Trade Distribution Agreement & Terms
This Agreement between the buyer (“The Distributor”) and Kandid London Ltd, a company registered in England and Wales under number 11694880 whose registered office is at 27 Old Gloucester Street, London, WC1N 3AX (“Supplier”).
1.1 Except to the extent expressly provided otherwise, in this Agreement:
"Affiliate" means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
"Agreement" means this agreement including the Schedules and each Order, and any amendments to this Agreement from time to time;
"Business Day" means any weekday other than a bank or public holiday in England;
"Business Hours" means the hours of 09:00 to 18:00 GMT/BST on a Business Day;
"Change" means any change to this Agreement;
"Charges" means the amounts payable in respect of the Products, as set out in the Trade Pricing Document, subject to any variations or discounts agreed in writing by the parties;
"Confidential Information" means the Supplier Confidential Information and the Distributor Confidential Information;
"Control" means the legal power to control (directly or indirectly) the management of an entity (and "Controlled" should be construed accordingly);
"Distributor Confidential Information" means:
(a) any information disclosed by or on behalf of the Distributor to the Supplier during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked as "confidential" or should have been understood by the Supplier (acting reasonably) to be confidential; and
(b) the terms of this Agreement;
"Effective Date" means the date at which both parties have affixed their signatures to this Agreement;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Forecast" means a forecast in respect of future Product orders delivered by the Distributor to the Supplier in accordance with Clause 7;
"Forecast Date" means the 1st day of each calendar month during the Term and before the issue of a notice of termination of this Agreement;
"Forecast Period" means the period of 6 calendar months beginning at the end of the calendar month in which the relevant Forecast is issued;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Minimum Term" means, in respect of this Agreement, the period of 3 months beginning on the Effective Date;
"Order" means a binding order between the parties for the supply and purchase of Products made under this Agreement and agreed between the parties in accordance with Clause 6;
"Permitted Purpose" means for use in connection with the sale or marketing of Products;
"Products" means any products that the Supplier supplies or agrees in writing to supply to the Distributor from time to time;
"Reserved Territory" means all countries, territories and areas excluding the Territory, being countries, territories and areas in respect of which the Supplier may from time to time appoint another distributor and those countries, territories and areas that the Supplier has reserved to itself;
"Schedule" means any schedule attached to the main body of this Agreement;
"Supplier Confidential Information" means:
(a) any information disclosed by or on behalf of the Supplier to the Distributor during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as "confidential" or should have been understood by the Distributor (acting reasonably) to be confidential; and
(b) the terms of this Agreement;
"Supplier Trade Marks" means the following registered and unregistered trade marks of the Supplier: the wordmark ‘KANDID’;
"Term" means the term of this Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2; and
"Territory" means The Russian Federation.
2.1 This Agreement shall come into force upon the Effective Date.
2.2 This Agreement shall continue in force indefinitely subject to termination in accordance with Clause 21.
- Non-exclusive distributorship
3.1 The Supplier hereby appoints the Distributor as its non-exclusive distributor for the Products in the Territory during the Term.
3.2 The Distributor shall not actively supply the Products in the Reserved Territory.
- Distributor obligations
4.1 The Distributor shall:
(a) use reasonable endeavours to market, distribute and sell the Products in the Territory;
(b) maintain sufficient stocks of the Products to meet customer demand in the Territory (excluding customer demand that the Distributor could not reasonably have been expected to anticipate);
(c) obtain, at its own expense, any necessary approvals, certifications, governmental or regulatory licences, consents and permits, including all approvals as are required to qualify the Supplier’s Products for sale and use in the Territory for all purposes, both governmental and non-governmental, as soon as reasonably practicable.
(d) provide to the Supplier on request, satisfactory evidence that such approvals, certifications, governmental or regulatory licences, consents and permits have been obtained.
(e) make available, at its own expense, a translated copy of any product documentation or instructions of use in the local language to all customers.
(f) set the selling price at which the Products are sold in the Territory.
(g) be solely responsible for the costs involved in distribution of the Products in the Territory, including sales costs, import duties, any and all banking charges, shipping and handling costs, installation costs or other operating expenses, wire transfer fees and other associated costs with making payment, and taxes.
(h) agrees to comply with all federal, state, local and foreign laws, constitutions, codes, statutes and ordinances of any governmental authority that may be applicable to the Distributor, its activities under this Agreement or the sale of Products, including any age limitations as set by law and all applicable export control laws and regulation.
4.2 The Distributor must not:
(a) represent to any person that it is an agent, sole distributor or exclusive distributor of the Supplier;
(b) pledge or purport to pledge the Supplier's credit;
(c) commit or purport to commit the Supplier to any contracts; or
(d) otherwise incur any liability or potential liability on behalf of the Supplier.
4.4 The Distributor shall be responsible for procuring any third party co-operation reasonably required by the Supplier to enable the Supplier to perform its obligations under this Agreement.
4.5 The Distributor must not without the Supplier's prior written consent make or give any promises, representations, warranties or guarantees:
(a) on behalf of the Supplier; or
(b) in relation to the Products (other than those that are mandatory under applicable law).
4.6 Without prejudice to the Supplier's express obligations under this Agreement, the Distributor must comply with all applicable laws, rules and regulations relating to, and must obtain all licences, permits and approvals required in relation to:
(a) the marketing, promotion and advertising of the Products; and
(b) the import, export, distribution, sale, supply and delivery of the Products.
4.7 The Distributor undertakes that it will not, during the Term and without the prior written consent of the Supplier, take any action that will or is reasonably likely to have a material negative impact on the reputation and/or goodwill of the Supplier.
- Supplier obligations
5.1 The Supplier shall provide to the Distributor all reasonable support, advice and assistance requested by the Distributor in relation to the marketing of the Products by the Distributor in accordance with this Agreement.
5.2 The Supplier agrees to furnish, in English, to Distributor (via email in pdf format) such descriptive literature and technical manuals concerning the Products as Supplier may, from time to time, have available for such purposes. The Distributor shall have the right to translate such materials into the languages of the Territory at its own expense. The Supplier shall retain ownership of all proprietary rights, including, intellectual property rights to the translated versions of the materials. The Distributor will be solely responsible for the accuracy of the translations.
5.3 The Supplier undertakes that it will not, during the Term and without the prior written consent of the Distributor, take any action that will or is reasonably likely to have a material negative impact on the reputation and/or goodwill of the Distributor.
- Order procedure
6.1 Before the agreement of an Order, the parties may discuss and negotiate the terms of the proposed Order, but no contractual obligations to supply or purchase the Products shall come into force until the procedure set out in this Clause 6 has been completed.
6.2 The parties shall comply with the following procedure in respect of the agreement of an Order. First, the Distributor shall deliver to the Supplier a written request, which shall include the quantities of Products that the Distributor wishes to order; second, the Supplier shall deliver to the Distributor a written quotation, which shall set out the quantities of Products that the Supplier is prepared to supply and the Charges payable in respect of the proposed Order; third, if the Distributor agrees to the terms of the quotation, the Distributor shall deliver to the Supplier a written notice of acceptance of the quotation. An Order in respect of the Products identified in the quotation shall come into force upon the delivery of that written notice of acceptance.
6.3 The supply of all Products by the Supplier to the Distributor under or relating to this Agreement shall be subject to Schedule 1 (Terms and conditions of supply).
- After-sales support
7.1 The Distributor shall provide email support to its customers for the Products in the Territory in relation to the use of the Products and the identification of defects in the Products.
7.2 The Supplier shall provide email support to the Distributor's customers for the Products in the Territory in relation to the resolution of issues arising out of defects in the Products.
- No assignment of Intellectual Property Rights
8.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Supplier to the Distributor, or from the Distributor to the Supplier.
- Licence of Supplier Trade Marks
9.1 The Supplier grants to the Distributor a non-exclusive licence to use the Supplier Trade Marks in the Territory during the Term for the purposes (and only for the purposes) of sales and marketing, providing that the Supplier has given its prior written consent in relation to the type of use in question.
9.2 The Distributor must not sub-license the rights granted in Clause 9.1 without the prior written consent of the Supplier. Any sub-licence of the Supplier Trade Marks shall automatically terminate upon the termination of this Agreement.
9.3 The Distributor must ensure that all uses of the Supplier Trade Marks will be in accordance with any style guide provided or made available by the Supplier to the Distributor.
9.4 The Distributor shall ensure that all instances of the use of the Supplier Trade Marks will be of a reasonable professional standard.
9.5 The Distributor shall ensure that:
(a) the ® symbol will always be used in conjunction with the registered Supplier Trade Marks; and
(b) the ™ symbol will always be used in conjunction with the unregistered Supplier Trade Marks.
9.6 Notwithstanding any other provision of this Agreement, the Distributor must not use the Supplier Trade Marks in any way that will or may:
(a) invalidate or lead to the revocation of or otherwise jeopardise any registered trade mark protection benefiting the Supplier Trade Marks;
(b) assist with any application to cancel or invalidate any registered Supplier Trade Mark or any opposition to any application by the Supplier to register any Supplier Trade Mark;
(c) cause harm to the goodwill attaching to any of the Supplier Trade Marks;
(d) prejudice the right or title of the Supplier to the Supplier Trade Marks; or
(e) bring the Supplier or any Supplier Trade Mark into disrepute.
9.7 Save as expressly permitted by this Agreement or with the Supplier's written authorisation, the Distributor must not, during the Term, use, register or apply to register any trade mark, service mark, logo, sign, business name, company name or domain name that is identical or confusingly similar to any Supplier Trade Mark.
9.8 All goodwill arising as a result of, or in relation to, the use of the Supplier Trade Marks will accrue exclusively to the Supplier.
9.9 Following receipt of a written request from the Supplier to do so, the Distributor shall promptly execute any document that is reasonably required to enable the Supplier to register, record or protect its rights in the Supplier Trade Marks, and shall provide reasonable assistance to the Supplier in relation to any application to register a Supplier Trade Mark, or in relation to the maintenance of any Supplier Trade Mark registration.
9.10 If the Supplier considers that a use of the Supplier Trade Marks by the Distributor breaches the provisions of this Clause 9 or is otherwise undesirable, the Supplier may issue a notice to the Distributor requesting that such usage cease, and the Distributor must ensure that such usage will cease within 5 Business Days following receipt of such a notice.
9.11 The Distributor shall promptly comply with all reasonable written requests made by the Supplier concerning the use of the Supplier Trade Marks.
9.12 In respect of each public use of the Supplier Trade Marks, the Distributor must identify the Supplier as the owner of the Supplier Trade Marks using a form of acknowledgement to be agreed by the parties acting reasonably.
9.13 The Distributor will not by virtue of this Agreement obtain or claim any right, title or interest in or to the Supplier Trade Marks except as expressly set out in this Agreement.
9.14 Within 10 Business Days following the termination of this Agreement, the Distributor must cease to use the Supplier Trade Marks and must:
(a) remove or permanently obscure Supplier Trade Marks that appear on any works and materials in the possession or control of the Distributor; and
(b) to the extent that neither removal nor permanent obscuring is practicable, deliver to the Supplier or destroy (as the Distributor shall determine) all those works and materials in the possession or control of the Distributor on which the Supplier Trade Marks appear.
10.1 The Distributor shall pay the Charges to the Supplier in accordance with this Agreement.
10.2 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Distributor to the Supplier.
10.3 If there is a material increase in the cost to the Supplier of obtaining or supplying the Products, the Supplier may increase the Charges by giving to the Distributor written notice of the increase at any time before supply of the Products, providing that:
(a) the Supplier must give that notice as soon as reasonably practicable;
(b) the Distributor shall have the right upon receipt of that notice to terminate this Agreement; and
(c) any increase under this Clause 10.3 must not exceed the increase in cost to the Supplier.
11.1 The Supplier shall issue an invoice for the Charges to the Distributor promptly following the agreement of an Order in respect of the Products.
11.2 The Distributor must pay the Charges to the Supplier as set out in the Payment Terms on the invoice. Unless stated otherwise, payment is due in advance of the Order being prepared for dispatch.
11.3 The Distributor must pay the Charges by debit card, credit card, direct debit or bank transfer (using such payment details as are notified by the Supplier to the Distributor from time to time).
11.4 If the Distributor does not pay any amount properly due to the Supplier under this Agreement, the Supplier may:
(a) charge the Distributor interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the Distributor pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
- Confidentiality obligations
12.1 The Supplier must:
(a) keep the Distributor Confidential Information strictly confidential;
(b) not disclose the Distributor Confidential Information to any person without the Distributor's prior written consent;
(c) use the same degree of care to protect the confidentiality of the Distributor Confidential Information as the Supplier uses to protect the Supplier's own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Distributor Confidential Information; and
12.2 The Distributor must:
(a) keep the Supplier Confidential Information strictly confidential;
(b) not disclose the Supplier Confidential Information to any person without the Supplier's prior written consent;
(c) use the same degree of care to protect the confidentiality of the Supplier Confidential Information as the Distributor uses to protect the Distributor's own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Supplier Confidential Information; and
(e) not use any of the Supplier Confidential Information for any purpose other than the Permitted Purpose.
12.3 Notwithstanding Clauses 12.1 and 12.2, a party's Confidential Information may be disclosed by the other party to that other party's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.
12.4 No obligations are imposed by this Clause 12 with respect to a party's Confidential Information if that Confidential Information:
(a) is known to the other party before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the other party; or
12.5 The restrictions in this Clause 12 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.
12.6 Upon the termination of this Agreement, each party must immediately cease to use the other party's Confidential Information.
12.7 The provisions of this Clause 12 shall continue in force indefinitely following the termination of this Agreement.
13.1 The Supplier warrants to the Distributor that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
13.2 The Distributor warrants to the Supplier that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
13.3 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
- Distributor indemnity
14.1 The Distributor shall indemnify and shall keep indemnified the Supplier against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Supplier and arising directly or indirectly as a result of any breach by the Distributor of this Agreement.
- Limitations and exclusions of liability
15.1 Nothing in this Agreement will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
15.2 The limitations and exclusions of liability set out in this Clause 15 and elsewhere in this Agreement:
(a) are subject to Clause 15.1; and
(b) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
15.3 The Supplier shall not be liable to the Distributor in respect of any losses arising out of a Force Majeure Event.
15.4 The Supplier shall not be liable to the Distributor in respect of
(a) loss of revenue or income;
(b) any loss of use or production;
(c) any loss of business, contracts or opportunities.
(d) any loss or corruption of any data, database or software.
(e) any special, indirect or consequential loss or damage.
- Force Majeure Event
16.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
16.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
16.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
17.1 Either party may terminate this Agreement by giving to the other party not less than 30 days' written notice of termination after the end of the Minimum Term.
17.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party commits any breach of this Agreement, and the breach is not remediable;
(b) the other party commits a breach of this Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or
(c) the other party persistently breaches this Agreement (irrespective of whether such breaches collectively constitute a material breach).
17.3 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
- Effects of termination
18.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.2, 4.1, 4.2, 4.5, 4.6, 5.1, 5.2, 6.2, 9, 9.14, 11, 12, 14, 15, 19, 20, 21, 22, 23, 24, 25 and Schedule 1 (Terms and conditions of supply).
18.2 Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.
- No waivers
19.1 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
19.2 No waiver of any breach of any provision of this Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of this Agreement.
20.1 If a provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
20.2 If any unlawful and/or unenforceable provision of this Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
- Third party rights
21.1 This Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.
21.2 The exercise of the parties' rights under this Agreement is not subject to the consent of any third party.
22.1 This Agreement may not be varied except by means of a written document signed by or on behalf of each party.
- Entire agreement
23.1 The main body of this Agreement and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
23.2 Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement.
23.3 The provisions of this Clause 23 are subject to Clause 15.1.
- Law and jurisdiction
24.1 This Agreement shall be governed by and construed in accordance with English law.
24.2 Any disputes relating to this Agreement shall be subject to the exclusive jurisdiction of the courts of England.
25.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
25.2 The Clause headings do not affect the interpretation of this Agreement.
25.3 References in this Agreement to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.
25.4 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.