These Retailer Terms and Conditions (“Terms and Conditions”) are between the Retailer (you) and the Supplier (Chiaro) shall come into force on the Effective Date. The Terms and Conditions shall include any terms set out in the Sales Order, or other Schedules or Exhibits.
The Retailer understands that by continuing with any order by either accepting any delivery of the Products or making payment against an invoice from the Supplier (whichever occurs first), it agrees to be bound by the Terms and Conditions. Defined terms in these Terms and Conditions shall have the meaning given to them in these Terms and Conditions or any related lists, policies and guidelines.
In consideration of the foregoing and the mutual covenants and conditions, the parties agree as follows:
1. Retailer's Obligations
a. Premises. Shall only sell the Product within the Premises and within the Territory (unless through online sales through the Retailer’s own-name e-commerce website);
b. Training. Shall attend training sessions provided by the Supplier whether in person, online or via video link, and ensure all personnel attend additional training as required by the Supplier;
c. Customer and After-Sales Service. Shall provide competent and effective customer and after-sales service as is appropriate in the Territory and in accordance with Local Regulations;
d. Change of Control. Shall inform the Supplier immediately of any changes in ownership or Control of the Retailer, and of any change in its organisation or method of doing business that might be expected to affect the performance of the Retailer's duties in these Terms and Conditions;
e. Sales Outside of Territory. Shall, without hesitation, refer to the Supplier, within 7 days of receipt, all enquiries it receives for the Products for sale or ultimate delivery outside the Territory;
f. Local Regulations. Shall at its own expense comply with all laws and Local Regulations relating to its activities under these Terms and Conditions; and
g. Performance of Duties. Shall not assign or purport to assign any of its rights or obligations under these Terms and Conditions, including without limitation, it shall not directly or indirectly through a subsidiary or a company where it has some interest sell or distribute the Product without prior written approval of the Supplier.
h. Obligations. Shall comply with these Terms and Conditions unless agreed otherwise in writing between the parties.
2. Product Orders
a. Sale Conditions. The Retailer shall buy the Products for its own account for resale under these Terms and Conditions.
b. Cancellation. Supplier reserves the right to cancel any orders placed by Retailer and accepted by Supplier, or to refuse or delay shipment thereof, if Retailer (i) fails to make any payment as provided in these Terms and Conditions or under the terms of payment set forth in any invoice or otherwise agreed to by Supplier and Retailer, or (ii) otherwise fails to comply with these Terms and Conditions.
c. Supplier also reserves the right to discontinue the manufacture or distribution of any or all Products at any time (with at least 60-day written notice to Retailer and to offer to Retailer an end of life buy on such Terms and Conditions as Supplier, in its sole discretion, shall specify), and to cancel any orders outside of the 60-day notice period for such discontinued Products without liability of any kind to Retailer or to any other person.
d. No cancellation, refusal or delay will be deemed a termination (unless Supplier so advises Retailer) or breach of these Terms and Conditions by Supplier.
3. Prices and Payment
a. Product Price. The price of the Product to be paid by the Retailer to the Supplier for the Products shall be the Supplier's List Prices as notified to the Retailer by the Supplier from time to time.
b. In order to maintain a brand price-point in the global market place, the Supplier maintains a detailed overview of List Prices, which shall be made available to the Retailer from time to time.
c. Price Increase/Price Decrease. The Supplier may make changes to the pricing of the Product or the List Prices upon 30 days’ notice to the Retailer.
d. Payment. All costs, charges and payment due to the Supplier shall be paid by the Retailer within 7 days of the date of the invoice, unless otherwise agreed in writing between the parties.
e. If the Retailer fails to procure payment of the invoice by the due date, the Supplier shall be entitled to charge interest on the amount overdue from the due date until the date of actual payment at the rate of 5% per annum above the base rate for the time being of the Bank of England.
f. No Set Off. Neither party may withhold payment of any amount due to the other because of any set-off, counter-claim, abatement, or other similar deduction.
4. Shipments and Delivery
a. Shipment. All Products will be shipped by Supplier FCA unless otherwise stated in the Sales Order. Shipments will be made to Retailer's warehouse facilities or freight forwarder.
b. Retailer may at its option specify the mode of shipment and the carrier.
c. Partial Delivery. Unless Retailer clearly advises Supplier to the contrary in writing, Supplier may make partial shipments on account of Retailer's orders, to be separately invoiced and paid for when due.
d. Delay in delivery of any instalment shall not relieve Retailer of its obligation to accept the remaining deliveries.
e. Delivery Schedule; Delays. Supplier will use reasonable efforts to meet Retailer's requested delivery schedules for Products.
f. Supplier reserves the right to refuse, cancel or delay shipment to Retailer when Retailer's credit is impaired, when Retailer is delinquent in payments or fails to meet other credit or financial requirements established by Supplier, or when Retailer has failed to perform its obligations under these Terms and Conditions.
g. Should orders for Products exceed Supplier's available inventory, Supplier will allocate its available inventory and make deliveries on a basis Supplier deems equitable, in its sole discretion, and without liability to Retailer on account of the method of allocation chosen or its implementation.
5. Advertising and Promotion
a. Supplier shall use its best endeavours to promote the distribution and sale of the Products in the Territory.
b. The Retailer shall: (i) observe all directions and instructions given to it by the Supplier for the promotion and advertisement of the Products, (ii) conform to the general house style and branding policies and guidelines of the Supplier when producing any advertising or promotional material for approval by the Supplier.
6. COMPLIANCE WITH LAWS AND REGULATION
a. The Retailer shall comply with all Local Regulations in carrying out its obligations under these Terms and Conditions and with all and any conditions set out in any licence, registration, permit and/or approval.
b. Each party shall notify the other as soon as practicable after it becomes aware of any prospective or actual changes in the Local Regulations or any prospective or actual change in any condition in any licence, registration, permit or approval. Following such notification, each party shall endeavour to ensure that the promotion and sale of the Product complies with the change, by the date of implementation of the change or as soon as practicable.
7. Trade Marks
a. The Supplier hereby grants to the Retailer the non-exclusive right, in the Territory, to use the Trade Marks in the promotion, advertisement and sale of the Products, subject to, and for the duration of, these Terms and Conditions. The Retailer acknowledges and agrees that all rights in the Trade Marks shall remain in Supplier, and that Retailer has and will acquire no right in them by virtue of the discharge of its obligations under these Terms and Conditions, except for the right to use the Trade Marks as expressly provided in these Terms and Conditions.
b. The Products shall be sold under the Trade Marks. On all Products, containers and advertisements for the Products, the Trademark shall be used.
c. The Retailer shall comply with all rules for the use of the Trade Marks issued by the Supplier (including those set out in any trade marks manual issued by the Supplier) and shall not, without the prior written consent of the Supplier: (i) alter or make any addition to the labelling or packaging of the Products displaying the Trade Marks; (ii) make any addition or modifications to the Products or to any advertising and promotional materials supplied by the Supplier; or (iii) alter, deface or remove in any matter any reference to the Trade Marks, any reference to the Supplier or any other name attached or affixed to the Products or their packaging or labelling.
d. The Retailer shall not sub-license, transfer or otherwise deal with the rights of use of the Trade Marks granted under these Terms and Conditions.
e. The Retailer shall not do, or omit to do, anything in its use of the Trade Marks that could adversely affect the validity of the Trade Marks or the Supplier’s reputation.
8. Product Liability
During the Term, the Supplier shall maintain product liability insurance with a reputable insurer of no less than £2 million in total in 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 Retailer on request.
9. Limitation of Liability
a. In no event will a party be liable for lost profits, revenue, cost, expenses, other claims special, incidental, consequential, or punitive damages arising out of or related to these Terms and Conditions, whether in contract, tort (including negligence) breach of statutory duty or otherwise, even if it has been advised of the possibility of such damages.
b. Except for amounts payable due to a material breach of section 1, each party’s aggregate, cumulative liability arising out of or related to these Terms and Conditions will not exceed the lesser sum of £1million GBP or the total value of the charges paid by the Retailer in the 12-month period in which the claim arose. This limitation of liability will apply notwithstanding the failure of essential purpose of any limited remedy herein. Each party acknowledges that the other party would not have entered into these Terms and Conditions without the foregoing limitation of liability.
c. Nothing in these Terms and Conditions shall limit or exclude either party’s liability for: (i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable), (ii) fraud or fraudulent misrepresentation or wilful default; and (iii) any matter in respect of which it would be unlawful to exclude or restrict liability.
10. Commencement, Duration and Termination
a. These Terms and Conditions will commence on the Effective Date and will remain in force for the Term unless terminated in accordance with this section 10 or as otherwise stated in the Terms and Conditions
b. Either party may terminate these Terms and Conditions by notice in writing: (i) immediately if the other party breaches any material term of these Terms and Conditions incapable of remedy or and if capable of remedy is not remedied within 14 days’ notice of the breach; (ii) immediately if the other party is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or being an individual appears unable to pay his debts within the meaning of Section 268 of the Insolvency Act 1986 or if the other party shall enter into a composition or arrangement with the other party’s creditors or shall suffer distress or execution to be levied on his goods; (iii) immediately if the other party ceases, or threatens to cease, to carry on business; or (iv) by 14 days’ notice if Supplier ceases or intends to cease to produce the Product.
c. The Supplier may terminate these Terms and Conditions immediately by notice in writing if: (i) the Retailer is in breach of any of its obligations under section, 1 or 6, (ii) the Retailer changes its organisation or methods of business in such a way as in the opinion of the Supplier to be able less effectively to carry out its duties under these Terms and Conditions; (iii) the Retailer fails to pay any sum due to Supplier within 28 days of the due date for payment, (iv) if the Retailer assigns, or purports to assign its rights or obligations under these Terms and Conditions; (v) there is a merger or consolidation of the Retailer with any other person; or (vi) there is a change of organisation, methods of Control or management of the Retailer.
d. The Supplier may terminate these Terms and Conditions for convenience by serving 90 days’ notice in writing.
11. Consequences of Termination
a. Expiry or earlier termination of these Terms and Conditions shall not affect any rights or liabilities accrued at the date of expiry or termination. For the avoidance of doubt, the provisions of these Terms and Conditions shall, notwithstanding termination, continue in force in relation to all sales of the Product where the sale has been concluded before the date of termination.
b. Upon expiry or earlier termination of these Terms and Conditions for any reason:
(i) Supplier shall have the option to buy from the Retailer any stocks of the Products at such prices as Supplier reasonably considers to be their current market value and which shall not be more than the net price paid by the Retailer for them. To exercise the option, Supplier must give notice to the Retailer within 30 days of termination, stating the quantities of Products it wishes to buy. The Retailer shall deliver such Products to Supplier within 14 days of receiving Supplier's notice, and Supplier shall pay for the Products in full within 30 days of their delivery. The Retailer shall be responsible for the costs of packaging, insurance and carriage of the Products;
(ii) the Retailer shall be entitled to fulfil all orders which it received from customers before termination, provided it passes the Orders to Supplier within 14 days of expiry or earlier termination;
(iii) Supplier shall fulfil all Orders received prior to the date of termination and under section 11.b(ii) in accordance with these Terms and Conditions;
(iv) the Retailer shall cease to promote, market, advertise or sell the Product, cease to describe itself as Retailer(s) of Supplier and cease to use all trademarks or trade or brand names of Supplier; and
(v) the Retailer shall at its own expense within 30 days return to Supplier all documents, information, samples and any advertising, promotional or sales material relating to the Product then in the possession of the Retailer or otherwise dispose of the same as Supplier may instruct.
12. Force Majeure
a. The Supplier shall not be liable to the Retailer for any loss or damage which may be suffered by the Retailer as a direct or indirect result of the supply of the Products being prevented hindered or delayed by reason of any force majeure circumstances.
b. In this section 12, “force majeure circumstances” shall mean any war, riot, civil disturbance, act of God, strike, lock-out, trade dispute or labour disturbance, accident, breakdown of plant or machinery, fire, flood, difficulty in obtaining workmen, materials or transport or other circumstances whatsoever outside the reasonable control of the Suppler affecting the supply of the Products to the Retailer.
a. Confidentiality. The parties agree that the terms of these Terms and Conditions as well as any other non-public information that either party provides to the other party in connection with these Terms and Conditions that the recipient knew or reasonably should have known was confidential (“Confidential Information”), will be held confidential and not disclosed to any third party, unless the Confidential Information becomes public through no fault of the recipient or is otherwise communicated to the recipient free of any obligation of confidence.
b. Records. You will maintain, complete, accurate and up to date records and supporting documents in connection with the Terms and Conditions (including your compliance and any amounts payable by us under it) (“Records”). You will retain the Records for the Term and thereafter for as long as is required by Local Regulations. You will provide us and our representatives with all reasonable: (i) access to and copies of the Records; and, (ii) access to all relevant information, data and representatives for the purposes of carrying out an audit of your compliance with the Terms and Conditions; and (iii) reasonable assistance in carrying out such audit.
c. Disclaimer. Neither party makes any representations or warranties, express or implied and each party disclaims all other representations and warranties, including without limitation, any representations and warranties of merchantability and fitness for a particular purpose.
d. Entire Terms and Conditions. These Terms and Conditions, including the Sales Order, any Schedules or Exhibits, constitutes the entire Terms and Conditions and understanding of the parties relating to distribution of Product and supersedes all prior Terms and Conditions, standard terms, negotiations and discussions between the parties relating to such use. The parties have not relied on any statement, representation, warranty (including any implied warranty of merchantability, satisfactory quality, fitness for a particular purpose or any representation, warranty or condition from course of dealing or usage of trade) understanding, undertaking, promise or assurance (whether negligently or innocently made) of any person (whether party to these Terms and Conditions or not) other than as expressly set out in these Terms and Conditions. Each party irrevocably and unconditionally waives all claims, rights and remedies which but for this section it might otherwise have had in relation to any of the foregoing. Nothing in this section shall limit or exclude any liability for fraud, fraudulent misrepresentation or fraudulent misstatement.
e. Amendment. No amendment or variation of these Terms and Conditions shall be effective unless in writing and signed by a duly authorised representative of each of the parties.
f. Assignment. The Retailer shall not, without the prior written consent of Supplier assign, transfer, charge or deal in any other manner with these Terms and Conditions or its rights under it or part of it, or purport to do any of the same, nor sub-contract nor appoint sub-agents or delegates of any or all of its obligations under these Terms and Conditions.
g. Enforcement of Rights. The failure, neglect or delay of a party to exercise or enforce any right under these Terms and Conditions shall not be deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any time or times thereafter.
h. Validity. If any part of these Terms and Conditions shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of these Terms and Conditions which shall remain in full force and effect.
i. No Partnership or Agency. Nothing in this Agreement shall create or be deemed to create a partnership, joint venture or principal-agent relationship between the parties and neither party shall have authority to bind the other in any way unless expressly provided otherwise in this Agreement.
j. Third Party Rights. A person who is not a party to these Terms and Conditions has no rights under the Contracts (Rights of Third Parties) Act of 1999 to enforce any term under these Terms and Conditions but this does not affect any right or remedy of a third party that exists or is available apart from that Act.
14. Governing Law and Jurisdiction
These Terms and Conditions shall be governed by and construed in accordance with the laws of England and each party hereby agrees to submit to the exclusive jurisdiction of the Courts of England.
The following definitions shall apply:
“Authorised Retailer” Retailer authorised to operate at the retail level of trade for the Supplier,
“Business Day” a day (other than a Saturday, Sunday or public holiday) when banks in Territory are open for business.
“Control” shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly OR the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
“Effective Date” Shall be the date of the Sales Order
“List Price” Shall mean the price of the Product to be paid by the Retailer, as notified by the Supplier from time to time.
“Local Regulations” All laws and regulations and with any binding conditions in any applicable licences, registrations, permits and approvals applicable to the distribution, marketing and sale of the Product and the obligations under these Terms and Conditions.
“Products” Shall be Elvie, an activity tracker and app designed to tone pelvic floor muscles. Designed and manufactured by the Supplier
“Purchase Order” or “PO” The written order to purchase Products created by the Retailer and submitted to the Supplier.
“Premises” The registered address as detailed in the PO and which shall include the Retailers’ official authorised website (as communicated in writing to the Supplier) for online sales from which the Retailer shall be entitled to distribute, market and sell the Products.
“Sales Order” Shall mean the sales order sent from the Supplier to the Retailer in response to a PO
“Term” Shall be 6 months from the Effective Date
“Territory” Shall be the country in which the Premises are located.