Links
  • Compare ()
  • Sign In
  • Contact Us
  • Create an Account
|
Toggle Nav
Menu
Account
Advanced Search

My Account
Cart 0 Shopping Cart
VAT/taxes will be calculated based on your delivery address country at checkout

Terms And Conditions

NON-EXCLUSIVE DISTRIBUTOR AGREEMENT

 

This Non-Exclusive Distributor Agreement (“Agreement”) shall be considered as legally binding agreement, under the Applicable Laws (as defined hereinunder) between You, details as submitted by you in the Form (hereinafter referred to as “Distributor” which expression shall include your its successor(s) and assign(s)) and SharkEye Wheel Aligners UK LTD (Company number 09480492), a company incorporated under the provisions of UK Companies Act, 2006 and having its registered address at Bramley Way, Hellaby, Rotherham, South Yorkshire, S668QB (hereinafter referred to as “Manufacturer”, which expression shall include its successor(s) and assign(s)). Hereinafter, the Manufacturer and Distributor shall be collectively referred to as “Parties” and individually as “Party”.It is mandatory for the Distributor to read the terms and conditions of this Agreement carefully before clicking on ‘I Agree’ button. By clicking on ‘I Agree’ button, the Distributor is agreeing to be legally bound by the terms and conditions contained herein. If You do not agree to all or any of the terms and conditions of this Agreement, immediately click on the “I DO NOT AGREE”. By clicking on ‘I Agree’ button, the Distributor agrees to becomes non-exclusive distributor of the Products (as defined hereinunder) of the Manufacturer in the Territory (as defined hereinunder).

 

  1. DEFINITIONS
  • “Applicable Law(s)” shall mean (i) statues, enactments, acts of legislature or parliament, laws, ordinances, rules, by-laws, regulations, notifications, guidelines or policies of any applicable jurisdiction (including jurisdictions in which the relevant party is incorporated and/or carry on any business or activities); (ii) injunction, directions, directives, judgment, arbitral award, decree, orders or governmental approvals of, or agreements with any governmental authority.
  • “Approval(s)” shall mean any approval, consent, permit, license, authorization, certificate, exemption, filing, registration, ordinance, guidelines, policies, notices, direction, directives and standards of any governmental authority which are legally mandatory in nature and/or other requirements for the business of the concerned Party and for carrying on the transaction under this Agreement.
  • “Confidential Information” means any documents, data, or information related to the any Party’s business that is not generally known to the public including, but not limited to, all tangible, intangible, visual, electronic, present, or future information such as (a) financial information; (b) technical information, including but not limited to research, development, procedures, data, designs, and technical know-how; (c) business information, including but not limited to business, operations, planning, marketing interests, and other information disclosed by Manufacturer to the Distributor: (d) personal information of any customers (e) all information or data which any party has access in connection with performance of the this Agreement, whether before or after execution of the present agreement (f) all confidential or proprietary concepts, documentation, reports, lists, files, data, specifications, software, source code, object code, flow charts, databases, data files, inventions, information, know- how and trade secrets, whether or not patentable or copyright.
  • “Customers” shall mean the end purchasers of the Products whose principal offices and operations are located in the Territory excluding the House Accounts.
  • “DSSL Products” shall mean those Products according to the Distributor Standard Stock List or “DSSL”, as Manufacturer and the Distributor shall maintain and modify from time to time.
  • “House Accounts” shall mean those Customers in the Territory who purchase Products directly from Manufacturer. House Accounts designated by Manufacturer at the time of execution of this Agreement are set forth on Annexure (Part B) attached hereto, which may be amended or updated by Manufacturer from time to time at its sole discretion.
  • “Non-standard Products” shall mean those Products not referenced in the DSSL that require special testing, packaging or otherwise to be modified as requested by the Distributor and approved by Manufacturer in writing.
  • “Intellectual Property” shall mean any and all now known or hereafter known tangible and intangible rights of any Party including but not limited to all intellectual property rights (of every kind and nature throughout the universe and however designated) (including logos, designs, etc.), whether arising by operation of law, contract, license, or otherwise and business of a Party; all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing); patents, designs, algorithms, software, databases, layouts, and other industrial property rights; rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask-works; rights to sue for passing off or for unfair competition, trade secret right; trademark and trade name rights and similar rights ; and tools and methodologies and all other similar or equivalent rights subsisting now or in the future in any part of the world, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights for their full term.
  • “Products” shall mean the products offered by Manufacturer for sale to the Distributor including Non-standard Products and which are more specifically specified in Annexure (Part A) attached hereto, as amended by the Manufacturer from time to time.
  • “Territory” shall mean the geographic area of Distributor as more specifically specified in
  • Form attached hereto.

 

  1. APPOINTMENT OF THE DISTRIBUTOR
  • Subject to the terms and conditions of this Agreement, the Distributor hereby agrees an accepts to be engaged as non-exclusive authorized distributor for selling, promoting and marketing of the Products of the Manufacturer in the Territory to the Customers.

     The Distributor hereby acknowledges and agrees that:

  • this is a non-exclusive and non-transferable appointment, and that the Manufacturer retains the right to appoint any additional distributors, without liability or obligation to the Distributor.
  • The Manufacturer, in its sole discretion, reserves the right to amend, add or modify the list of Products as specified in Annexure (Part A).
  • The Manufacturer has reserved its right to advertise and sell it Products (including through its website) to the Customers in the Territory. In the event Manufacturer notifies the Distributor that Manufacturer has designated a Customer brought by the Distributor in pursuance of this Agreement as a new House Account, such Customer will become a House Account effective Ninety (90) days following such notice. At the Manufacturer’s sole discretion, the Manufacturer may compensate the Distributor for extraordinary sales and distribution efforts rendered by the Distributor prior to the designation of the new House Account under this Clause 2 (Appointment of the Distributor).
  • The Distributor shall make it clear in all dealings with the Customers and the prospective customers that it is acting as distributor of the Products and not as agent of the Manufacturer.
  • It shall not, during the Term of this Agreement, directly or indirectly market, sell, distribute, solicit orders within the Territory for any products which are competitive with the Products unless the Manufacturer consents thereto in writing in advance, based upon the Distributor’s full disclosure of the material facts in seeking such consent. Any such breach of this clause shall be considered as material breach of this Agreement.

 

  1. ORDERS AND ACCEPTANCE
  • Purchase Orders. The Distributor shall initiate by submitting written purchase orders (each, an “Order”) to Manufacturer. The Orders shall state unit quantities, unit descriptions, requested delivery dates, and shipping instructions.
  • The Distributor hereby agrees that (a) no Order shall be binding upon Manufacturer until accepted by Manufacturer in writing (b) the Manufacturer may reject in whole or in part; and (c) Partial shipment of an Order shall not constitute acceptance of the entire Order.
  • This Agreement shall govern all Orders placed by the Distributor for units of the Product and this Agreement shall prevail over the terms and conditions of the Order, whether contained in the Distributor’s pre-printed forms or otherwise. No terms and conditions on Orders, invoices or any other like documents produced or provided by the Distributor shall alter or add to the terms of this Agreement.
  • Order Requirements. The Distributor’s single Order amount shall be in multiples of the unit quantity (“Minimum Order”) calculated in numbers of cartons according to specifications of Manufacturer set forth in Annexure (Part A). Orders for less than Minimum Order multiples will be increased without prior notice to the next larger multiple. Non-standard Products may have higher minimum purchase requirements as determined by Manufacturer.
  • Lead Time. The Distributor shall submit Orders to Manufacturer in accordance with a lead time as specified in Annexure (Part A) as advised by Manufacturer. In no event the lead time for Non-standard Products shall be less than two (2) months.
  • Cancellations. Except as provided herein, all Orders for Products are non-cancellable and Products are non-returnable (NC/NR). Subject to Manufacturer’s written approval, Orders for DSSL Products may be rescheduled or cancelled subject to the cancellation fees as specified in Annexure (Part A). The Nonstandard Products are at all times non-cancellable. Distributor shall contact Manufacturer in advance for pricing and delivery information for Orders of Non-standard Products.
  • Rolling Forecast. The Distributor shall provide Manufacturer at least one month in advance with a good faith rolling quarterly sales forecast for the units of the Products to be provided by Manufacturer to the Distributor hereunder during each month in such calendar quarter.
  • The Distributor shall (a) ensure the accuracy and correctness of each Order for the Products ; (b) promptly provide all information and details as required by the Manufacturer in relation to the Order; (c) Obtain all necessary Approvals including but not limited to import licenses as required for the purpose of undertaking its responsibilities under this Agreement.

 

  1. PRICES; PRICE CHANGES; SPECIAL PRICING
  • Manufacturer Price. Subject to the terms and conditions of this Agreement, the Distributor shall pay for the Products at then current price of Manufacturer (“Manufacturer Price”) at the time of placement of the Order.
  • Price Change. The Distributor hereby agrees that the Manufacturer solely has the right to (a) determine the amount of Manufacturer Price (b) revise the Manufacturer Price, at any time, which will be intimated to the Distributor promptly. Any change in the Manufacturer Price shall apply to all Orders received after the effective date of such change as specified in the notice, except that any Manufacturer Price increase shall be effective immediately upon receipt of notice to the Distributor and apply to those accepted but undelivered Orders.
  • Special Pricing. Notwithstanding the Manufacturer Price, special pricing on any one of the Products may be extended to the Distributor, at Manufacturer’s sole discretion, in situations where special pricing is necessary for the Distributor to obtain sale of the Products to a Customer. If Manufacturer elects to extend such special pricing, it will issue a confidential meet comp quote number documenting the special price quoted for such Customer. Upon receipt of the meet comp quote number, the Distributor shall ship the Products to the Customer from stock and debit Manufacturer for the difference between their invoiced amount, less any prior credits granted by Manufacturer, and the new special pricing. The meet comp quote number shall be included on all such debits.
  • Taxes. All Manufacturer Prices are exclusive of any VAT, export, withholding, federal, state and local taxes, duties or excises or other taxes as applicable (“Taxes”) other than taxes based on Manufacturer’s net income. If Manufacturer pays any Taxes which are not included in the Manufacturer Price charged for the Product, the Manufacturer will itemize such Taxes as a separate item on its invoices to the Distributor, and the Distributor shall reimburse Manufacturer for such Taxes within 15 (Fifteen) days from the receipt of such invoice.
  • Payment: The Manufacturer will submit an invoice to the Distributor upon shipment of Products to the Distributor stating the amount to be paid by the Distributor with respect to the The Distributor shall make the payment in accordance with the invoice within 30 (Thirty) days from the receipt of the invoice by way of transfer to bank account as in Annexure (Part A) and all payments by the Distributor shall be in GBP.
  • Late Payments. All amounts which are not timely paid by the Distributor as required by this Agreement shall be subject to a late charge equal to two percent (2%) per month. In the event that any payment due hereunder is overdue, the Manufacturer reserves the right to suspend performance until such breach is cured.
  • All payments to the Manufacturer shall be made without any set off, deduction or withholding by the Distributor except for any Taxes required by Applicable Laws.
  • Time of payment in accordance with the Invoice is of the essence of this Agreement.

 

  1. DELIVERY
  • Packing and Shipping. All Products to the Distributor shall be packaged in Manufacturer’s standard containers, or, at the Distributor’s expense, in accordance with instructions provided by the Distributor, and will be shipped to the Distributor’s address set forth above, or to an address specified in the Order. The shipment shall conform to Manufacturer’s standard shipping procedures, or such terms as both shall agree. Title and risk of loss shall pass to the Distributor at the Delivery Point. All customs duties, freight, insurance and other shipping expenses from the Delivery Point, as well as any other special packing expenses requested by the Distributor, shall be borne by the Distributor. The Distributor agrees to satisfy all import formalities pertaining to shipment of units of the Product to destinations outside the United Kingdom.
  • Inspection and Acceptance. The Distributor shall within thirty (30) days (the “Inspection Period”) upon receipt of each shipment, inspect and test the Products. If the Distributor determines any unit of Products defective, the Distributor shall promptly notify Manufacturer of such defects. Defective Products may be returned for retest, evaluation and examination subject to Manufacturer Returned Material Authorization (“RMA”) procedure;provided, that such written notification and request for an RMA number must be received by Manufacturer during the Inspection Period. Returns must be prepaid by Distributor. When requesting a return authorization, Distributor must provide Distributor’s Order number, lot number, wafer number, Product Details and Manufacturer’s invoice number.
  • Exclusion. Manufacturer will inspect all Products returned pursuant to the foregoing RMA procedures, and Manufacturer will not replace products where the defect is due to misuse, neglect, alteration or improper storage or any other fault, act or omission of the Distributor.

 

  1. DISTRIBUTOR’S RESPONSIBILITY
  • Market Promotion. The Distributor shall, at its own cost and expense, use its best efforts, consistent with prudent business practice, and shall devote such time as may be commercially reasonably necessary, to conduct an aggressive marketing promoting, distributing and selling program and to promote the sale of the Products in the Territory in accordance with the marketing plan (“Marketing Plan”) as approved by the Manufacturer.
  • The Marketing Plan shall contain all details, documents, materials, plans, strategies and other information relating to the marketing, selling and promotion programs to be undertaken by the Distributor in relation to the Product in the Territory in a year.
  • The Distributor shall update the Marketing Plan on an annual basis and obtain prior approval, before the expiry of then current year, of such Marketing Plan from the Manufacturer for undertaking the activities specified in the Marketing Plan in the next year. Further, any change in the Marketing Plan shall require the prior approval of the Manufacturer.
  • The Manufacturer may, at any time during the Term of this Agreement, recall the approval granted in relation to any of the Marketing Plan or any part thereof, in event, it: (a) violates or breaches any intellectual property rights of any third party; (b) is in breach of any Applicable Laws; (c) breaches any provision of this Agreement; or (d) Disgrace or hinders or has adverse impact on the image of the Manufacturer.
  • The Distributor shall(a) Keep all stocks of the Products in such conditions which are appropriate for their storage;(b) Keep the Products purchased by the Distributor under this Agreement, insured, at its own cost;(c) Keep full and proper books of account and records showing the transactions relating to the Products;(d) always undertake the activities for promotion, sale and marketing of the Products in accordance with the Market Plan; (e) comply at its own expense with all Applicable Laws relating to the sale, distribution and promotion of the Products; and (f) shall not export, directly or indirectly, any Products or related information without first obtaining all required Approvals from the appropriate government agencies.
  • Feedbacks. The Distributor shall provide Manufacturer with prompt written notification of any comments or complaints about the Products made by Customers, and of any problems with the Products or their use that the Distributor becomes aware of. Such written notification shall be the property of Manufacturer, and shall be considered to be part of Manufacturer’s Confidential Information. The Distributor hereby agrees and undertakes that the Manufacturer shall be the legal owner, at all times, of any and all Intellectual Property Rights in the Product on account of incorporation of any change in the Product on the basis of said feedbacks.
  • Referral. The Distributor agrees to refer all prospective customers to Manufacturer when the Distributor cannot aggressively pursue distribution to such customers because of geographic location, price and/or volume or any other reason, the Parties will negotiate a reasonable referral fee to be mutually agreed upon. The Distributor shall also refer directly to Manufacturer inquiries relating to bundling, partnership or other business opportunities with third party vendors, hardware and system manufacturers and software developers.
  • Inventory. The Distributor shall maintain an inventory of Products in reasonably sufficient quantities to provide adequate and timely delivery to the Customers. At a minimum, such inventory shall include not less than the quantity of Products necessary to meet Distributor’s reasonably anticipated demands for a thirty (30) day period.
  • Audits. The Manufacturer shall be entitled at any time to audit the Distributor’s books and records upon reasonable, provided, that no more than one such audit may be conducted in any three-month period. Such audit shall be performed at Distributor’s expense during normal business hours and the Distributor shall provide reasonable assistance for the audit.

 

  1. REPRESENTATION AND WARRANTIES

     The Distributor hereby represents and warrants to the Manufacturer:

  • The execution and performance of this Agreement and of the documents referred to in this Agreement are within its power and have been duly authorized and all the requisite corporate approvals have been obtained.
  • It is duly incorporated and organized, validly existing and in good standing under the Applicable Laws.
  • All information, disclosures and documents (including the communication) furnished for purposes of or in connection with this Agreement or any information hereafter furnished, are true and correct in all material respects and no such information omits to state a material fact necessary to make the information so furnished not misleading. There is no fact known which has not been disclosed and which materially and adversely affects the financial condition, business, property, or prospects of the Distributor.
  • It shall not use any derogatory remarks or act in a manner prejudicial, directly or indirectly to the Manufacturer or any person connected therewith.
  • The execution, delivery and performance by it of this Agreement and the acts and transactions contemplated hereby do not and will not, with or without the giving of notice or lapse of time or both, violate, conflict with require any consent under or result in a breach of or default underApplicable Law(s);any order, judgment or decree applicable to it; or any term, condition, covenant, undertaking, agreement or other instruments to which it is a party or by which it is bound.
  • It does not currently represent or promote any line or goods which are similar to or complete with the Products;
  • It has all the requisite Approvals and permissions to enter into this Agreement carry out the obligations as set out in this Agreement, and it shall keep all such Approval renewed and valid at all times during the Term of this Agreement;
  • It shall comply with and cause to be complied with all legal and valid provisions of Applicable Laws in so for as the same relates to the Products and its personnel and/or employees of the Distributor.
  • There is no litigation, proceeding, dispute or action pending or threatened against it, including but not limited to tax, criminal litigation and/or any action by any governmental authority against it, the adverse determination of which might affect the Distributor’s ability to perform any of its obligations hereinunder.
  • The Distributor has the requisite experience and expertise, resources, infrastructure, qualified manpower and other requisite resources to undertake its obligations under this Agreement;
  • There is no insolvency, bankruptcy or winding up proceedings pending or threatened against the Distributor and no action or application has been initiated or filed against the Distributor.
  • Each of representation and warranties under this Agreement is true and correct in all material respect as of the date of this Agreement.

 

  1. INTELLECTUAL PROPERTY RIGHTS
  • Acknowledgement. The Distributor acknowledge and agree that Manufacturer owns all of the Intellectual Property of the Manufacturer. The use by the Distributor of the Intellectual Property of Manufacturer is authorized only for the purposes contained herein and upon termination of this Agreement for any reason, such authorization will cease.
  • No Other Rights. The Distributor shall not, directly or through any person or entity, in any form or manner, copy, distribute, reproduce, incorporate, use or allow access to the Products/ Confidential Information of the Manufacturer or modify, prepare derivative works of, decompile, reverse engineer, disassemble or otherwise attempt to derive source code or object code from the Products, except as explicitly permitted under this Agreement, as amended from time to time.
  • Proprietary Notice. The Distributor shall ensure that all copies of the Products will incorporate copyright and other proprietary notices in the same manner that Manufacturer incorporates such notices in the Products or in any manner reasonably requested by Manufacturer and Distributor will not remove any copyright or other proprietary notices incorporated on or in the Products.
  • Use of Trademarks. During the term of this Agreement, the Distributor may, with prior approval of the Manufacturer: (i) announce to the public that it is an authorized non-exclusive Distributor of the Products, and (ii) advertise the Products under the trademarks, service marks, marks, and trade names that Manufacturer may adopt from time to time (the “Trademarks”).
  • The Distributor understands that Manufacturer has applied for applicable federal and state registration of certain of its trademarks and agrees, upon Manufacturer’s request, to so indicate on the box containing the Products and, in any advertisement, promotional materials or other documents that contain the Products’ names.
  • Nothing herein will grant to the Distributor any right, title or interest in Trademarks. At no time during or after the term of this Agreement will the Distributor challenge or assist others to challenge Trademarks or the registration thereof or attempt to register any trademarks, marks or trade names similar to those of Manufacturer. The Distributor shall follow reasonable trademark usage guidelines communicated by Manufacturer.
  • Use of Trade Names. The Distributor will present and promote the sale of the Products fairly. The Distributor may use Manufacturer’s product names in the Distributor’s advertising and promotional media providedthat the Distributor (i) conspicuously indicates in all such media that such names are trademarks of Manufacturer and (ii) submits all such media to Manufacturer for prior approval and complies with the requirements set forth in this Clause.
  • Upon termination of this Agreement for any reason, the Distributor will immediately cease all use of Products’ names and Trademarks and, at the Distributor’s election, destroy or deliver to Manufacturer all materials in the Distributor’s control or possession which bear such names and trademarks, including any sales literature. The Distributor will not challenge any intellectual property rights claimed by Manufacturer in such trademarks.
  • The Distributor shall not modify or change the Products in any way without the express prior written consent of Manufacturer. The Distributor hereby agrees and undertakes that the Manufacturer shall be the legal owner, at all times, of any and all Intellectual Property Rights in the Product on account of incorporation of any change as provided under this Agreement.

 

  1. CONFIDENTIAL INFORMATION
  • Nondisclosure, Non-Use. Each Party shall treat as confidential all Confidential Information of the other Party, shall not use such Confidential Information except as set forth herein, and shall use reasonable efforts not to disclose such Confidential Information to any third party. Without limiting the foregoing, each of the Parties shall use at least the same degree of care which it uses to prevent the disclosure of its own Confidential Information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other party under this Agreement. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information.
  • Exception. Notwithstanding the above, neither party shall have liability to the other with regard to any Confidential Information of the other which the receiving party can prove (a) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the receiving party; (b) was known to the receiving party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (c) is disclosed with the prior written approval of the disclosing party; (d) was independently developed by the receiving party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (e) becomes known to the receiving party, without restriction, from a source other than the disclosing party without breach of this Agreement by the receiving party and otherwise not in violation of the disclosing party’s rights; (f) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the receiving party shall provide prompt notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.
  • Return of Confidential Information. Upon expiration or termination of this Agreement, each Party shall return all Confidential Information received from the other Party.
  • Remedies. Any breach of the restrictions contained in this Clause is a breach of this Agreement which may cause irreparable harm to the nonbreaching party. Any such breach shall entitle the nonbreaching party to injunctive relief in addition to all legal remedies.
  • Confidentiality of Agreement. Each party shall be entitled to disclose the existence of this Agreement, but agrees that the terms and conditions of this Agreement shall be treated as Confidential Information and shall not be disclosed to any third party; provided, however, that each party may disclose the terms and conditions of this Agreement (a) unless Manufacturer specifically agrees in writing, Manufacturer shall not have any obligation to furnish any data, drawings, prints or the like whatsoever to Distributor or its customers; (b) as required under Applicable Laws; or to legal counsel of the Parties.

 

  1. WARRANTY
  • The warranty, if any, provided by Manufacturer in connection with the Product shall be to the Distributor and the Customers which can be enforced by the Customers either directly from the Manufacturer or through the Distributor.
  • Warranty Period. The Manufacturer provides a limited warranty for each of the Products against defects under normal use and service for a period as specified in Annexure (Part B) from the date of delivery to the Distributor irrespective of the date of sale to the Customer.
  • No Other Warranty. EXCEPT AS EXPRESSLY PROVIDED IN THIS CLAUSE, MANUFACTURER PROVIDES NO WARRANTY, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE PRODUCT AND DOCUMENTATION.

 

  1. INDEMNIFICATION
  • Indemnification by Manufacturer. Manufacturer shall defend or at its option settle, any claim, suit or proceeding brought against the Distributor on the issue of infringement of any issued third-party patents by the Products distributed by the Distributor in the manner permitted in this Agreement. The foregoing obligation is conditioned upon the Distributor providing Manufacturer with prompt notification of any such claim, sole control over the defence and settlement thereof, and all reasonable cooperation in the defence and settlement thereof, provided that the Distributor provides the Manufacturer with (i) prompt written notice of such claim or action, (ii) sole control and authority over the defence or settlement of such claim or action and (iii) proper and full information and reasonable assistance to defend and/or settle any such claim or action.
  • Injunction. In the event that any Product is, or in Manufacturer’s sole opinion is likely to be, enjoined due to the type of infringement as described in Clause 1, Manufacturer, at its option and expense, may either (i) modify the Products so that they become non-infringing, (ii) replace the Products with functionally equivalent non-infringing Products reasonably acceptable to the Distributor or, if the foregoing alternatives are not reasonably available to Manufacturer.
  • Exceptions. Notwithstanding anything in Clause1 and Clause 11.2, Manufacturer will have no liability to the extent that any such claim would have been avoided but for (i) use of the Products with any other products not provided by Manufacturer or (ii) unauthorised modification of the Products after delivery by Manufacturer.
  • Limitation. THE FOREGOING PROVISIONS OF THIS CLAUSE STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF MANUFACTURER AND THE EXCLUSIVE REMEDY OF THE DISTRIBUTOR, WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS BY THE PRODUCTS OR THEIR REPRODUCTION, DISTRIBUTION OR USE.
  • Indemnification by the Distributor. The Distributor agrees to indemnify, defend and hold Manufacturer and its affiliated companies and their directors, officers, employees, and agents ( “Protected Parties”) harmless from and against any and all claims (including those for personal injury or death) and liabilities (including attorneys’ and other professional fees and other costs of litigation) by any other party arising out of or attributable to the Distributor’s representation of the Products in a manner inconsistent with Manufacturer’s Product descriptions , Marketing Plan and warranties or from the Distributor’s marketing, distribution, use or sale of the Products, other than claims described in Clause1.

 

  1. TERM AND TERMINATION
  • Term. This Agreement shall become effective on such date the Distributor clicks on ‘I Agree’ button and shall remain in full force and effect for such period as specified in Annexure (Part A) unless earlier terminated pursuant to the provisions in this Agreement. This Agreement shall expire unless extended by both parties in writing prior to the termination.
  • Termination for Convenience. This Agreement may be terminated by either party for any reason or no reason, whether or not extended beyond the initial term, by giving the other party a prior written notice of such days as specified in Annexure (Part A).
  • Termination for Cause. In event, the Distributor defaults in the performance of any the provision of this Agreement, then the Manufacturer shall give written notice to the Distributor that if the default is not cured within thirty (30) days the Agreement will be terminated.
  • Immediate Termination: Notwithstanding the foregoing, the Manufacturer shall be entitled to terminate this Agreement effective immediately, without any liability, upon delivery of written notice to the Distributor, upon occurrence of any of the following event: (a) Distributor does not pay all the amounts due and payable to the Manufacturer under this Agreement within a period of 90 (Ninety) days from the demand by Manufacturer of such outstanding amounts due and payable; (b) Breach of confidentiality obligation under this Agreement; (c) Breach of Intellectual Property rights of the Manufacturer; or (d) Does any act or omission which is prejudicial, or derogatory to the Manufacturer.
  • Termination for Insolvency and Other Events. This Agreement shall terminate, without notice, (i) upon the institution by or against either party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of such party’s debts, (ii) upon either party’s making an assignment for the benefit of creditors, or (iii) upon either party’s dissolution or ceasing to do business.
  • Effect of Termination. Upon termination of this Agreement, the Distributor shall make such disposition of price lists, advertising materials and other materials furnished by Manufacturer as Manufacturer may direct. Manufacturer’s name, Manufacturer’s Trademarks, and similar identifying symbols shall not be displayed or used by the Distributor thereafter. The Distributor shall make payment of all outstanding amounts due and payable in respect of the Orders placed before the termination within 15 (Fifteen) days from the termination of this Agreement.
  • No Liability. In the event of termination by either Party in accordance with this Agreement, neither Party shall be liable to the other, because of such termination, for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases or commitments in connection with the business or goodwill of either Party. Provided however, that the Termination of this Agreement shall not relieve the Distributor from the obligation to pay the Manufacturer for Products purchased prior to such termination.
  • Survival of Certain Terms. The provisions of Clause 9, 11, 13 and 14.1 of this Agreement, and all payment obligations of the Distributor incurred during the term of this Agreement, shall survive the expiration or termination of this Agreement. All other rights and obligations of the Parties shall cease upon termination of this Agreement.

 

  1. LIMITATION OF LIABILITIES
  • Limitation of Liabilities. IN NO EVENT SHALL MANUFACTURER’S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT RECEIVED BY MANUFACTURER FROM THE DISTRIBUTOR HEREUNDER FOR THE PRODUCT GIVING RISE TO THE LIABILITY. IN NO EVENT SHALL MANUFACTURER BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR STRICT LIABILITY), ARISING OUT OF THIS AGREEMENT. THE DISTRIBUTOR ACKNOWLEDGES AND AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
  • Limitation on Actions. NO ACTIONS, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT, MAY BE BROUGHT BY DISTRIBUTOR MORE SUCH PERIOD AS SPECIFIED IN Annexure (Part A) AFTER THE CAUSE OF ACTION HAS ARISEN.

 

  1. GENERAL
  • Notices: All notices required or permitted hereunder shall be in writing and shall be delivered at the address to the respective address of the Parties (a) by facsimile, or (b) personally, or (c) mailed by certified or registered mail, return receipt requested and postage prepaid, addressed to the addressed below or (d) Email on the registered e-mail address. Delivery by facsimile is effective upon receipt of successful fax transmission and shall be followed by delivery by mail as set forth above. Notice by personal delivery is effective upon receipt of the notice. Notice sent by mail shall for all purposes of this Agreement be treated as being effective or having been given three days after mail. Notice by email shall be treated as being effective immediately after the mail has been sent.
  • Entire Agreement. This Agreement constitutes the entire agreement of the Parties pertaining to the subject matter hereof and supersedes all prior negotiations and drafts, oral or written, with regard to the transactions contemplated herein.
  • No Conflict. In the event of a conflict or inconsistency between the terms of this Agreement and those of any order, quotation, solicitation or other communication from one party to the other, the terms of this Agreement shall override on the later.
  • Amendments and Waivers. No modification, change or amendment to this Agreement shall be effective unless agreed by the Manufacturer in writing. Any failure by a Party to enforce strict performance of any provision of this Agreement shall not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement. All waivers shall be in writing.
  • Successors and Assigns. The Distributor shall not assign any of its rights, obligations or privileges (by operation of law or otherwise) hereunder without the prior written consent of the Manufacturer. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the Parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
  • Independent Contractor. Neither party shall, for any purpose, be deemed to be an agent of the other party and the relationship between the parties shall only be that of independent contractors. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
  • Export Control. Distributor understands that Manufacturer may be subject to regulation by agencies of the United Kingdom government, including the HMRC, which prohibit export or diversion of certain products and technology to certain countries. Any and all obligations of Manufacturer to provide Products, as well as any technical assistance, will be subject in all respects to United Kingdom laws and regulations and will from time to time govern the license and delivery of technology and products abroad by persons subject to the jurisdiction of the United Kingdom. The Distributor warrants that it will comply in all respects with the export and re-export restrictions for all Products shipped to Distributor. The Distributor will take all actions which may be reasonably necessary to assure that no end-user contravenes such United Kingdom laws or regulations.
  • Force Majeure. In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than a payment obligation) due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause beyond the reasonable control of the party invoking this Clause, and if such party shall have used its best efforts to mitigate its effects, such party shall give prompt written notice to the other party, its performance shall be excused, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences. Notwithstanding the foregoing, if such party is not able to perform within thirty (30) days after the event giving rise to the excuse of force majeure, the other party may terminate this Agreement.
  • Set off: The Distributor hereby agrees that the Manufacturer shall be entitled to set off any sum, amount, cost, fee etc. which is payable by the Distributor under this Agreement from any and all payments due from the Distributor under this Agreement.
  • Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith, in order to maintain the economic position enjoyed by each party as close as possible to that under the provision rendered unenforceable. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
  • Choice of Law; Dispute Resolution. This Agreement shall be governed by and construed pursuant to the United Kingdom Laws, without reference to principals of conflicts of laws. All disputes arising out of this shall be settled by final binding arbitration in accordance with rules as specified in laws applicable in United Kingdom and at [•], United Kingdom. Notwithstanding the foregoing, the Parties may apply to any court of competent jurisdiction in [•], United Kingdom, for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration agreement and without any abridgment of the powers of the arbitrators and agree that such courts shall have exclusive jurisdiction of any such action.Each Party shall observe the highest standard of ethics and confirms that it has not engaged in and shall not hereafter engage in any corrupt, fraudulent, coercive undesirable and/or restrictive practice.
  • No Party shall indulge in any activity or participate in any transaction, which is likely to jeopardize, restrict or diminish the reputation and/or goodwill of the other Party(s) to any significant extent, which shall, in turn, affect the performance of this Agreement by the Parties.
  • Each Party undertakes to do any and all acts and execute any and all documents that may be reasonably required by any other Party (at the sole cost of the requesting Party) from time to time in order to give effect to the terms of this Agreement.
  • The Distributor shall be solely liable for payment of all cost and duties applicable in respect of this Agreement including but not limited to stamp duty, notarisation charges, if any, etc.

                                                                                     

FORM

                   

S.No.

 Particulars Details
1. Name of the Distributor  
2.

Constitution of the Distributor

  
3.

Registered/principal office of the Distributor

  
4.

Territory of the Distributor

  
5.

e-mail id of the Distributor

  
6.

Address for providing address to the Distributor

  

 

ANNEXURE

PART A

OTHER COMMERCIAL TERMS AND CONDITIONS

1. Warranty Period  
2. Limitation of liability  
3. Lead Time 28 (Twenty-Eight) to 120 (One Hundred And Twenty) days
4. Term  
5. Notice Period for Termination for Convenience  
6. Bank Account for Payment of Invoice  
7. Cancellation Fee  
8. Time for raising actions under Clause 13.2  
9. Details of Products