is the subject of an application for the recognition of a foreign insolvency proceeding under the Cross-Border Insolvency Regulations 2006 (SI 2006/1030); |
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“Intellectual Property Rights” | all intellectual and industrial property rights of any kind whatsoever including patents, supplementary protection certificates, rights in Know-How, registered trademarks, registered designs, models, unregistered design rights, unregistered trademarks, rights to prevent passing off or unfair competition and copyright (whether in drawings, plans, specifications, designs and computer software or otherwise), database rights, topography rights, any rights in any invention, discovery or process, and applications for and rights to apply for any of the foregoing, in each case in the United Kingdom and all other countries in the world and together with all renewals, extensions, continuations, divisions, reissues, re-examinations and substitutions | |||
“Know-how” | formulae, methods, plans, inventions, discoveries, improvements, processes, performance methodologies, techniques, specifications, technical information, tests, results, reports, component lists, manuals and instructions | |||
“Liability” | liability arising out of or in connection with this Agreement or any Contract, whether in contract, tort, misrepresentation, restitution, under statute or otherwise, including any liability under an indemnity contained in this Agreement or any Contract and/or arising from a breach of, or a failure to perform or defect or delay in performance of, any of a party’s obligations under this Agreement or any Contract and/or any defect in any of the Products, in each case howsoever caused including if caused by negligence | |||
“Order” | an order for the supply of Products by the Principal to the Distributor on the terms and conditions of this Agreement | |||
“Parent Undertaking” | has the meaning set out in section 1162 Companies Act 2006 | |||
“Personal Data” | any personal data (as such term is defined in the DPA) relating to End Customers or prospective End Customers | |||
“Prices” | the prices set out in Schedule 1 as may be varied from time to time | |||
“Product Liability” | Liability for and Liability arising from death, personal injury, damage to and/or loss or destruction of tangible property caused by a Product (but not Liability for damage or loss to or defects in the Product itself nor Liability for any recall, repair, alteration, replacement or re-instatement of the Product or any product into which the Product is incorporated) | |||
“Products” | the products listed in Schedule 1 as those products may be varied from time to time in accordance with clause 8.1 | |||
“Purchasing Budget” | the budget set out in Schedule 5 , as may be varied from time to time | |||
“Quarter” | the period of 3 months starting on the Start Date, each successive period of 3 months and the period (if any) starting on the day following expiry of the last such period of 3 months and ending on the Termination Date; and “Quarterly” will be construed accordingly | |||
“Recipient” | the party in receipt of the Confidential Information | |||
“Records” | the meaning given to it in clause 13.3.2 | |||
“Representatives” | in respect of a party, that party and its officers, directors, employees and professional advisers and, where the Principal is the Recipient, the Principal’s agents and sub-contractors; and “Representative” means any of them | |||
“Returns Procedure” | the Principal’s standard returns procedure as set out in Schedule 3 | |||
“ | means [INSERT DEFINITION] | |||
“Sales Action Plan” | the plan set out in Schedule 5, as may be varied from time to time | |||
“Sales Targets” | the minimum sales levels set out in the [Sales Action Plan] | |||
“Start Date” | [AS INSERTED ON THE DISTRUBTOR AGREEMENT] | |||
“Takeover Code” | the City Code on Takeovers and Mergers as interpreted by the Panel on Takeovers and Mergers from time to time | |||
“Term” | the period starting on the Start Date and ending on the Termination Date | |||
“Termination Date” | the date on which this Agreement expires or terminates for whatever reason | |||
the Principal’s standard Terms and Conditions of Sale Wholesale – England, Wales, Scotland and Northern Ireland as incorporated into this Agreement and included at Schedule 2, as may be updated from time to time | ||||
“Territory” | the territory set out in Schedule 1 | |||
“ | the trade marks set out in Schedule 3 together with such other marks as the Principal may from time to time specify are to be used by the Distributor in relation to the Products | |||
“Ultimate Parent Undertaking” | a Parent Undertaking (if any) of the relevant person which is not a Subsidiary Undertaking of any other person | |||
“VAT” | value added tax | |||
the period starting on and including the date of Delivery and ending on expiry of a period of 12 Months from and including that date | ||||
“Year” | the period starting on the Start Date and ending on 31 December 2017, each successive calendar year during the Term and the period starting on the last 1 January during the Term and ending on the Termination Date | |||
During the Term the Principal will:
Any Liability of the Principal which falls within this clause 11.4 will not be taken into account in assessing whether the financial limit in clause 11.1 has been reached.
The Distributor will not make any Announcement, or permit any Announcement to be made, without the prior written consent of the Principal, except that the Distributor will be entitled to make Announcements if and to the extent required by law or by any governmental or regulatory authority.
The address of the Agent is set out in clause 20.1 and may be changed to another address in England or Wales by the Distributor giving at least [seven (7)] Business Days’ notice to the Principal in accordance with clause 18.