Reseller Agreement

(Electronic copy of document FSS-RA-01)

BETWEEN:

 
(1) Argento Global Solutions Ltd, trading as Fire Safety Stick Ltd, a company registered in the United Kingdom under number 11750584 whose registered office is at Unit 8, Ribocon Way, Progress Park, Luton,Beds, LU4 9UR (hereinafter known as the “Supplier”) and
 
(2) The Reseller –  (hereinafter known as the “Reseller”)

WHEREAS:

 
A. We are the sole distributor of the Fire Safety Stick in the UK and Republic of Ireland, which is a manual, portable fire extinguishing device and wishes to appoint the Reseller as its non-exclusive Reseller for the Products in the Territory as detailed below, and the Reseller wishes to accept that appointment.
 
B. It has been agreed that both parties wish to enter into an agreement upon the terms and subject to the conditions of this Agreement to govern that appointment.
 
NOW IT IS HEREBY AGREED as follows:
 
 
1.Definitions and Interpretations
1.1 In this Agreement unless the context otherwise requires:
 “Agreement” – This document including any amendments;
 
“Commencement Date” –  Means the date of this Agreement;
 
“Data Protection Legislation” – means any and all legislation and other regulatory requirements from time to time in force governing the collection, holding, and processing of personal data including, but not limited to, the Data Protection Act 2018 or any successor legislation, and EU Regulation 2016/679 General Data Protection Regulation (GDPR) and any other directly applicable EU regulation relating to privacy and data protection (for so long as EU law has legal effect in the UK);
“Products” – means the Fire Safety Stick;
“Price List”– means the prices that have been provided in writing to you to be amended from time to time;
“Order” – means the initial order and subsequent orders for the Products;
“Territory” – means the United Kingdom and Ireland ONLY
 
1.1    Unless the context otherwise requires, each reference in this Agreement to:-
1.1.1 “writing”, and any similar expression, includes a reference to any communication effected by electronic or similar means;
1.1.2 a “working day” is a reference to any day other than Saturday or Sunday which is not a bank or public holiday in the territory of either party;
1.1.3 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.1.4 “this Agreement” is a reference to this Agreement and each of the Schedules, as amended or supplemented at the relevant time;
1.1.5 a Schedule is a schedule to this Agreement; and
1.1.6 a clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule.
1.2 In this Agreement any reference to:
1.2.1 a party means one of the parties to this Agreement, and any reference to the parties means the two parties to this Agreement;
1.2.2 the parties includes a reference to their respective personal representatives, heirs, successors in title and permitted assignees;
1.2.3 a person includes any body corporate, unincorporated association, partnership or any other legal entity;
1.2.4 a singular number include the plural and vice versa; and
1.2.5 either gender shall include any other gender.
1.3 The headings in this Agreement are for convenience only and shall have no effect on its interpretation.
 
 
2. Appointment
2.1 We appoint the Reseller as a non-exclusive Reseller for the resale of the Products and you agree to act in that capacity, upon the terms of, and subject to the conditions of, this Agreement.
2.2 We reserve the right to sell to any customer and are under no obligation to refer them to the reseller.
2.3 The Reseller shall not:
2.3.1 purchase or otherwise acquire the Products for resale from any person, firm or company other than the Supplier; or
2.3.2 manufacture or distribute any goods which compete with the Products.
2.4    For the avoidance of doubt, we shall be entitled, upon giving reasonable prior notice, to contact customers of yours for the purpose of conducting market research and customer surveys regarding the Products.
 
 
3. Supplier’s Obligations
3.1 The Supplier must:
3.1.1 Make reasonable efforts to supply the Products ordered;
3.1.2 Give the Reseller reasonable notice of any changes (which the Supplier can choose from time to time) in the Supplier’s prices of the Products or the Supplier’s intention to extend the range of, withdraw, modify or discontinue the Products; and
3.1.3 Inform the Reseller within a reasonable time of any problem in meeting any orders.
3.1.4 Allow the Reseller to instruct sub-resellers
 
 
4. Reseller’s Obligations
4.1 The Reseller must:
4.1.1 on the Commencement Date place an initial order for a starter pack which includes POS and other sales literature, and an initial Order for Products for a quantity that has been agreed by both parties; unless an alternative arrangement is agreed;
4.1.2 use all reasonable endeavours to promote and extend the distribution and sale of the Products and shall be entitled as provided in this Agreement, to promote the Products in such manner as you may think fit;
4.1.3 act conscientiously and in good faith, and follow all our reasonable instructions and not in your own interests that may conflict with your duties to the Supplier;
4.1.4 make clear, in all dealings with your customers and prospective customers, that you are acting as a Reseller of the Products for Fire Safety Stick and not as an agent or employee of ours;
4.1.5 buy the Products from the Supplier and not buy similar or the same from any other source;
4.1.6 deal promptly with any complaints, claims or actions relating to the Products with their customers and keep us fully informed of any matters relating to defects or alleged defects;
4.1.7 comply with all legal or regulatory requirements from time to time in force relating to the distribution and sale of the Products;
4.1.8 maintain, at your own expense, appropriate premises, offices, stores, display and administration facilities and any vehicles and systems necessary to carry out your duties under this Agreement;
4.1.9 ensure that the Products are stored and transported in optimum condition and are in compliance with any applicable law or regulations and or our guidance;
4.1.10 maintain regular contact with the Supplier upon request to discuss the marketing and selling of the Products where necessary;
4.1.11 not use third party selling sites or marketplaces to advertise and sell the Products; and
4.1.12 must comply with all warranties of the Products.
4.1.13 Must only sell the products to the UK or Ireland
4.1.14 The Reseller must not, during this Agreement, and for a period of 12 months after the end of this Agreement, be involved directly or indirectly in the manufacture or sale of anything which competes with the Products.
 
 
5. Conditions of Sale
5.1 The title to any consignment of the Products shall not pass to you until we have received payment in full
5.2 Risk of loss of or damage to any consignment of the Products shall pass to you from the time that you take physical possession of them
5.3 The Supplier warrants to the Reseller that:
5.3.1 all Products supplied hereunder will be of satisfactory quality and will comply with any specification agreed for them;
5.3.2 the Trademarks of which registration particulars are given in the definitions are registered in the name of the Supplier or the manufacturer and that it has disclosed to the Reseller all Trademarks and trade names used by the Supplier in relation to the Products;
5.3.3 it is not aware of any rights of any third party which would or might render the sale of the Products, or the use of any of the Trademarks on or in relation to the Products, unlawful; and
5.3.4 the Products will be free from any charge or encumbrance when title in them passes to you
5.4 In the event of any breach of the Supplier’s warranty in Sub-Clause 5.3 by whatever reason and howsoever caused, the Supplier shall be liable for and will indemnify the Reseller against any direct loss, damage, cost or any claim for compensation or any legal or other expenses suffered by the Reseller whether it be direct, indirect, special or consequential.
5.5 All Orders for the Products shall be sold subject to our standard terms and conditions of sale as altered or modified from time to time. A copy of which will be supplied to you with each order.
5.6 We reserve the right to change the design or logo at anytime and in the event of doing such we will notify you of a timescale whereby any advertising material or stock will need to be discontinued and no longer used in any capacity.
5.7 We reserve the right to not fulfil any Order at any time and will not be liable to you
 
 
6. Support and Training
6.1 It is required that all Resellers and their employees must complete the induction training before selling any of the Products.
6.2 The Supplier shall from time to time provide you with such samples, catalogues, brochures and up to date information concerning the Products as we may consider appropriate or as you may reasonably require in order to assist you with the sale of the Products, and we shall use all reasonable endeavours to answer as soon as reasonably practicable any technical enquiries concerning the Products which are made by you.
 
 
7. Intellectual Property
7.1  The Supplier hereby authorises the Reseller to use the Intellectual Property in relation to the Products for the purposes only of exercising its rights and performing its obligations under this Agreement
7.2    The Reseller shall not:
7.2.1 make modifications to the Products or their packaging;
7.2.2 use in relation to the Products any trademarks other than the Trademarks without obtaining the prior written consent of the Supplier;
7.2.3 deface, tamper with, obliterate or remove any of the Trademarks, trade names, logos, insignia or identification numbers which may be embossed upon or affixed to the Products and the packaging therefor supplied to the Reseller by the Supplier;
7.2.4 use any of the Trademarks in any way which might prejudice their distinctiveness or validity or the goodwill of the Supplier subsisting therein;
7.2.5 acquire any right, title or interest in or to any of the trade marks or the goodwill associated in or to any of the advertising, promotional or merchandising work or material for or relating to the Products and belonging to or developed by or for the Supplier; and
7.2.6 use any Intellectual Property or trade names so resembling any trade mark or trade name of the Supplier as to be likely to cause confusion or deception.
7.3       The Reseller shall promptly notify the Supplier of any actual, threatened or suspected infringement or wrongful use which comes to its notice, of any patents, registered designs, copyrights, trade names or the Trademarks relating to the Products and provide the Supplier with all such assistance as the Supplier may reasonably require in attempting to put to an end such infringement or wrongful use.
 
 
8.   Prices and Payment
8.1 Subject to Sub-Clause 8.2 below, the prices payable for the Products shall be as set out in the Price List that is unique to you.
8.2 The Products are sold exclusive of delivery, and where delivery is provided by the Supplier, the Reseller must pay for all transport costs, including transit insurance.
8.3 The Supplier reserves the right to change the prices of any Products at any time during the period of this Agreement and updated prices will be issued via a Price List, but in the event of a proposed increase the Supplier will give the Reseller not less than without notice and the Reseller shall have the right within 1 month of that notice to cancel.
8.4 All sums payable pursuant to this Agreement are exclusive of any value added tax or other tax.  Each party shall be responsible for its own tax liabilities.
8.5 All payments required to be made pursuant to this Agreement shall be made within the terms agreed in writing at the time of the account opening and in GBP in cleared funds to such bank as the other party may from time to time nominate, without any set-off, withholding or deduction.
8.6 If you fail to pay on the due date any amount which is payable to, that amount shall bear interest from the due date until payment is made in full, both before and after any judgment, at 8 per cent per annum over the Bank of England base rate from time to time in force, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. We also reserve the right to cancel or suspend any further delivery of the Products; and/or terminate this Agreement.
 
 
9 Termination
9.1.1 This Agreement shall come into force on the Commencement Date and shall continue until termination has occurred, subject to the following provisions set out below.
9.2 Either party can terminate this Agreement by giving 30 days notice;
9.3 Either party may terminate this Agreement immediately by giving written notice to the other party if:
9.3.1 any sum owing to that party by that other party under any of the provisions of this Agreement is not paid;
9.3.2 that other party commits any other breach of any of the provisions of this Agreement and, if the breach is capable of remedy, fails to remedy it within 14 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
9.3.3 an encumbrancer takes possession, or where that other party is a company, a receiver is appointed, of any of the property or assets of that other party;
9.3.4 that other party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
9.3.5 that other party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other party under this Agreement);
9.3.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to that other party;
9.3.7 that other party ceases, or threatens to cease, to carry on business; or
9.3.8 Control of that other party is acquired by any person or Connected Persons not having Control of that other party on the date of this Agreement.
9.4 We can terminate this Agreement immediately any reason including but not limited to being able to fulfil any and all outstanding or potential Orders.
9.4.1 9.4 For the purposes of Sub-Clause 9.2.2, a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that the time of performance is not of the essence).
 
 
10 Effects of Termination
10.1 On termination, we shall deal with any Orders already received from you before the date of termination as follows
10.1.1 we will not fulfil any such order that has been accepted prior to termination but has not yet been despatched unless the Reseller notifies the Supplier before termination that the Reseller wishes to continue with the Order due to obligations with a third party providing clause 9.2 does not apply; and
10.1.2 the Supplier shall in its discretion decide whether to fulfil any Order and will promptly notify the Reseller of its decision in this respect. If it decides to continue with the cancellation, the Supplier will make the refund concerned;
10.2 All sums which may become due from you in respect to any Products already supplied prior to the effective date of termination shall become due and payable immediately;
10.3 The Supplier shall repurchase from the Reseller any stock of the Products which shall then be in the possession of or under the control of the Reseller for the price paid by the Reseller minus 35% and that the Reseller shall be responsible for the cost of postage and insurance of such re-purchased Products;
10.4 On termination you must
10.4.1 cease to represent yourself as an appointed non-exclusive Reseller of the Products and shall remove all reference to such effect from your promotional literature and website;
10.4.2 cease to advertise or promote the Products or discuss the Products on social media or to make any use of the Trademarks other than for the purpose of selling Products in respect of any contracts already agreed;
10.4.3 at your own expense deliver to us in accordance with our instructions all sales and promotional literature, and unsold Products that are still in your possession;
10.4.4 at your own expense assist us in procuring the cancellation of any sales agreements with your customers and encourage them to directly order through us;
10.4.5 All the rights and obligations of the parties under this Agreement shall terminate, except for any rights or obligations to which any of the parties may be entitled or be subject before its termination (which shall remain in full force and effect) and except as otherwise provided in this Clause 10;
10.5 Neither the rights to terminate given by the provisions of this Agreement nor their exercise shall affect or prejudice either:
10.5.1 any right to damages or other remedy which the terminating party may have in respect of the event giving rise to the termination; or
10.5.2 any other right to damages or other remedy which either party may have in respect of any breach of this Agreement which existed at or before the date of termination; and
 
 
11 Confidentiality
11.1 Each party undertakes that, except as provided by Sub-Clause 11.3 or as authorised in writing by the other party, it shall, at all times during the continuance of this Agreement and for 12 calendar months after its termination:
11.1.1 keep confidential all Confidential Information;
11.1.2 not disclose any Confidential Information to any other person;
11.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of this Agreement;
11.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
11.1.5 ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by that party, would be a breach of the above provisions of this Sub-Clause 11.1.
11.2 Either party may:
11.2.1 disclose any Confidential Information to:-
11.2.1.1 any sub-contractor or supplier or customer of that party;
11.2.1.2 any governmental or other authority or regulatory body; or
11.2.1.3 any employee or officer of that party or of any of the aforementioned persons;
to such extent only as is necessary for the purposes contemplated by this Agreement, or as required by law, and in each case subject to that party first informing the person in question that the Confidential Information is confidential and (except where the disclosure is to any such body as is mentioned in 12.2.1.2 above or any employee or officer of any such body) obtaining and submitting to the other party a written undertaking from the person in question, as nearly as practicable in the terms of this Clause, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
11.2.2 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that
11.2.2.1 it is at the date of this Agreement, or at any time after that date becomes, public knowledge through no fault of that party, provided that in doing so that party does not disclose any part of that Confidential Information which is not public knowledge; or
11.2.2.2 it or any part thereof can be shown by that party, to the reasonable satisfaction of the other party, to have been known to that party prior to such disclosure
11.3 The provisions of this Clause shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.
 
 
12 Liability
12.1  The Supplier shall not, except in respect of death or personal injury caused by their negligence, be liable to the Reseller by reason of any representation or implied warranty, condition or other term or any duty at common law, or under any of the express terms of this Agreement, for any indirect or consequential loss or damage (whether for loss of profit or otherwise and whether occasioned by the negligence of the Reseller or its employees or agents or otherwise) arising out of or in connection with any act or omission of the Reseller.
 
 
13 Indemnity 
13.1 If any claim is made or threatened to be made against the Reseller or its associated companies arising out of or in connection with the Products, due to a fault in the Product and not as a result of the Reseller not following the correct training and mis selling the Product, the Supplier shall indemnify the Reseller in respect of any loss, damages, costs or other claim for compensation or any legal or other expenses which are awarded against or incurred by the Reseller or agreed with the consent of the Supplier to be paid by the Reseller in settlement of the claim
13.2 The indemnity given under Clause 13.1 shall only apply provided that and the Reseller accordingly undertakes to the Supplier that:-
13.2.1 the Supplier shall be given full control of any proceedings or negotiations in connection with any such claim or threatened claim regarding the Product;
13.2.2 the Reseller shall at its own cost give the Supplier all reasonable assistance for the purpose of any such proceedings or negotiations;
13.2.3 except pursuant to a final award, the Reseller shall not pay or accept any such claim or threatened claim, or compromise any such proceedings or negotiations, without the consent of the Supplier  (which shall not be unreasonably withheld);
13.2.4 the Reseller shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Reseller may have in relation to any such claim or threatened claim, and this indemnity shall not apply to the extent that the Reseller recovers any sums under any such policy or cover (which the Reseller shall use its best endeavours to do);
13.2.5 the Supplier shall be entitled to, and the Reseller shall accordingly account to the Supplier for, all damages and costs (if any) awarded against any other party or agreed by the Reseller (which agreement shall not be unreasonably withheld) to be paid by any other party in respect of any such claim or threatened claim; and
13.2.6 the Supplier shall be entitled to require the Reseller to take such steps as the Supplier may reasonably require to mitigate or reduce any loss of the Reseller.
 
 
14 Force Majeure
14.1 Neither party will be liable for any failure or delay in performing their obligations under this Agreement where such failure or delay results from any cause beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, acts of terrorism or war, governmental action or any other event beyond the control of the Party in question.
 
 
15 Data Protection 
15.1 Each party agrees to comply with all applicable data protection legislation including, but not limited to, the Data Protection Act 2018 and any subsequent amendments thereto.
 
 
16 Nature of the Agreement
16.1 this Agreement is personal to the parties and neither party may assign, mortgage, or charge (otherwise than by floating charge) or sub-license any of its rights hereunder, or sub-contract or otherwise delegate any of its obligations hereunder, except with the written consent of the other party.
16.2 This Agreement contains the entire agreement between the parties with respect to its subject matter.
16.3 This Agreement supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.4 This Agreement may not be modified except by an instrument in writing signed by the duly authorised representatives of the parties.
16.5 No failure or delay by either party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
16.6 No person other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
16.7 If any one or more provisions of this Agreement are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed to be severed from the remainder of the Agreement. The remainder of this Agreement shall be valid and enforceable.
 
 
17 Costs
17.1 Subject to any express provisions to the contrary each party to this Agreement shall pay it own costs of and incidental to the negotiation, preparation, execution and carrying into effect of this Agreement.
 
 
18 Notices
18.1 All notices shall be in writing, addressed to the most recent address or email address notified to the other Party and shall be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice. Notices will be deemed to have been duly given: when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; when sent, if transmitted by email and a successful return receipt is generated, or on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid.
 
 
19 Relationship of the Parties
19.1 The Reseller acts as an independent contractor under this Agreement.
19.2 Nothing in this Agreement shall be construed to place the Parties in the relationship of agent and principal, partners, employer and employee, or joint venturers.
19.3 Neither Party shall have the right or power to obligate or bind the other in any manner whatsoever.
 
 
20 Set Off
20.1 The Reseller shall not be entitled to withhold payment of any sums after they become due by reason of any right of set-off or counterclaim which the Reseller may have or allege to have or for any other reason whatsoever.
 
 
21 Applicable Law and Jurisdiction
21.1 This Agreement (including any non-contractual matters and obligations arising therefrom or associated with them) shall be governed by, and construed in accordance with, the laws of England and Wales.
21.2 The Parties irrevocably agree that any dispute, controversy, proceedings or claim arising out of or in connection with this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the exclusive jurisdiction of the courts of England and Wales.