SHEERSENSE LTD DISTRIBUTOR TERMS AND CONDITIONS
1. BACKGROUND. The Supplier wishes to appoint the Distributor as its non-exclusive distributor for the promotion and sale of the Products to the Exclusive Customers within the Territory (as defined below), and the Distributor wishes to promote and sell the Products to the Exclusive Customers within the Territory on the terms of this agreement.
2. DEFINITIONS AND INTERPRETATION. The definitions and rules of interpretation in this clause apply in this agreement and the Background. Commencement Date: the date of the Distributor’s Application being accepted by the SheerSense Limited. The Company: SheerSense Limited of Devlex House, Silverhills Road, Decoy Industrial Estate, Newton Abbot, Devon TQ12 5ND. Control: the ability to direct the affairs of another person, whether by virtue of the ownership of shares, contract or otherwise. Distributor: the person named as The Distributor. Exclusive Customers: the group of customers specified in Schedule 2. Genealogies are the Lines of Sponsorship of the Supplier’s Distributors, including data relating to those Distributors, whether or not they are in the Distributor’s upline or downline. Minimum Quantity: the quantities of the Products specified in Schedule 4 or such other quantities as may be agreed in writing between the parties in relation to each order. A Person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors or permitted assigns. Products: the products of the type and specification manufactured and packed under the Trade Marks and listed in Schedule 1 and any other products developed by the Supplier and which the Supplier may permit the Distributor, by express notice in writing or by email, to distribute to the Exclusive Customers. The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. The Supplier: SheerSense Limited of Devlex House, Silverhills Road, Decoy Industrial Estate, Newton Abbot, Devon TQ12 5ND. Business Day: a day (other than a Saturday, Sunday or public holiday in England) when banks in London are open for business. Term: the term of this agreement, as determined in accordance with Section 13. Territory: the areas specified in Schedule 2. Trade Marks: the trade mark registrations and applications listed in Schedule 3 and any further trade marks that the Supplier may permit, or procure permission for, the Distributor to use in the Territory in respect of the Products by express notice in writing or by email. VAT: value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax. VAT Group: a group for the purposes of sections 43 to 43D (inclusive) of the Value Added Tax Act 1994 and the Value Added Tax (Groups: eligibility) Order 2004 (SI 2004/1931). Year: the period of 12 months from the Commencement Date. Clause, schedule and paragraph headings shall not affect the interpretation of this agreement. Any reference to this agreement includes the Schedules. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Words in the singular shall include the plural and vice versa. A reference to one gender shall include a reference to the other gender. A reference to any party shall include that party’s personal representatives, successors or permitted assigns. A reference to a statute, statutory provision or any subordinated legislation made under a statute is a reference to such statute, provision or subordinated legislation as amended or re-enacted from time to time, whether before or after the date of this agreement and in the case of a reference to a statute is also to all subordinate legislation made under that statute whether before or after the date of this agreement; provided that, as between the parties, no such amendment or re-enactment shall apply for the purposes of this agreement to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of, any party. A reference to ‘writing’ or ‘written’ includes faxes and email. Documents ‘in agreed form’ are documents in the form agreed by the parties and initialled by or on behalf of them for identification. Any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to what most nearly approximates to the English legal term in that jurisdiction. A reference to a ‘document’ is a reference to that document as varied or novated (in each case, other than in breach of the provisions of this agreement) at any time. References to ‘clauses’ and ‘schedules’ are to the clauses and schedules of this agreement. Where any statement is qualified by the expression so far as SheerSense Limited is aware or to PARTY’s knowledge (or any similar expression), that statement shall be deemed to include an additional statement that it has been made after due and careful enquiry. Any phrase introduced by the terms ‘including’, ‘include’, ‘in particular’ or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. Any reference in the agreement to any person, when construing any provision in relation to VAT, shall (where appropriate and unless the context otherwise requires) be construed, at any time when such person is treated as a member of a VAT Group, to include a reference to the representative member of such group at such time (so that a reference to x, for example, would read “x or the relevant representative member of the VAT Group of which x is a member (as the case may be)”) (the term “representative member” to have the same meaning as for the purposes of the VAT Grouping Legislation).
3. APPOINTMENT. The Supplier appoints the Distributor as its non-exclusive distributor to distribute the Products to the Exclusive Customers in accordance with the terms of this agreement, and to sponsor other willing individuals into distributorships. The Distributor shall purchase the Products only from the Supplier, and shall not for the Term or for the period of two years from the Commencement Date (whichever shall be the shorter) distribute or manufacture any goods which compete with the Products. The Distributor shall not: represent itself as an employee or agent of the Supplier for any purpose being an independent operator in business on its own account; or pledge the Supplier’s credit; or give any condition or warranty on the Supplier’s behalf; or make any representation on the Supplier’s behalf; or commit the Supplier to any contracts. The Distributor shall not without the Supplier’s prior written consent make any promises or guarantees about the Products beyond those contained in the promotional material supplied by the Supplier.
4. DISTRIBUTOR’S UNDERTAKINGS. The Distributor undertakes and agrees with the Supplier that at all times during the Term it will: use its best endeavours to promote the distribution and sale of the Products to the Exclusive Customers; not to resell the Products at a price less than the resale price from time to time specified by the Supplier in writing; not to sell the Products on Ebay, Amazon; submit written reports at regular intervals to the Supplier, showing details of sales, service stock, 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; maintain, on its own account, an inventory of the Products at levels which are appropriate and adequate for the Distributor to meet all customer delivery requirements for the Products of the Exclusive Customers throughout the Territory; keep full and proper books of account and records clearly showing all enquiries, quotations, transactions and proceedings relating to the Products; allow the Supplier, on reasonable notice, access to its accounts and records relating to the Products for inspection; keep all stocks of the Products which it holds in conditions appropriate for their storage, and provide appropriate security for the Products, all at its own cost; insure at its own cost with a reputable insurance company all stocks of the Products as are held by it against all risks which would normally be insured against by a prudent businessman to at least their full replacement value and produce to the Supplier on demand full particulars of that insurance and the receipt for the then current premium; 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’s duties in this agreement, comply with the law, the Codes of Practice of the Direct Selling Association and the terms of this Agreement; be responsible for reporting its income to HMRC and for paying National Insurance and income tax as required by law; comply with these obligations, including acting in accordance with the Supplier’s Terms of Agreement.
5. SUPPLY OF PRODUCTS. The Supplier undertakes to use its best endeavours to meet all orders for the Products forwarded to it by the Distributor in accordance with the Supplier’s terms of delivery. The Distributor shall buy the Products for his/her own account for resale under this agreement. The Supplier may make changes to the specifications of the Products, provided the changes do not adversely affect the quality of the Products. The Supplier may vary the products in Schedule 1 as it thinks fit to exclude one or more of the Products from this agreement if the production of such Products is permanently or temporarily discontinued for any reason. The Supplier shall give notice of any changes to Product specifications to the Distributor as soon as reasonably practicable. The Distributor must place an order with the Supplier that exceeds £200 every six months.
6. SUPPLIER’S UNDERTAKINGS. The Supplier undertakes to: supply the Products only to the Distributor for resale to the Exclusive Customers in the Territory. The Supplier retains the right to supply the Products directly to Exclusive Customers; provide any information and support that may reasonably be requested by the Distributor to enable it to discharge its duties under this agreement properly and efficiently; approve or reject any promotional information or material submitted by the Distributor within 28 days of receipt.
7. PRICES AND PAYMENT. The prices to be paid by the Distributor to the Supplier for the Products are to be the Supplier’s list prices as notified to the Distributor by the Supplier from time to time. The prices applicable as at the Commencement Date are set out in Schedule 5. The Supplier shall give the Distributor 14 days notice of any rises in the prices for the Products. Any and 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. The Distributor shall pay the full amount invoiced to it by the Supplier in pounds sterling within 30 days of the date of invoice. If payment is requested by the Supplier in advance of supply, the Distributor agrees to make the payment in advance to the Supplier prior to process of any order. The Distributor may not withhold payment of any amount due to the Supplier because of any set-off, counter-claim, abatement, or other similar deduction. Interest shall be chargeable on any amounts overdue at the rate of 3% per annum above the base rate of Lloyds Bank Plc from time to time. The interest period shall run from the due date for payment until receipt of the full amount by the Supplier whether before or after judgement.
5. VAT AND TAXES. All sums payable under this agreement, or otherwise payable by any party to any other party under this agreement are exclusive of any VAT chargeable on the supplies for which such sums (or any part of them) are the whole or part of the consideration for VAT purposes. Where, under this agreement, any party makes a supply to any other party (Recipient) for VAT purposes and VAT is or becomes chargeable on that supply for which the supplying party is required to account to the relevant tax authority, the Recipient shall, subject to the receipt of a valid VAT invoice, pay the supplying party (in addition to, and at the same time as, any other consideration for that supply) the amount of such VAT. Where any party is required by this agreement to reimburse or indemnify any other party for any cost or expense, that first party shall reimburse or indemnify the other party for the full amount of the cost or expense, including any VAT on that amount, except to the extent that the other party is entitled to credit or repayment for that VAT from any relevant tax authority. All taxes, charges, levies, assessments and other fees of any kind imposed on the purchase or import of the Products shall be the responsibility of, and for the account of, the Distributor.
8. ADVERTISING AND PROMOTION. The Distributor shall: be responsible for advertising and promoting the Products (but the Distributor shall not use any advertising materials, promotional literature or film without the Supplier’s prior verbal and written consent); submit an advertising and promotion programme to the Supplier for its prior approval; arrange advertising at its own expense; display advertising materials and other signs provided by the Supplier; observe all directions and instructions given to it by the Supplier for promotion and advertisement of the Products; and not make any written statement as to the quality or manufacture of the Products without the prior written approval of the Supplier. The Supplier shall provide the Distributor with information on the advertising and promotion carried out by the Supplier. The Supplier shall supply any available promotional and advertising material that the Distributor reasonably requests at the cost of the Distributor. The Supplier shall, where the parties agree, participate with the Distributor in fairs and exhibitions in the UK. Unsolicited email advertisements (”spam”) are specifically prohibited, and shall be deemed to constitute unethical activity by any participating Distributor. It is the sole responsibility of the Distributor to comply with all local laws relating to email marketing programs. Distributors are strongly urged to utilise reputable “opt-in” email address lists exclusively. The use of any trademarked or copyrighted material in an unsolicited email advertisement (“spam”) is specifically prohibited. The use of trademarked or copyrighted material may not be made with automatic calling devices, or through unsolicited mass mailings to solicit Distributors and/or retail customers. The Distributor shall ensure that any website that it uses for the sale of the Products complies with the quality standards and criteria that are set out in Schedule 7.
9. COMPLIANCE WITH LAWS AND REGULATIONS. The Supplier will be responsible for product delivery to the Distributor. The Distributor shall be responsible for any amounts payable in connection with the importation and delivery of the Products. The Distributor warrants to the Supplier that it has informed the Supplier of all laws and regulations affecting the manufacture, sale, packaging and labelling of Products which are in force within the UK or any part of it at the date of this agreement. The Supplier, in turn, warrants to the Distributor that the Products comply with the Local Regulations in force at the date of this agreement. The Distributor shall give the Supplier as much advance notice as reasonably possible of any prospective changes in the Local Regulations. On receipt of notification from the Distributor under the previous clause, the Supplier shall endeavour to ensure that the Products comply with any change in the Local Regulations by the date of implementation of that change, or as soon as is reasonably possible afterwards.
10. CONDITIONS OF SALE. The Supplier’s conditions of sale in force from time to time shall apply to all sales by the Supplier to the Distributor under this agreement. The conditions of sale that apply at the Commencement Date are set out in Schedule 6. If there is any inconsistency between those conditions of sale and the terms of this agreement, the latter shall prevail.
11. TRADE MARKS. The Supplier hereby grants to the Distributor the non-exclusive right, in the UK, to use the Trade Marks in the promotion, advertisement and sale of the Products, subject to, and for the duration of, this agreement. The Products shall be sold under the Trade Marks. On all Products, containers and advertisements for the Products, the Trademark symbol shall be used and the registered Trade Marks or “TM” shall be used with any Trade Mark application. All representations of the Trade Marks that the Distributor intends to use shall be submitted to the Supplier for approval before use. The Distributor shall not, without the prior written consent of the Supplier, alter or make any addition to the labelling or packaging of the Products displaying the Trade Marks. The Distributor shall not alter, deface or remove any reference to the Trade Marks, any reference to the Supplier or any other name displayed on the Products or their packaging or labelling. The Supplier makes no representation or warranty as to the validity or enforceability of the Trade Marks nor as to whether they infringe any intellectual property rights of third parties in the Territory. The Distributor shall not sub-license, transfer or otherwise deal with the rights of use of the Trade Marks granted under this agreement. The Distributor shall not do, or omit to do, anything in its use of the Trade Marks that could adversely affect their validity. The Distributor shall immediately enter into any document necessary for the recording, registration or safeguarding of the
Supplier’s Trade Mark rights with the Supplier for the marketing of the Products under the Trade Marks in a form satisfactory to the Supplier. Each party shall promptly give notice in writing to the other if it becomes aware of: any infringement or suspected infringement of the Trade Marks or any other intellectual property rights relating to the Products within the Territory; or any claim that any Product or the manufacture, use, sale or other disposal of any Product within the Territory, whether or not under the Trade Marks, infringes the rights of any third party. In respect of any matter that falls within the previous sentence: the Supplier and the Distributor shall agree: what steps to take to prevent or terminate the infringement; and the proportions in which they shall share the cost of those steps and any damages and other sums which may be awarded to or against them; and failing agreement between the parties, either party may take any action as it considers necessary or appropriate, at its own expense, to defend the claim and shall be entitled to and responsible for all damages and other sums that may be recovered or awarded against it as a result of that action.Each party shall, at the request and expense of the other, provide any reasonable assistance to the other (including the use of its name in, or being joined as a party to, proceedings) with any action to be taken by the other party under this section, provided that that party is given such indemnity as it may reasonably require against any losses, costs and expenses it may incur as a result of or in connection with providing such assistance.
12. PRODUCT LIABILITY AND INSURANCE. Subject to the Distributor fulfilling all the conditions in this clause, the Supplier shall indemnify the Distributor against any liability incurred by the Distributor in respect of damage to property, death or personal injury arising from any fault or defect in the materials or workmanship of the Products and any reasonable costs, claims, demands and expenses arising out of or in connection with that liability, except to the extent the liability arises as a result of the action or omission of the Distributor. The Distributor shall, as soon as it becomes aware of a matter which may result in a Relevant Claim: give the Supplier written notice of the details of the matter; give the Supplier access to and allow copies to be taken of any materials, records or documents as the Supplier may require to take action under this section; allow the Supplier the exclusive conduct of any proceedings and take any action that the Supplier requires to defend or resist the matter, including using professional advisers nominated by the Supplier; and not admit liability or settle the matter without the Supplier’s written consent. During the Term, the Supplier shall maintain product liability insurance with a reputable insurer for any one occurrence and any one year for any and all liability (however arising) for a claim that the Products are faulty or defective. The Supplier shall provide a copy of the insurance policy and proof of payment of the current premium to the Distributor on request. 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, fax number and e-mail address). The Distributor shall, at the Supplier’s cost, give any assistance that the Supplier shall reasonably require to recall, as a matter of urgency, Products from the retail or wholesale market.
13. DURATION AND CANCELLATION. This agreement begins on the Commencement Date and, subject to other clauses in this Section and the Section of Force Majeure, shall continue for a term of one year and subject to an annual fee which may be adjusted periodically. The Distributor has the right to cancel this Agreement within 14 days of making it and to recover monies paid by giving written notice to the Supplier at its address above. Upon cancellation the Distributor will be entitled to a complete refund in respect of goods purchased by the Distributor from the Supplier or from any other participant in the scheme provided that those goods remain unsold by the Distributor, are in the same condition as supplied to the Distributor and are returned to the Supplier within 14 days of the making of the Agreement. Upon cancellation, the Distributor also has the right within 14 days of making the Agreement to cancel any services the Distributor has ordered under the scheme and to recover any monies paid in respect of such services not yet supplied.
14. TERMINATION. The Supplier reserves the right, for any reason, to terminate this Agreement immediately by giving the Distributor written notice within 14 days of the date of this Agreement. At any time after 14 days from the making of this Agreement, either party may terminate this Agreement by giving to the other not less than 14 days written notice. Notice of termination shall be given to the other party at the latter’s latest address, either that given on this Agreement or such other address subsequently notified in writing to the terminating party. If the contract is terminated by the Supplier or, after the first 14 days, by the Distributor, the Distributor has the following rights: the Distributor will incur no future contractual obligations under the Agreement; the Distributor will have the right, within 21 days of the termination, to return to the Supplier at its latest address all products purchased by the Distributor from the Supplier within the 90 days prior to the termination and to recover from the Supplier the (VAT inclusive) price paid by the Distributor for them, less a reasonable handling charge and, in the case of goods which have deteriorated because of the Distributor’s own fault, less an amount to reflect their resulting diminution in value (these deductions will not be made where the Supplier terminates the contract); where the Supplier terminates the Agreement, the Supplier will refund the Distributor’s reasonable carriage costs in returning the products. In addition, after termination, the Distributor will have the right (in accordance with,and subject to, the terms set out in the Code of Business Practice of the Direct Selling Association) to return and claim a partial refund for products which the Distributor purchased more than 90 days and up to one year prior to termination and which remain unsold by the Distributor. Without affecting any other rights that it may be entitled to, either party may give notice in writing to the other terminating this agreement immediately if: the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or the other party commits a material breach of any material term of this agreement (other than failure to pay any amounts due under this agreement) and (if such breach is remediable) fails to remedy that breach within a period of 14 days of being notified in writing to do so; or the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement; or the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party [other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or the other party, being an individual, is the subject of a bankruptcy petition or order; or a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in above clauses in this Section; the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or the other party, being an individual, dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation; or there is a change of Control of the other party; or the other party purports to assign its rights or obligations under this agreement (except in accordance with the Section on Variations). For the avoidance of doubt, a breach of any of clauses under the Section of Force Majeure is a material breach for the purposes of this clause. Subject to the following clause, the Supplier may give notice in writing to the Distributor terminating this agreement immediately if the Distributor fails in any 3 month to purchase the Minimum Quantity for that period. For the purposes of the previous clause only, if in any Year the Distributor fails to purchase the Minimum Quantity, it may
carry forward any excess purchases over the Minimum Quantity made in the previous month to make up the difference between the actual quantity purchased and the Minimum Quantity.
15. EFFECTS OF TERMINATION. Termination of this agreement for any reason shall not affect any rights or liabilities accrued at the date of termination. The Supplier may reclaim commissions and bonuses paid to the Distributor in respect of contracts cancelled or goods returned to the Supplier, except that after termination of the Agreement, no commission or bonus will be reclaimable by the Supplier more than 120 days after it was paid. On termination: the Supplier shall have the option to buy from the Distributor any stocks of the Products at such price as the Supplier reasonably considers to be their current market value. To exercise the option, the Supplier must give notice to the Distributor within 14 days of termination, stating the quantities of Products it wishes to buy. The Distributor shall deliver such Products to the Supplier within 14 days of receiving the Supplier’s notice, and the Supplier shall pay for the Products in full within 30 days of their delivery. The Distributor shall be responsible for the costs of packaging, insurance and carriage of the Products. If the Supplier chooses not to exercise its option to buy back the Products under the previous clause, or purchases only part of the Distributor’s stocks of Products, the Distributor shall dispose of its remaining stocks of Products as directed by the Supplier. At the end of this period the Distributor shall promptly return all remaining stocks of the Products to the Supplier at the expense of the Distributor, or dispose of the stocks as the Supplier directs. If the Supplier chooses to buy back the Products, or when the 2 month period expires, the Distributor shall at the Supplier’s option promptly destroy or return all samples, technical
pamphlets, catalogues, advertising materials, specifications and other materials, documents or papers that relate to the Supplier’s business that the Distributor may have in its possession or under its control (other than correspondence between the parties); and the termination of this agreement shall not of itself make the Supplier liable to pay any compensation to the Distributor, including, for loss of profits or goodwill. Subject to the previous clause, all other rights and licences of the Distributor under this agreement shall terminate on the termination date. The Supplier may cancel any orders for Products placed by the Distributor before termination if delivery would fall due after termination, whether or not they have been accepted by the Supplier. The Supplier shall have no liability to the Distributor in respect of such cancelled orders.
16. CONFIDENTIALITY. Each party undertakes that it shall not at any time or at any time during this agreement and for a period of two years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as provided by the next clause. The Distributor agrees that both during the Agreement and for a period of six months after its termination, the Distributor will not compete with the Supplier’s business (whether by selling, promoting or distributing competing products or otherwise) and in particular will not work as a direct seller for any organisation competing with the Supplier. The Distributor agrees that information held by the Supplier relating to its genealogies is and shall at all times remain the intellectual property of the Supplier. The Distributor will at all times treat such information as confidential and will use such information only to the extent necessary to operate the distributorship under this Agreement and only so long as the Distributor remains active as a distributor under this Agreement. Upon termination of this Agreement, the Distributor will destroy any copies of it that are in your possession. The obligations in this paragraph shall survive the termination of this Agreement. The Supplier will use the Distributor’s personal data only for the purposes of its business. This may include the transmission of information to other companies in the Supplier’s group which are outside the European Union in countries which may not have the same level of data protection legislation as the EU. The Supplier will take all reasonable steps to keep such personal data secure and confidential. The Distributor agrees to the use of the Distributor’s personal data as just set out. The Distributor agrees to take all reasonable steps to protect personal data of others which the Distributor obtains operating the distributorship (including that of customers and other direct sellers) and to use such information only as necessary in the course of the distributorship and to destroy all such information upon termination of this Agreement. Each party may disclose the other party’s confidential information: to those of its employees, officers, representatives or advisers who need to know such information for the purpose of carrying out the party’s obligations under this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Section; and as may be required by law, court order or any governmental or regulatory authority. No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this agreement.
17. FORCE MAJEURE (“UNSEEN EVENTS”). A party, provided that it has complied with the provisions of the next sentence, shall not be in breach of this agreement, nor liable for any failure or delay in performance of its obligations under this agreement arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (“Unforeseen Events”), including any of the following: Acts of God, including flood, earthquake, windstorm or other natural disaster; epidemic or pandemic; war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions; terrorist attack, civil war, civil commotion or riots; nuclear, chemical or biological contamination or sonic boom; any law or government order, rule, regulation or direction, or any action taken by a government or public authority, including but not limited to imposing an embargo, export or import restriction, quota or other restriction or prohibition, or failing to grant a necessary licence or consent; fire, explosion (other than in each case one caused by a breach of contract by, or assistance of, the party seeking to rely on this clause or companies in the same group as such party) or accidental damage; loss at sea; adverse weather conditions; collapse of building structures, failure of plant machinery, machinery, computers or vehicles; any labour dispute, including strikes, industrial action or lockouts [(other than in each case by the party seeking to rely on this clause, or companies in the same
group as such party); non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and interruption or failure of utility service, including but not limited to electric power, gas or water. A party that is subject to a Force Majeure Event shall not be in breach of this agreement provided that: it promptly notifies the other parties in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance; and it could not have avoided the effect of the Force Majeure Event by taking precautions which, having regard to all the matters known to it before the Force Majeure Event, it ought reasonably to have taken, but did not; and it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event to carry out its obligations under this agreement in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible. If the Force Majeure Event continues for a continuous period of more than six months, any party may terminate this agreement by giving 14 days’ written notice to all the other parties. On the expiry of this notice period, this agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this agreement occurring prior to suchtermination.
18. ENTIRE AGREEMENT. This agreement (and any document referred to in it) constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Each party acknowledges that, in entering into this agreement (and any document referred to in it), it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this agreement. Nothing in this clause shall limit or exclude any liability for fraud.
19. VARIATION. Subject to other clauses in this document regarding variation, no amendment or variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). This Agreement and The Terms of Agreement as amended from time to time together comprise the entire agreement between the parties. 60 days notice will be given of any changes to the terms of this Agreement or the document just listed. In the event of a conflict between the documents, the Distributor Terms and Conditions shall prevail.
20. ASSIGNMENT AND OTHER DEALINGS PROHIBITED. This agreement is personal to the parties and no party shall, without the prior written consent of the other party (such consent not to be unreasonably conditioned, withheld or delayed), assign, transfer, mortgage, charge, declare a trust of or deal in any other manner with this agreement or any of its rights and obligations under or arising out of this agreement (or any document referred to in it), or purport to do any of the same. No party shall sub-contract or delegate in any manner any or all of its obligations under this agreement to any third party or agent. Each party that has rights under this agreement is acting on its own behalf and not for the benefit of another person.
21. FREEDOM TO CONTRACT. The parties declare that they each have the right, power and authority and have taken all action necessary to execute and deliver and to exercise their rights and perform their obligations under this agreement.
22. WAIVER. No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
23. SEVERANCE. If any provision of this agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this agreement, and the validity and enforceability of the other provisions of this agreement shall not be affected. If a provision of this agreement (or part of any provision) is found illegal, invalid or unenforceable, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original
24. NOTICES. Any notice or other communication required to be given under this agreement, shall be in writing and shall be delivered personally, or sent by pre-paid first class post or recorded delivery or by commercial courier, to each party required to receive the notice or communication at its address as set out here: Supplier: Ian Tait,
relevant party by notice in writing to each other party. Any notice or other communication shall be deemed to have been duly received: if delivered personally, when left at the
address and for the contact referred to in this clause; or if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; or if
delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed. A notice or other communication given under this agreement shall not
be validly given if sent by e-mail. The provisions of this Section shall not apply to the service of any proceedings or other documents in any legal action.
25. THIRD PARTY RIGHTS. A person who is not a party to this agreement shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third
Parties) Act 1999 but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act. The rights of the parties to terminate, rescind or
agree any variation, waiver or settlement under this agreement are not subject to the consent of any person that is not a party to this agreement.
26. NO PARTNERSHIP OR AGENCY. Except as expressly provided, nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, nor authorise a party to make or enter into any commitments for or on behalf of the other party.
27. GOVERNING LAW AND JURISDICTION. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-
contractual disputes or claims) shall be governed by and construed in accordance with English law. The parties irrevocably agree that the courts of England and Wales shall
have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual
disputes or claims). This agreement has been entered into on the date stated on the Terms of Agreement.
Schedule 1. The Products: The products available for purchase will be as published.
Schedule 2. Territory and Exclusive Customers. Territory is the United Kingdom, Channel Islands and the Isle of Man, and the Republic of Ireland. Exclusive Customers: All customers – new or potential within the territory area.
Schedule 3. The Trade Marks: Current Trade mark information can be obtained on request.
Schedule 4. Minimum Quantity: There are no minimum quantities applicable. The postal charges will be covered by the purchaser.
Schedule 5. Prices and Commission: Prices and Distributor’s Commission will be as published. Commission payments do not attract VAT and do not apply to Registration
fees, Lips Kit purchase or promotions in which Distributor Discounts are greater than 40%. Distributor Commission cannot be paid if annual Registration Fees are unpaid.
Schedule 6. Supplier’s conditions of sale: The Conditions of Sale document can be found on the website at www.SheerSense.com. Your statutory rights will not be affected.
Schedule 7. Supplier’s Quality Standards and Criteria for Internet Sales: If the Distributor uses a third party website to distribute the Products, that website shall comply with these quality standards and conditions. In particular, if the Distributor’s website is hosted by a third party platform, the Distributor shall ensure that customers do not visit its website through a site carrying the name or logo of the third party platform. The use on the Internet of any SheerSense or SeneGence trademarked or copyrighted material, including but not limited to SheerSense and SeneGence trade names, logos, artwork, and anything that is similar to SheerSense or SeneGence trademarked or copyrighted material, shall be subject at all times to the general requirement that such use be specifically approved in writing by SheerSense Limited. Any use on the Internet of trademarked or copyrighted material must identify the Distributor boldly, clearly, and prominently as an Independent Distributor of SheerSense Limited. When included in listings of any kind, Distributor websites must appear under the most appropriate topical heading available through that service. Where available, such listings can appear only in “Independent Distributor,” “Independent Contractor,” or “Distributor” categories, and the Distributor must list him or her self as an Independent Distributor rather than as “SheerSense” or “SeneGence” or anything that could cause consumers to believe that the Distributor is the corporate office or anything other than an Independent Distributor. The use on the Internet of any trademarked or copyrighted material shall be specifically limited as follows. Prohibited Uses: Trademarked or copyrighted material shall not be used as any part of a domain name or URL (Internet address) (This policy applies to all domain names and URLs, regardless of the universal domain extension utilized. For example, www.ILoveSeneGence.com, www.ILoveSeneGence.biz, and https://store.yahoo.com/LipSense.html are all prohibited uses of trademarked or copyrighted material); Trademarked or copyrighted material shall not be used as any part of a meta tag or website description of a Distributor’s website (such material shall not be used anywhere in the HTML source code of a Distributor’s website (except as otherwise specifically authorized herein)); Distributors may not place buttons, pop-up ads, banners, or any other type of Internet advertisement on any website, or anywhere on the Internet, using trademarked or copyrighted material; Distributors may not offer any SeneGence product for sale on any auction site or other website where sale of product is conducted through the solicitation of offers on the Internet; Distributors may not in any way purposely direct Internet traffic to unapproved websites or allow Internet traffic to be directed to unapproved websites using trademarked or copyrighted material. Limited Uses: Trademarked or copyrighted material shall not be used as part of the content of any website or webpage, except on a Company-approved website or if specifically approved by SheerSense Limited or as provided to the Distributors by SheerSense as a website page referencing the product and the Distributor’s Site; Trademarked or copyrighted material shall not be used by Distributors to register for any Internet search engine or other information retrieval system on the Internet, except as approved in writing by SheerSense Limited.
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SheerSense Ltd. Reg. No. 07487540 Registered Office: 5 Pellew Arcade, Teign Street, Teignmouth, Devon TQ14 8EB.
Administration Office: SheerSense Ltd, Devlex House, Silverhills Road, Decoy Industrial Estate, Newton Abbot, Devon TQ12 5ND. V.A.T. Reg. No. 122 3004 82