These Standard Terms and Conditions of Sale came into effect on 1 January 2023 (version 1) and shall apply to the Commercial Terms (if applicable) and to all Orders for Products submitted by the Distributor to the Supplier. By placing an Order, the Distributor agrees to abide by these Terms.<\/p>\n
1. INTERPRETATION<\/strong><\/p>\n The following definitions and rules of interpretation apply in this Agreement.<\/p>\n 1.1. Definitions.<\/span><\/p>\n Affiliate:<\/strong> means any subsidiary, any holding company and any other subsidiary of such holding company.<\/span><\/p>\n Agreement: means<\/span><\/strong><\/p>\n \u00a0Applicable Law:<\/strong> means any federal, state, provincial or local law, rule, regulation, codes, compact, or treaty adopted or enacted by the government(s) of the Territory, as amended from time to time.<\/span><\/p>\n Authorised Sales Channels:<\/strong> means the following distribution channels: (a) independent fine arts supply shops, (b) independent hobby shops selling fine arts supplies, (c) fine arts and hobby chains, (d) online stores with assortment focus of hobby, craft and fine arts, (e) stationery shops, and (f) distributors and wholesalers to the foregoing; provided, however, that any such distributor and wholesaler may not sell the Products other than to customers within categories (a) through (f). It is explicitly understood that this Agreement and \u201cAuthorised Sales Channels\u201d do not include any direct-to-consumer sales, either through e-commerce channels or branded websites, or other distribution channels.<\/span><\/p>\n Commercial Terms:<\/strong> means the commercial terms signed between the Parties under these Terms (whether version 1 or a later version).<\/span><\/p>\n Confidential Information<\/strong>:<\/strong> means, without limitation, all information which is disclosed before or after the Start Date by the disclosing Party or any member of the group of companies to which the disclosing Party belongs to the receiving Party, however conveyed, whether or not marked or identified as confidential, which relates to the business, operations, processes, financial business plans and affairs, products, product developments, designs, intellectual property, trade secrets, formulations, methods of manufacturing, know-how, technical information, marketing plans, personnel, customers, clients, contracts, contractors and suppliers of the disclosing Party, and all information derived from the aforementioned.<\/span><\/p>\n Control:<\/strong> has the meaning given in section 1124 of the UK Corporation Tax Act 2010, and Controls, Controlled and the expression change of Control shall be construed accordingly.<\/span><\/p>\n Data Protection Legislation:<\/strong> means: (a) to the extent the UK GDPR (has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018) applies, the law of the UK or of a part of the UK which relates to the protection of personal data; and (b) to the extent the EU<\/span><\/p>\n General Data Protection Regulation ((EU) 2016\/679) applies, the law of the EU or any member state of the EU to which the party is subject, which relates to the protection of personal data.<\/p>\n Distributor:<\/strong> means the buyer of the Products as defined in the Commercial Terms (if applicable) or the person or entity being a distributor, wholesaler or retailer buying the Products from the Supplier.<\/span><\/p>\n Minimum Sales Target:<\/strong> means in relation to each Year, the aggregate minimum sales value of Products to be ordered by the Distributor from the Supplier specified in the Commercial Terms (if applicable) or otherwise agreed in writing between the Parties.<\/span><\/p>\n Order Form:<\/strong> means the Supplier\u2019s International order form issued to the Distributor (which may contain the Price List) for the purchase of the Products and \u201c<\/span>Order\u201d means an order placed using the Order Form.<\/span><\/p>\n Party<\/strong>:<\/strong> means the Supplier or Distributor (as applicable) and \u201c<\/span>Parties\u201d means both the Supplier and the Distributor.<\/span><\/p>\n Products:<\/strong> means the products of the brand, type and specification manufactured and sold by the Supplier and described in the Commercial Terms (if applicable) or the Order Form, together with any other products developed from time to time by the Supplier.<\/span><\/p>\n Reserved Customers:<\/strong> means the customers specified in the Commercial Terms (if applicable) and any other customer groups in respect of which the Supplier informs the Distributor in writing that it has reserved to itself, including for the avoidance of doubt, any direct-to-consumer sales, either through e-commerce channels or branded websites, or other distribution channels.<\/span><\/p>\n Reserved Territories:<\/strong> means the countries or areas specified in the Commercial Terms (if applicable) and any other countries or areas in respect of which the Supplier informs the Distributor in writing that it has reserved to itself.<\/span><\/p>\n Start Date:<\/strong> means the date this Agreement commences as set out in the Commercial Terms (if applicable) or when the first Order is accepted by the Supplier under these Terms (as unilaterally amended by the Supplier from time to time).<\/span><\/p>\n Terms:<\/strong> means these Standard Terms and Conditions of Sale, as unilaterally amended by the Supplier from time to time (whether version 1 or a later version).<\/span><\/p>\n Territory:<\/strong> means the countries or areas specified in the Commercial Terms (if applicable) or the country\/ countries in which the Supplier permits in writing the Distributor to sell the Products.<\/span><\/p>\n Trademarks:<\/strong> means the Supplier\u2019s trademark registrations and applications listed in the Commercial Terms (if applicable) or provided to the Distributor for the purposes of this Agreement, together with any further trademarks that the Supplier may, in writing, permit or procure permission for the Distributor to use in the Territory in respect of the Products.<\/span><\/p>\n VAT:<\/strong> means value added tax or any equivalent tax chargeable in the UK or elsewhere.<\/span><\/p>\n Year:<\/strong> means the period of 12 months from the Start Date and each consecutive period of 12 months thereafter for the duration of this Agreement.<\/span><\/p>\n 1.2. Interpretation<\/span>. A reference to legislation or a legislative provision is a reference to it as amended or re-enacted in the territory specified in these Terms or in England and Wales if no territory is stipulated. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.<\/span><\/p>\n 1.3. Applicability and Order of Precedence<\/span>.<\/p>\n 1.3.1. These Terms govern the execution of Orders in accordance with the Commercial Terms (if applicable) placed by the Distributor with the Supplier.<\/p>\n 1.3.2. These Terms prevail over all other terms and conditions, including but not limited to (a) the Distributor\u2019s standard terms of sale or business, (b) any terms contained in a Distributor\u2019s own format purchase order or Distributor\u2019s electronic platform or (c) any other terms which the Distributor may seek to impose in relation to the Commercial Terms (if applicable) and\/or an Order.<\/p>\n 1.3.3. An Order and\/or the Commercial Terms (if applicable) may specify special terms which apply to that Order.<\/p>\n 1.3.4. In the event of any conflict or ambiguity between the terms of the documents which form this Agreement: (a) a term contained in an Order shall have priority over one contained in the Commercial Terms (if applicable) or these Terms; and (b) a term contained in the Commercial Terms shall have priority over one contained in these Terms.<\/p>\n 1.3.5. In the event of any conflict between the English version and any translated version of this Agreement, the English version shall prevail.<\/p>\n 1.3.6. For the avoidance of doubt, the United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms. The International Chamber of Commerce\u2019s Incoterms rules shall apply to this Agreement, but where they conflict with these Terms, these Terms shall prevail.<\/p>\n <\/p>\n 2. APPOINTMENT<\/strong><\/p>\n 2.1. Appointment.<\/span> The Supplier appoints the Distributor as its distributor to purchase, promote, advertise, distribute and sell the Products in the Territory subject to the terms of this Agreement, and the Distributor accepts the appointment on those terms.<\/span><\/p>\n 2.2. Non-exclusive appointment<\/span>. Unless otherwise agreed in writing between the Parties, the Supplier shall be free to:<\/span><\/p>\n (a) appoint any other agent, distributor or seller for the Products in the Territory; and<\/p>\n (b) supply any Products directly in the Territory whether for use or resale.<\/p>\n 2.3. Prohibition on active sales<\/span>. The Distributor shall not make any active sales of the Products to customers (a) outside the Territory, (b) outside the Authorised Sales Channels, (c) in the Reserved Territories and (d) to Reserved Customers. For these purposes, active sales shall be understood to mean actively approaching or soliciting customers, including but not limited to the following actions:<\/span><\/p>\n (i) visits;<\/p>\n (ii) direct mail, including the sending of unsolicited emails;<\/p>\n (iii) advertising in media, on the internet, on social media or other promotions, where such advertising or promotion is specifically targeted at customers in Reserved Territories and\/or at Reserved Customers;<\/p>\n (iv) online advertisements addressed to customers in Reserved Territories and\/or to Reserved Customers and other efforts to be found specifically by users in Reserved Territories and\/or belonging to the Reserved Customers, 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\/or belonging to the Reserved Customers; and<\/p>\n (v) advertising or promotion in any form, or translation of the Distributor\u2019s website into a language other than an official language of any country forming part of the Territory, that the Distributor would not reasonably carry out but for the likelihood that it will reach customers in Reserved Territories and\/or Reserved Customers.<\/p>\n 2.4. Restrictions on the Distributor<\/span>. The Distributor shall not:<\/span><\/p>\n (a) sell, resell, distribute, retail, promote, market or advertise the Products whether directly or indirectly, actively or passively including to any third party (including, but not limited to, market place platforms) where the Products will be or may be sold outside of the Territory;<\/p>\n (b) represent itself as an agent of the Supplier for any purpose;<\/p>\n (c) pledge the Supplier\u2019s credit;<\/p>\n (d) give any condition or warranty on the Supplier\u2019s behalf;<\/p>\n (e) commit the Supplier to any contracts;<\/p>\n (f) otherwise incur any liability for or on behalf of the Supplier; or<\/p>\n (g) without the Supplier\u2019s written consent, make any representations, promises or guarantees about the Products beyond those contained in the promotional material supplied by the Supplier.<\/p>\n <\/p>\n 3. DISTRIBUTOR\u2019S UNDERTAKINGS<\/strong><\/p>\n 3.1 Minimum Sales Target.<\/u> If applicable, the Distributor shall place Orders consistent with achieving the Minimum Sales Target. The failure to achieve the Minimum Sales Target for any Year shall give the Supplier the right to terminate this Agreement in accordance with Clause 13.2(c) (Early termination with immediate effect and no notice<\/i>).<\/p>\n 3.2 Best efforts to sell the Products.<\/span> The Distributor shall use its best efforts to promote and sell the Products in the Territory.<\/span><\/p>\n 3.3 Sales reports and the provision of information.<\/span> The Distributor shall submit written reports at regular intervals to the Supplier, showing details of stock levels and movements, sales, outstanding customer orders and orders placed by the Distributor with the Supplier that are still outstanding, and any other information relating to the performance of its obligations under this Agreement that the Supplier may reasonably require from time to time. The Distributor warrants that all reports and information shall be accurate, up to date, complete and will be provided in the format requested by the Supplier.<\/span><\/p>\n 3.4 Maintenance of stock.<\/span> The Distributor shall maintain, on its own account, sufficient inventory of the Products so that it can meet all its orders without delay.<\/span><\/p>\n 3.5 Accounts and records.<\/span> The Distributor shall keep for the duration of this Agreement and for 6 Years thereafter, full and accurate books of account and records clearly showing all enquiries, quotations, transactions and proceedings relating to the <\/span>Products and allow the Supplier, on reasonable notice during normal business hours, access to such accounts and records for inspection if requested.<\/p>\n 3.6 Incoterms 2020.<\/span> Unless otherwise agreed in writing with the Distributor, the incoterm FCA (Free Carrier) Le Mans France shall govern the execution of Commercial Terms (if applicable) and all Orders.<\/span><\/p>\n 3.7 Customs clearance.<\/span> Under Incoterm FCA (Free Carrier) Le Mans France, the export customs document known as the \u2018Single Administrative Document\u2019 is issued by the Supplier. The Distributor shall provide the Supplier with the exit code in respect of the customs office from which the Products will exit the European Union. The Supplier shall then send the Single Administrative Document to the Distributor or its freight forwarder. It is therefore the responsibility of the Distributor or its freight forwarder to clear the Products at the exit code confirmed in the Single Administrative Document. No other Single Administrative Document shall be issued by the Distributor or its freight forwarder. If the Distributor or its freight forwarder issues its own Single Administrative Document (duplicate), this must be cancelled without delay and the Distributor or its freight forwarder shall provide the Supplier with evidence of the cancellation.<\/span><\/p>\n 3.8 Storage.<\/span> The Distributor shall at its own cost keep all stocks of the Products that it holds in conditions appropriate for their storage and provide appropriate security for the Products.<\/span><\/p>\n 3.9 Change of Control.<\/span> The Distributor shall inform the Supplier immediately of any changes in ownership or Control of the Distributor, and of any change in its organisation or method of doing business that might be expected to affect the performance of the Distributor\u2019s duties in this Agreement.<\/span><\/p>\n 3.10 Payments to the Supplier on due date.<\/span> The Distributor shall pay all sums due to the Supplier on the due date in full without any set-off, counterclaim, deduction or withholding, for all Orders delivered or (as applicable) collected.<\/span><\/p>\n 3.11 Sales outside of the Territory.<\/u> The Distributor shall in any resale or retail of the Products whether directly or indirectly, agree provisions equivalent to those contained in Clause 2.4(a) (Restrictions on the Distributor<\/i>) to the Supplier\u2019s benefit.<\/p>\n <\/p>\n 4. SUPPLY OF PRODUCTS<\/strong><\/p>\n 4.1 No obligation to meet the Distributor\u2019s Orders.<\/span> The Supplier shall use its reasonable endeavours to meet all Orders for the Products placed by the Distributor as soon as practicable or in accordance with an Order while stocks last, but the Supplier may, at its sole discretion, reject or stop the performance of any Order within the limits of available stocks or which it otherwise reasonably considers would be impracticable to meet.<\/span><\/p>\n 4.2 Minimum order quantity and minimum order value.<\/span> The Supplier reserves the right to reject an Order if: (a) the Order does not adhere to the required minimum order quantity, as unilaterally amended by the Supplier from time to time; or (b) the total value of an Order is less than EUR 1,525 net, as unilaterally amended by the Supplier from time to time.<\/span><\/p>\n 4.3 Changes to the Products<\/span>. The Supplier may at its sole discretion vary or stop the sale of any Product without notice. Notwithstanding the foregoing, the Supplier will endeavour to give reasonable notice to the Distributor where possible.<\/span><\/p>\n 4.4 Changes to the specification of the Products.<\/span> The Supplier may make changes to the specifications of the Products, provided the changes do not adversely affect the quality of the Products. Notwithstanding the forgoing, the Supplier will endeavour to give reasonable notice of any changes to the Distributor where <\/span>possible.<\/p>\n <\/p>\n 5. SUPPLIER\u2019S OBLIGATION TO PROVIDE INFORMATION AND SUPPORT<\/strong><\/p>\n The Supplier shall provide the Distributor with such information and support as the Supplier, in its sole discretion, considers appropriate to enable the Distributor to enable it to discharge its duties under this Agreement properly and efficiently.<\/p>\n <\/p>\n 6. PRICES, FEES AND PAYMENT<\/strong><\/p>\n 6.1 Prices<\/span>. The prices to be paid by the Distributor to the Supplier for the Products shall be the Supplier\u2019s Price List as notified to the Distributor from time to time or contained in the Order Form.<\/span><\/p>\n 6.2 Price increases.<\/span> The Supplier endeavours to provide the Distributor 60 days\u2019 prior written notice of any increase in the price of the Products. However, the Supplier reserves the right at any time to immediately increase the price of the Products in the event of justifying factors, including but not limited to significant changes in raw material prices.<\/span><\/p>\n 6.3 Prices exclusive of VAT and other taxes.<\/span> All sums payable by one Party to the other under this Agreement, are exclusive of any VAT or other taxes chargeable on the supplies for which such sums (or any part of them) are the whole or part of the consideration for VAT purposes.<\/span><\/p>\n 6.4 Distributor\u2019s costs.<\/span> All expenses, costs and charges incurred by the Distributor in the performance of its obligations under this Agreement shall be paid by the Distributor, unless the Supplier has expressly agreed in advance in writing to pay such expenses, costs and charges.<\/span><\/p>\n 6.5 Payment terms.<\/span> The Distributor shall pay the full amount invoiced to it by the Supplier in the currency stipulated in the Order Form or Commercial Terms (if applicable) within 30 days of the date of the invoice, unless otherwise agreed in the Commercial Terms (if applicable) or otherwise agreed in writing between the Parties. The Supplier reserves the right, at any time at its sole discretion, to demand payment (whether in full or part) in advance, particularly in respect of a new Distributor, before making any deliveries or to reduce the number of days within which payment is required from the date of the invoice.<\/span><\/p>\n 6.6 Interest on late payment; disputed invoices.<\/span> The Distributor shall pay the Supplier interest at the daily rate of 12% per annum in excess of the European Central Bank\u2019s base rate or, if lower, the maximum rate permitted by Applicable Law, on the unpaid amount of each invoice overdue (including VAT) until actual receipt of the overdue amount by the Supplier. In addition, in accordance with Article L441 of the French Commercial Code: (a) any late payment automatically generates a lump sum indemnity for recovery costs of a minimum of EUR 40 per invoice; and (b) if the recovery costs incurred are higher they will be charged based on relevant receipts. No acceptance of a partial invoice payment by the Supplier shall constitute a waiver of the Supplier\u2019s right to the remainder of the invoice amount. The Supplier may suspend any further deliveries of the Products until the overdue amounts are paid. If the Distributor disputes any portion of any invoice, (i) the Distributor shall notify the Supplier of the portion disputed and the reason for such dispute within 5 days of the invoice date, (ii) Distributor shall pay the undisputed portion in accordance with the terms of this Agreement and (iii) the Parties shall in good faith seek to resolve such dispute within 15 days of the dispute being raised; and (iv) no interest shall accrue or be chargeable on any amounts in dispute.<\/span><\/p>\n 6.7 Set-off.<\/span> The Distributor shall pay all amounts due under this Agreement in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as <\/span>required by Applicable Law). The Supplier may set off any amounts overdue against any liability of the Supplier to the Distributor.<\/p>\n 6.8 Fees for documents and logistic services.<\/span> The Distributor shall incur the following fees for documents and logistic services, as unilaterally amended by the Supplier from time to time:<\/span><\/p>\n (a) Certificate of Origin: EUR 22 per certificate;<\/p>\n (b) Legalisation of documents: EUR 20 per document;<\/p>\n (c) Document shipment with tracking: EUR 35 per shipment;<\/p>\n (d) Fumigated pallets: EUR 9 per pallet;<\/p>\n (e) Additional storage whereby Products are not collected within 14 days of the Supplier sending the Distributor the packing details to organise collection: EUR 5 per pallet per day;<\/p>\n (f) Customer required over-labelling: EUR 0.35 per Product; and<\/p>\n (g) Chamber of Commerce administration fee: EUR 20 per file.<\/p>\n <\/p>\n 7. ADVERTISING, PROMOTION AND SALES BY DISTRIBUTOR<\/strong><\/p>\n 7.1 Distributor\u2019s obligations.<\/span> The Distributor shall:<\/span><\/p>\n (a) solely be responsible for setting and advertising its selling prices in accordance with Applicable Law;<\/p>\n (b) not use any advertising and merchandising materials or promotional literature to promote the Products without the Supplier\u2019s prior written approval;<\/p>\n (c) display advertising and merchandising materials and other signs provided by the Supplier;<\/p>\n (d) ensure any advertising and merchandising materials it produces itself shall comply with all Applicable Law, are fit for the purpose intended and are not defective;<\/p>\n (e) observe all directions and instructions given to it by the Supplier for promotion and advertisement of the Products; and<\/p>\n (f) not make any written statement as to the quality or manufacture of the Products without the Supplier\u2019s prior written approval.<\/p>\n 7.2 Supplier\u2019s obligations.<\/span> The Supplier shall:<\/span><\/p>\n (a) approve or reject, in its sole discretion, any promotional information or material or any advertising and promotional programme submitted by the Distributor within 30 days of receipt; and<\/p>\n (b) provide the Distributor with information on the advertising and promotion used by the Supplier and, at the cost of the Distributor, supply such quantities of promotional and advertising material as the Distributor may reasonably request from time to time.<\/p>\n <\/p>\n 8. TRANSFER OF RISKS, OWNERSHIP, INSURANCE AND RETURNS<\/strong><\/p>\n 8.1 Transfer of risk.<\/span> The transfer of risk in the Products shall take place in accordance with the incoterm specified in the Order Form or the Commercial Terms (if applicable) and confirmed in the invoice. If no incoterm is specified in the Order Form or the Commercial Terms (if appliable) and confirmed in the invoice, the risk shall transfer from the Supplier to the Distributor in accordance with the incoterm specified in Clause 3.6 (<\/span>Incoterms <\/i>2020) and therefore on delivery or (as applicable) collection of the Products at the delivery or (as applicable) collection address stipulated in the Order Form or Commercial Terms (if applicable) and which may be confirmed in the invoice. Save as expressly provided in this Agreement, the Supplier shall have no further responsibility for the Products following delivery or (as applicable) collection of the Products by the Distributor, and all risk of damage to or loss or delay of the Products shall pass to the Distributor upon such delivery or (as applicable) collection by: (i) the Distributor\u2019s carrier\/ freight forwarder; or (ii) an other agent, entity or person acting on behalf of the Distributor at the delivery or (as applicable) collection address.<\/span><\/p>\n 8.2 Deemed delivery if no issue raised within 10 days<\/span>. Deliveries of Products which are not compliant with the Order Form (e.g., lower number of Products delivered) must be reported to the Supplier within 10 days of delivery or (as applicable) collection, otherwise the delivery is deemed to have been made without any issue.<\/span><\/p>\n 8.3 Damage of Products in transit.<\/u> Subject to Clause 8.1 (Transfer of Risk<\/i>), if any Products are damaged in transit and the Parties dispute whether the damage occurred before or after the Supplier\u2019s delivery to the delivery or (as applicable) collection address, the Distributor shall have the burden of proving that the damage occurred prior to the Supplier\u2019s delivery of the Products.<\/p>\n 8.4 Return of Products.<\/u> Products may only be returned to the Supplier with the Supplier\u2019s prior written approval. The Distributor shall bear the full cost of any returns, including any returns from its own customers, subject to the de minimis set out at Clause 12.2(d) (Limitations of Liability<\/i>), unless otherwise agreed in writing between the Parties. The Supplier shall, at its sole discretion, determine whether to issue a credit note or other refund method in respect of the returned Products.<\/p>\n 8.5 Transfer of title\/ ownership.<\/span> The transfer of title\/ ownership in the Products from the Supplier to the Distributor shall take place when the Supplier has received payment for the Products in full without any set-off or deduction. The Supplier and its Affiliates shall retain title to and ownership of any advertising or merchandising materials supplied to the Distributor or its retailers.<\/span><\/p>\n 8.6 Distributor\u2019s Insurance coverage for damage of Products after delivery.<\/span> The Distributor shall at its own cost insure each Order with a reputable insurer for the full invoice amount of such Order. Such insurance shall provide for full coverage against all risks from the time the Products are delivered until the Distributor has paid the Supplier for such Products in full and without any set-off or deduction. The Distributor shall produce to the Supplier on demand full particulars of such insurance and the receipt for the then current premium. Such insurance shall be the Distributor’s sole recourse if a delivery of the Products is damaged after delivery at the delivery or (as applicable) collection address. The Supplier reserves all rights with respect to the Products delivered as permitted by Applicable Law including, without limitation, the rights of rescission, repossession, resale and stoppage in transit until the full amount due from the Distributor in respect of all Products delivered has been paid in full and without any set-off or deduction.<\/span><\/p>\n 8.7 Distributor\u2019s public, product and employers\u2019 liability insurance coverage.<\/span> The Distributor shall at its own cost for the duration of this Agreement and for a period of 2 years thereafter, maintain public liability, product liability and employers\u2019 liability insurance coverage, with a reputable insurer in minimum amounts of one million Euros (EUR 1,000,000) per occurrence, and two million Euros (EUR 2,000,000) in the aggregate. All such policies shall provide that they may not be cancelled or modified without 30 days prior written notice to the Supplier. The Distributor shall provide a copy of the certificate of insurance, insurance policies and proof of payment of the current premium to the Supplier <\/span>within 5 days of a request. If the Distributor party fails to effect a renewal, the Supplier shall be entitled to effect the insurance at the cost of the Distributor. The liabilities of the Distributor shall not be deemed to be released or limited by the respective insurance policies in place.<\/p>\n 8.8 Distributor\u2019s retailers\u2019 public, product and employers\u2019 liability<\/span> insurance coverage<\/span>. The Distributor shall procure that for the duration of this Agreement and for a period of 2 years thereafter, its retailers maintain public liability, product liability and employers\u2019 liability insurance coverage, with a reputable insurer in minimum amounts of one million Euros (EUR 1,000,000) per occurrence, and two million Euros (EUR 2,000,000) in the aggregate. The Distributor shall keep a copy of its retailers\u2019 certificate of insurance, insurance policies and proof of payment of the current premium and provide to the Supplier within 5 days of a request. If the Distributor\u2019s retailer fails to effect a renewal, the Distributor shall terminate its relationship with the non-compliant retailer or otherwise have adequate contractual provisions in place to entitle it to effect the insurance at the cost of the Distributor\u2019s non-compliant retailer. The liabilities of the Distributor shall not be deemed to be released or limited by the respective insurance policies in place.<\/span><\/p>\n <\/p>\n 9. INTELLECTUAL PROPERTY<\/strong><\/p>\n 9.1 Grant of right to use the Trademarks.<\/span> The Supplier and its Affiliates grant to the Distributor a revocable, non-exclusive right, in the Territory, to use the Trademarks in the promotion, advertisement and sale of the Products, subject to, and for the duration of, this Agreement only. The Distributor acknowledges and agrees that all rights in the Trademarks shall remain in the Supplier and its Affiliates, and that the Distributor 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 Trademarks as expressly provided in this Agreement.<\/span><\/p>\n 9.2 Use of the Trademarks<\/span>. The Distributor:<\/span><\/p>\n (a) shall promote, advertise and sell the Products only under the Trademarks, and not in association with any other trademark, brand or trade name, except as expressly permitted under this Agreement;<\/p>\n (b) shall not use the Trademarks as part of the name under which the Distributor 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 under this Agreement;<\/p>\n (c) shall not sub-license, assign, transfer, charge, or otherwise encumber the right to use, reference, or designate the Trademarks to any other party, except as otherwise expressly permitted under this Agreement;<\/p>\n (d) shall not adopt, use (except as permitted by this Agreement) or attempt to register any mark which is a colorable imitation of or confusingly similar to any of the Trademarks and further agrees not to challenge or contest the validity of the Trademarks or any registrations thereof, or Supplier\u2019s title to the Trademarks;<\/p>\n (e) shall not, without the prior written approval of the Supplier, alter or make any addition to the labelling or packaging of the Products displaying the Trademarks;<\/p>\n (f) shall not, without the prior written approval of the Supplier, make any addition or modifications to the Products or to any advertising and promotional materials supplied by the Supplier; or<\/p>\n (g) shall not, without the prior written approval of the Supplier, alter, deface or remove any reference to the Trademarks, any reference to the Supplier or any other name attached or affixed to the Products or their packaging or labelling.<\/p>\n 9.3 Assistance in respect of Trademarks.<\/span> The Distributor shall promptly give notice to the Supplier in writing if it becomes aware of:<\/span><\/p>\n (a) any infringement or suspected infringement of the Trademarks or any other intellectual property rights relating to the Products within the Territory; or<\/p>\n (b) any claim that any Product or the manufacture, use, sale or other disposal of any Product within the Territory, whether or not under the Trademarks, infringes the rights of any third party.<\/p>\n 9.4 Conduct of claims<\/span>.<\/p>\n (a) In respect of any matter that falls within Clause 9.3 (Assistance in respect of Trademarks<\/i>):<\/p>\n (i) the Supplier and its Affiliates shall in its absolute discretion, decide what action to take in respect of the matter (if any);<\/p>\n (ii) the Supplier and its Affiliates shall conduct and have sole control over any consequent action that it deems necessary and the Distributor shall on being so requested by the Supplier and at the Supplier\u2019s cost assist in taking all steps to defend the rights of the Supplier including the institution at the Supplier\u2019s cost of any actions which it may deem necessary to commence for the protection of any of its rights; and<\/p>\n (iii) the Supplier and its Affiliates shall pay all costs in relation to that action and shall be entitled to all damages and other sums that may be paid or awarded as a result of that action.<\/p>\n (b) Notwithstanding any other clause of this Agreement, if a claim or action arises from any acts or omissions by the Distributor in its performance of this Agreement, the costs of such claims and actions shall be borne by the Distributor.<\/p>\n 9.5. Goodwill.<\/u> The Distributor recognises the great value of the reputation and goodwill associated with the Supplier\u2019s Trademarks and acknowledges that such reputation and goodwill exclusively belong to and inure to the benefit of the Supplier and its Affiliates, and that the Trademarks are distinctive and are associated with the Supplier\u2019s goods and goodwill in the minds of the consuming public. The Distributor further acknowledges that all of its use of the Trademarks pursuant to this Agreement inures to the benefit of the Supplier and its Affiliates.<\/p>\n 9.6 Domain names and social media.<\/u> If, with the prior written approval of the Supplier, the Distributor registers any domain name or social media channels in the Territory that includes a Trademark, the Distributor shall without delay assign such registration to the Supplier or its designee at the Supplier\u2019s request and cost. The Supplier or its Affiliates may at any time and at its sole discretion require the Distributor to discontinue such domain name(s) or social media channels (or remove reference to the Supplier and the Trademarks from such social media channels) if this Agreement is terminated.<\/p>\n 9.7 Effect of termination.<\/u> On termination of this Agreement for any reason, the Distributor shall immediately stop using all or any part of the Trademarks, domain names and social media channels.<\/p>\n <\/p>\n 10. PRODUCT LIABILITY AND PRODUCT RECALLS<\/strong><\/p>\n 10.1 Supplier\u2019s insurance cover.<\/span> For the duration of this Agreement, the Supplier shall maintain adequate public and product liability insurance with a reputable insurer.<\/span><\/p>\n 10.2 Product warranties.<\/span> SUPPLIER AND ITS AFFILIATES <\/span>EXPRESSLY EXCLUDE AND DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR BY OPERATION OF LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS, WHICH ARE NOT EXPRESSLY SET OUT IN THIS AGREEMENT TO THE EXTENT PERMITTED BY APPLICABLE LAW.<\/p>\n 10.3 Distributor\u2019s assistance with Product recalls<\/span>. The Distributor shall, at the Supplier\u2019s cost, provide any assistance that the Supplier reasonably requires to recall, as a matter of urgency, Products from the retail or wholesale market. The Distributor undertakes to maintain appropriate, up-to-date and accurate records to enable the immediate recall of any Products or batches of Products from the retail or wholesale markets. These records shall include records of deliveries to customers, including batch numbers, delivery date, name and address of customer, telephone number and email address. In the event of a recall, the Distributor shall not make any statement to the press or public concerning the recall without the prior written approval of the Supplier.<\/span><\/p>\n 10.4 Distributor\u2019s liability for Product recalls.<\/span> Notwithstanding any other clause of this Agreement, if a product recall arises from any acts or omissions by the Distributor in its performance of this Agreement, the Distributor shall indemnify the Supplier and its Affiliates for the cost of goods sold and out-of-pocket expenses incurred by the Parties in connection with the recall.<\/span><\/p>\n <\/p>\n 11. COMPLIANCE<\/strong><\/p>\n 11.1 Compliance with Applicable Law.<\/span> The Distributor shall at its own expense comply with all Applicable Law relating to its activities under this Agreement, together with any conditions binding on it in any applicable licences, registrations, permits and approvals.<\/span><\/p>\n 11.2 Compliance with Supplier\u2019s Business Partner Code of Conduct.<\/span> The Distributor shall comply with the Supplier\u2019s Business Partner Code of Conduct (as unilaterally amended by the Supplier from time to time) and which is available on request.<\/span><\/p>\n 11.3 Compliance with the Supplier\u2019s Sustainability Packaging Guidelines.<\/span> The Distributor shall comply with the Supplier\u2019s Sustainability Packaging Guidelines (as unilaterally amended by the Supplier from time to time) and which is available on request.<\/span><\/p>\n <\/p>\n 12. LIMITATION OF LIABILITY<\/strong><\/p>\n 12.1 Unlimited liability<\/span>. Nothing in this Agreement shall limit or exclude the liability of the Supplier or the Distributor for:<\/span><\/p>\n (a) Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);<\/p>\n (b) Fraud or fraudulent misrepresentation or wilful breach of contract or wilful misconduct; or<\/p>\n (c) Any matter in respect of which it would be unlawful to exclude or restrict liability.<\/p>\n 12.2 Limitations of liability.<\/u> Subject to Clause 12.1 (Unlimited liability<\/i>):<\/p>\n (a) Neither the Supplier, its Affiliates nor the Distributor shall under any circumstances whatsoever be liable to the other, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, for:<\/p>\n (i) Any loss of profit, revenue, business opportunity or anticipated savings;<\/p>\n (ii) Any loss that is an indirect or secondary consequence of any act or omission of the Party in question; or<\/p>\n (iii) Any punitive or exemplary damages.<\/p>\n (b) Notwithstanding any other clause of this Agreement, the total liability of the Supplier, its Affiliates and the Distributor in respect of all other loss or damage arising under or in connection with this Agreement, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, shall in no circumstances exceed the previous completed Year\u2019s sales value or EUR 1,000,000, whichever is lower. During the first 12 month period from the Start Date, liability under this clause shall be calculated with reference to the Minimum Sales Target set out in the Commercial Terms (if applicable) or anticipated sales value during that period as set out in the Order or otherwise agreed in writing between the Parties.<\/p>\n (c) The liability of the Supplier and its Affiliates in respect of any Product warranties are excluded to the extent of any act or omission on the part of the Distributor including but not limited to the use or storage of the Products in abnormal conditions.<\/p>\n (d) Notwithstanding any other clause of this Agreement, any claims in respect of any Products must be notified to the Supplier within 60 days from the date of the Order Form or within 60 days of knowledge of the event giving rise to a claim, whichever is earlier, subject to a de minimis of EUR 5,000 in respect of each claim.<\/p>\n <\/p>\n 13. DURATION AND TERMINATION<\/strong><\/p>\n 13.1 Initial Term and termination with notice<\/span>.<\/p>\n (a) If Commercial Terms have been signed between the Parties, this Agreement will come into effect on the Start Date and, unless terminated earlier in accordance with Clause 13.2 (Early termination with immediate effect and no notice<\/i>), it shall continue for the Initial Term specified in the Commercial Terms after which it shall automatically terminate without notice, unless otherwise agreed in writing between the Parties<\/p>\n (b) If Commercial Terms have not been signed between the Parties, this Agreement will come into effect on the Start Date and, unless terminated earlier in accordance with Clause 13.2 (Early termination with immediate effect and no notice<\/i>), it shall continue for 5 years or until one Party gives the other not less than 6 months\u2019 prior written notice to terminate, whichever is earlier.<\/p>\n 13.2 Early termination with immediate effect and no notice<\/span>. Without affecting any other right or remedy available to it, the Supplier may terminate this Agreement with immediate effect (i.e. earlier than the Initial Term or without having to serve 6 months prior written notice) by notifying the Distributor in writing if:<\/span><\/p>\n (a) The Distributor commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 60 days after being notified in writing to do so;<\/p>\n (b) The Distributor fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;<\/p>\n (c) The Distributor fails to achieve the Minimum Sales Target by 10% or more in any Year (if applicable);<\/p>\n (d) The Distributor repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that the Distributor\u2019s conduct is inconsistent with the Distributorhaving the intention or ability to give effect to the terms of this Agreement;<\/p>\n (e) The Distributor\u2019s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy, including but not limited to a petition for bankruptcy, any form of insolvency or liquidation proceedings, any arrangement for the benefit of its creditors or if a receiver is appointed;<\/p>\n (f) There is a change of Control of the Distributor;<\/p>\n (g) The Supplier or its Affiliates cease to produce or distribute generally the Products; or<\/p>\n (h) The Distributor fails to discharge its compliance obligations under Clause 11.2 (Compliance with Supplier\u2019s Business Partner Code of Conduct)<\/i>.<\/p>\n 13.3 Early termination with notice for force majeure.<\/span> Neither Party shall be in breach of this Agreement nor liable for any direct or indirect loss, damage or delay in performing, or failure to perform, any of its obligations under this Agreement if such loss, damage, delay or failure results from events, circumstances or causes beyond its reasonable control, including but not limited to, any act of God, strike, lockout, labour dispute, riot, civil unrest, insurrection, war or other military action, fire, storm, flood, tempest, accident, mechanical failure, epidemic, pandemic, transport issues, statutory intervention and government regulation. If the period of delay or non-performance continues for 60 days, the Party not affected may terminate this Agreement by giving 30 days\u2019 written notice to the affected Party. This clause does not, however, excuse either Party from its obligation to make any payments due under this Agreement or in any way grant an extension of time to make such payments.<\/span><\/p>\n <\/p>\n 14. CONSEQUENCES OF TERMINATION<\/strong><\/p>\n 14.1 \n
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