Sales Agent Terms and Conditions
1. DEFINITIONS AND INTERPRETATION
The following definitions and rules of interpretation apply in this Agreement.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Control: 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.
Intellectual Property: patents, utility models, rights to inventions, copyright and neighboring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Local Regulations: laws and regulations applicable to the Products in the Territory.
Mandatory Polices: the Principal’s mandatory policies and procedures, as amended by notification to the Agent from time to time.
Minimum Sales Target: in relation to each Year, the amount of sales of the Products specified such other amount(s) as may be agreed in writing between the parties in relation to any Year.
Net Price: in relation to any Products, the price actually charged to the customer less any value added or other sales tax thereon included in the price, any transport, haulage or insurance charges included in the price and any discounts, rebates or returns.
Principal’s Intellectual Property: shall have the meaning ascribed to it in clause 9.1, that is, Intellectual Property used on or in relation to the Products and the Principal’s business and the goodwill connected with the Principal’s business.
Products: the products of the type and specification sold by the Principal and described in Schedule 1 together with any other products from time to time distributed by the Principal and which the Principal may permit the Agent, by express notice in writing, to promote and sell in the Territory.
Quarter: each period of three calendar months ending on 31 March, 30 June, 30 September, 31 December.
Territory: the areas specified in Schedule 2.
Year: the period of 12 months from the Effective Date and each consecutive period of 12 months thereafter during the period of this Agreement.
1.2 Headings. Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 Person. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
1.4 Clauses and Schedules. References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.5 Schedules. The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
1.6 Company. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.7 Singular and plural. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.8 Gender. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.9 Party. A reference to any party shall include that party’s personal representatives, successors and permitted assigns.
1.10 Legislative references. A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.
1.11 Legislative references and secondary legislation. A reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.12 Writing and written. A reference to writing or written includes email.
1.13 Obligation not to allow things to be done. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.14 “Including“. Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. AGENT’S OBLIGATIONS
2.1 Good faith. To act towards the Principal conscientiously and in good faith and not to allow its interests to conflict with the duties that it owes to the Principal under this Agreement and the general law.
The Agent undertakes and agrees at all times during the term of this Agreement:
2.2 Limited authority to incur liabilities. Except as authorized by the Principal, not to act in a way which will incur any liabilities on behalf of the Principal nor to pledge the credit of the Principal.
2.3 Compliance with instructions. To comply with all reasonable and lawful instructions of the Principal from time to time concerning the marketing and sale of the Products in the Territory, and generally to carry out its agency in such manner as it thinks best to promote the interest of the Principal.
2.4 Minimum Sales Targets. To meet the Minimum Sales Targets, which is a fundamental term and condition of this Agreement. The Agent acknowledges and agrees that failure to achieve such targets will give the Principal the right to terminate this Agreement under clause 12.1(b).
2.5 Sales promotion. To use all reasonable endeavors to promote the Products in the Territory with all due care and diligence, and to seek to improve the Principal’s goodwill in the Territory.
2.6 Sound commercial principles. To act in accordance with sound commercial principles in its relations with customers and potential customers in the Territory (including as to assessing, and where appropriate obtaining independent assessments of, their creditworthiness) and to do nothing which the Principal considers could be prejudicial to its goodwill or commercial interests.
2.7 Correct description for agent. To describe itself in all dealings with the Products and in all associated advertising and promotional material and at its premises (if any description is provided there) as “sales agent” or “selling agent” of the Principal.
2.8 Appropriate personnel. To employ a sufficient number of suitably qualified dedicated personnel to ensure the proper fulfilment of the Agent’s obligations under this Agreement, including without limitation attending (on reasonable notice) meetings with the Principal to discuss the marketing and selling of the Products in the Territory, attending trade exhibitions and other sales outlets as appropriate, and making regular and sufficiently frequent calls on customers or potential customers to promote the Products.
2.9 Report on promotion and sales activities. To keep the Principal fully informed of its activities concerning the promotion and sale of the Products and to provide the Principal with reports on request.
2.10 Market reports. To keep the Principal fully and promptly informed of conditions and developments in the market for and use of the Products in the Territory (whether advantageous or disadvantageous to the Principal), of competing products and the activities of the Principal’s competitors in the Territory and to perform market research accordingly.
2.11 Reports on expected sales. To keep the Principal fully and promptly informed of its anticipated volumes of sales of the Products, so that the Principal may supply to the Agent sufficient volumes of stock of the Products to meet customers’ requirements in a timely manner.
2.12 Orders from outside the Territory. To inform the Principal promptly of any order or enquiry concerning orders for the Products received from customers outside the Territory (whether for supply inside or outside the Territory).
2.13 Complaints and after sales reports. To inform the Principal promptly of any complaint or after-sales enquiry concerning the Products received by the Agent.
2.14 Data on customers and potential customers. To maintain a list of customers and potential customers for the Products in the Territory from time to time, and on request to supply the Principal with an up-to-date copy of that list.
2.15 Use of samples. To use any samples of the Products provided under clause 4.3(b) only for disposal free of charge to customers or potential customers for the Products in the Territory, for the purpose of promoting sales of the Products there.
2.16 Stock-holding obligations. To keep all stocks of the Products which it holds or which are under its control in conditions notified to and approved by the Principal or (in the absence of such notification) which are appropriate for their storage and security all at its own cost, stored separately from other goods and clearly indicated as belonging to the Principal.
2.17 Insurance of stocks and other property of Principal. At its own expense:
(a) to insure and keep insured all of the Principal’s property which may at any time be in the Agent’s possession, custody or control with an insurer nominated by the Principal to its full replacement value against all the risks for which a prudent trader would insure its own property of the same type;
(b) to show to the Principal on demand the policy document and the most recent receipt for premium;
(c) to perform any obligation required of it under the terms of such insurance;
(d) to do nothing which could invalidate any such insurance, and
(e) to pay to the Principal promptly on receipt the proceeds of any insurance claim made in respect thereof, holding the same pending such payment in the trust bank account referred to in clause 5.7.
2.18 Invoices. To issue invoices on behalf of the Principal to customers (in a form suitable for value added tax or other sales tax purposes) in respect of the sale of Products under this Agreement, and to receive payment for the same.
2.19 Debt collection. To take such action as the Principal may from time to time request to seek to collect the debts owing to the Principal by customers in the Territory or to assist the Principal in taking such action, but not to take any such action without the Principal’s prior instructions.
2.20 No authority to deal with disputes. Not without prior reference to the Principal (and then only acting strictly on the Principal’s express instructions) on behalf of the Principal to take part in any dispute, or commence or defend any court or other dispute proceedings or settle or attempt to settle or make any admission concerning any such proceedings.
2.21 Indemnity for failure to comply with local law. To indemnify the Principal against any liabilities incurred by the Principal as a result of the Agent breaching any law from time to time in force in the Territory or the incurring of which is otherwise not authorized by the Principal hereunder.
2.22 Access to premises and records. To allow the Principal’s authorized representatives at any reasonable time to have access to the Agent’s premises (or to arrange for the Principal’s authorized representatives to have access to other relevant premises) for the purpose of inspecting the Agent’s books and records and for inspecting or taking stock of or possession of any of the Principal’s property which is in the Agent’s possession, custody or control.
3. SALE OF PRODUCTS
3.1 Prices. All sales of the Products by the Agent on behalf of the Principal shall be at the Principal’s list prices as specified in the price lists provided from time to time by the Principal to the Agent for this purpose, subject to any discounts or deductions as the Principal may allow.
3.2 Limited authority regarding representations. The Agent shall not, without the Principal’s prior written consent, make or give any representations, warranties or other promises concerning the Products beyond those provided by the Principal or contained in the Principal’s documents or literature concerning the Products.
3.3 Agent has no ownership of Products. The Agent shall not become the owner of any Products nor of any other goods delivered from the Principal to the Agent.
3.4 Stock levels and target volumes. The Principal and Agent shall, 15 days before the beginning of each Quarter, agree stock levels and target volumes for the next Quarter in relation to each of the Products.
3.5 Stock-holding volumes. Provided the Principal supplies the same, the Agent shall hold as stock adequate volumes of the Products so that it can meet orders from customers in a prompt manner and in accordance with the delivery timetables it has agreed and anticipates agreeing with them.
3.6 Prices changes. The Principal shall give the Agent 28 days’ notice of any changes in the prices of the Products or in its standard terms and conditions of sale.
3.7 Changes in range of Products. The Principal shall give the Agent at least 3 months’ written notice of its intention to extend the range of Products or discontinue supplies to the Agent of any of them.
4. PRINCIPAL’S OBLIGATIONS
The Principal undertakes and agrees with the Agent during the term of this Agreement:
4.1 Good faith. To act at all times in its relations with the Agent dutifully and in good faith.
4.2 Indemnity in favour of agent and reimbursement of expenses. Subject to the following, and provided the Agent performs its obligations under this Agreement, to indemnify the Agent against any liabilities which the Agent may incur as a result of acting with reasonable care and skill within the scope of its authority under this Agreement as agent for the Principal. Everyday expenses, costs and charges incurred by the Agent in performing this Agreement will be reimbursed by the Principal up to a maximum of £1000 per Quarter against production by the Agent of appropriate invoices and receipts in support. Before incurring any expense, cost or charge which would result in that threshold being exceeded the Agent shall seek the Principal’s express approval.
4.3 Supplies of stocks and support. To supply to the Agent at the Principal’s expense:
(a) stocks of the Products delivered to the Agent’s premises in such volumes as the Principal may decide, and to replenish that stock as necessary.
(b) such samples, sales literature and other documentation and information and such technical, market and other support as the Agent may from time to time reasonably require for the purposes of promoting and selling the Products and to enable it properly and efficiently to discharge its duties under this Agreement.
4.4 Obligation to honour sales contracts. Within a reasonable period of becoming aware of the same, and subject to its rights thereunder, to perform any contracts for the sale of the Products made on its behalf by the Agent under this Agreement.
4.5 Management of complaints. Promptly and efficiently to deal with any complaint, dispute or after-sales enquiry relating to the Products raised by a customer in the Territory.
4.6 Direct sales data. On the Agent’s request, to communicate to the Agent the name and address of any customer in the Territory to which the Principal has sold any Products pursuant to this Agreement.
4.7 Information re possible failure to perform. Where appropriate, to inform the Agent within a reasonable time if any contract concluded on its behalf by the Agent will not be performed by it, and of the reason for such non-performance.
4.8 Alerts re low sales. To give the Agent 1 month notice if it expects that the volume of sales of the Products will be significantly lower than the volume that the Agent would expect under normal circumstances.
5. PAYMENT OF COMMISSION
5.1 Time for payment of commission. The Principal shall pay the Agent the commission due under this Agreement by no later than the end of the calendar month following the Quarter in which it became due.
5.2 VAT or other sales tax. All sums payable under this Agreement are exclusive of any value added tax or other applicable sales tax, which shall be added to the sum in question. A VAT invoice shall be provided against any payment.
5.3 Currency of commission payment. In the absence of contrary agreement, commission shall be paid to the Agent in the same currency in which payment of the price under the relevant sale contract was made.
5.4 Disputes regarding commission. If any dispute arises as to the amount of commission payable by the Principal to the Agent, the same shall be referred to the Principal’s auditors for settlement and their certificate shall be final and binding on both parties.
5.5 Procedure for establishing commission. For the purposes of establishing the amount of commission due to the Agent:
(a) the Agent shall, within 14 days after the end of each Quarter, send to the Principal a statement:
(i) showing the aggregate Net Price of each description of Products sold by the Agent on behalf of the Principal during that Quarter; and
(ii) its expenses incurred in the Quarter as referred to in clause 4.2,
and shall attach to the statement the invoices, receipt and other supporting documentation referred to in clause 4.2; and
(b) the Principal shall, within 14 days of receipt of such statement, send to the Agent:
(i) a statement confirming the aggregate Net Price of each description of Products sold by the Principal during that Quarter under a contract concluded by the Agent, and stating the aggregate Net Price of each description of any Products sold by it during that Quarter;
(ii) a statement of the commission due to the Agent in that Quarter; and
(iii) its confirmation of whether or not it approves the expenses claim by the Agent for that Quarter.
5.6 Commission payments. For the purpose of payment between the Principal and Agent:
(a) the Agent shall, with the statement sent pursuant to clause 5.5(a), transfer to the Principal in the currency of the relevant sale contract a sum equal to the aggregate Net Price less any deductions required by law but without any other deductions as specified in the statement together with any VAT or other sales tax relating to the aggregate Net Price. At the same time the Agent will issue an invoice to the Principal (in a form suitable for VAT purposes) for the commission due to the Agent in respect of that Quarter; and
(b) the Principal shall, with the statement sent pursuant to clause 5.5(b), transfer to the Agent in Dollars the commission due to the Agent in respect of that Quarter and the reimbursement in respect of the approved amount of the Agent’s expenses referred to in clause 4.2.
5.7 Agent as trustee for sums due to Principal. The Agent shall:
(a) collect and hold as trustee in a separate bank account in the name of the Agent but designated as a trust account for the Principal’s benefit all monies due to the Principal in respect of such sales or otherwise (except for any transferred directly by the customer to the Principal);
(b) transfer the same to the Principal without deduction pursuant to clause 5.6(a), and
(c) account on demand to the Principal for any interest earned on credit balances from time to time in that account.
5.8 Accounts and records. Each party shall keep separate accounts and records giving correct and adequate details of all enquiries received and transactions conducted by the Agent on the Principal’s behalf and separate files of vouchers, invoices and receipts relevant to this Agreement, and shall permit the duly appointed representatives of the other party at all reasonable times to inspect all such accounts and records and to take copies thereof. For the avoidance of doubt, all rights in such records (including without limitation database right and copyright) shall belong to the Principal.
5.9 Interest. If Principal fails to make a payment due to Agent under this Agreement by the due date, then, without limiting Agent’s other remedies or termination rights, Principal shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at the lesser of ten percent (10%) per annum or the maximum allowable by law.
6. ADVERTISING AND PROMOTION
7. COMPLIANCE WITH LAWS AND POLICIES
7.1 Compliance. Each party shall at its own expense comply with all laws and regulations relating to its activities under this Agreement, as they may change from time to time, and with any conditions binding on it in any applicable licences, registrations, permits and approvals.
7.2 Mandatory Polices. The Agent shall comply with the Mandatory Polices as the Principal may update them from time to time;
7.3 Import licences. The Agent shall be responsible for obtaining any necessary import licences or permits necessary for the entry of the Products into the Territory, or their delivery to the Agent. The Agent shall be responsible for any customs duties, clearance charges, taxes, brokers’ fees and other amounts payable in connection with the importation and delivery of the Products.
7.4 Changes in marketing laws. The Agent shall give the Principal as much advance notice as possible of any prospective or actual changes in laws and regulations applicable to the marketing of the products in the Territory.
7.5 Local Regulations relating to Products
(a) The Agent warrants to the Principal that it has informed the Principal of all laws and regulations affecting the manufacture, sale, packaging and labelling of Products which are in force within the Territory or any part of it (Local Regulations) at the date of this Agreement.
(b) The Principal, in turn, warrants to the Agent that the Products comply with the Local Regulations in force at the date of this Agreement.
(c) The Agent shall give the Principal as much advance notice as reasonably possible of any prospective changes in the Local Regulations.
(d) On receipt of notification from the Agent under clause 7.5(c), the Principal shall make reasonable commercial efforts 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.
8.1 Compliance. The Agent shall:
(a) comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption including but not limited to the US Foreign Corrupt Practices Act and the UK Bribery Act 2010 (Relevant Requirements);
(b) comply with the ethics, anti-bribery and anti-corruption policies annexed to the Agreement at Schedule 5 (Relevant Policies);
(c) have and shall maintain in place throughout the term of this Agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, the Relevant Policies, and will enforce them where appropriate;
(d) promptly report to the Principal any request or demand for any undue financial or other advantage of any kind received by the Agent in connection with the performance of this Agreement.
9. PRINCIPAL’S INTELLECTUAL PROPERTY
9.1 Acknowledgement of ownership. The Agent acknowledges that the Principal’s rights to the Intellectual Property used on or in relation to the Products and the Principal’s business and the goodwill connected with that use (Principal’s Intellectual Property) are the Principal’s property.
9.2 Limited license to use Principal’s Intellectual Property. The Agent accepts that:
(a) it is permitted to use the Principal’s Intellectual Property only for the purposes of, and during the term of, this Agreement and only as authorized by the Principal hereunder;
(b) other than to that extent, it has and shall have no right to use or to allow others to use the Principal’s Intellectual Property or any part of it. It shall not seek to register any Intellectual Property on behalf of the Principal or any other person without the Principal’s express consent;
(c) it shall not use any trade marks, trade names or get-up which resemble the Principal’s trade marks, trade names or get-up and which would therefore be likely to confuse or mislead the public or any section of the public;
(d) it shall not remove, alter or otherwise tamper with any trade marks, trade names, logos, numbers or other means of identification on the Products or the packaging therefor which come into the Agent’s possession, custody or control, and shall not place any trade mark or trade name of its own on the Products or any packaging or other materials used in connection therewith;
(e) it shall not do or omit to do, or authorize any third party to do or to omit to do, anything which could invalidate or be inconsistent with the rights that the Principal has in the Principal’s Intellectual Property; and
(f) it shall make a statement in any advertising material and promotional literature produced by or for it in connection with the Products as to the ownership of any relevant Intellectual Property used or referred to therein.
9.3 IP Infringement in Territory. The Agent shall notify the Principal of:
(a) any actual, threatened or suspected infringement in the Territory of any of the Principal’s Intellectual Property of which the Agent becomes aware; and
(b) any claim by any third party of which it becomes aware that the importation or sale of the Products into or in the Territory infringes any rights of any other person.
9.4 IP assistance from Agent. The Agent shall, at the request and expense of the Principal and on a full indemnity basis (but not otherwise), take all such steps during the term of this Agreement as the Principal may reasonably require to assist the Principal in maintaining the Principal’s Intellectual Property as valid and effective, and to take or defend any court or other dispute proceedings concerning intellectual property matters.
10. PRODUCT LIABILITY AND INSURANCE
10.1 Product liability indemnity. Subject to fulfilment by the Agent of its obligations under this Agreement, the Principal shall indemnify the Agent against any liability incurred by the Agent 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 (Relevant Claim), except to the extent that the liability arises as a result of the action or omission of the Agent.
10.2 Product liability insurance. The Principal shall maintain product liability insurance for the duration of this Agreement of not less than £10,000,000 per annum with a reputable insurer and shall provide a copy of the insurance policy and proof of payment of the current premium to the Agent on request by the latter.
10.3 Product liability claims procedure. The Agent shall, immediately it becomes aware of a matter which may result in a Relevant Claim (whether against the Agent or only against the Principal):
(a) give notice to the Principal of the details of the matter;
(b) afford access to the Principal and permit copies to be taken of any materials, records or documents as the Principal may require to take action under clause 10.3(c);
(c) allow the Principal the exclusive conduct of any proceedings and take whatever action as the Principal shall direct to defend or resist the matter, including the use of professional advisers nominated by the Principal; and
(d) not admit liability or settle the matter without the prior written consent of the Principal.
10.4 Data relevant to Product recalls. The Agent undertakes to maintain appropriate, up-to-date and accurate records to enable the immediate recall of any batches of the Products from the retail or wholesale markets. These records shall include records of deliveries to customers (including details of batch numbers (where appropriate), delivery date, name and address of customer, and telephone number and fax number (and e-mail address if available)).
10.5 Product recall assistance. The Agent shall, at the Principal’s cost, give such assistance as the Principal shall require for the purpose of recalling as a matter of urgency any quantities of the Products or any of them from the retail or wholesale market.
11. LIMITATION OF LIABILITY
11.1 Unlimited liability. Nothing in this Agreement shall limit or exclude the liability of either party for:
(a) Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable).
(b) Fraud or fraudulent misrepresentation or wilful default.
(c) Liability under the indemnities contained in clause 2.21, clause 4.2, clause 9.4 and clause 10.1.
(d) Any matter in respect of which it would be unlawful to exclude or restrict liability.
11.2 Limitations of liability. Subject to clause 11.1 above:
(a) Exclusions. Neither party shall under any circumstances whatever be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
(i) any loss of profit, sales, revenue, or business;
(ii) loss of anticipated savings;
(iii) loss of or damage to goodwill;
(iv) loss of agreements or contacts;
(v) loss of use or corruption of software, data or information;
(vi) any loss arising out of the lawful termination of this Agreement or any decision not to renew its term; or
(vii) any loss that is an indirect or secondary consequence of any act or omission of the party in question.
(b) Total liability for damage to property. The total liability of either party for damage to property caused by the negligence of its employees in connection with this Agreement for any one event or series of connected events shall be limited to 2 times the fees paid or payable to Agent by Principal in the last 12 months prior to the liability arising; and
(c) Total liability under agreement. The total liability of Agent to the Principal in respect of all other loss or damage arising under or in connection with this Agreement excluding liability arising in connection with the supply of goods in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 2 times the fees paid or payable to Agent by Principal in the last 12 months prior to the liability arising.
11.3 No limitation in respect of deliberate default. Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
11.4 No liability for claims not notified within 1 year. Unless a party notifies the other party that it intends to make a claim in respect of an event within the notice period, the other party shall have no liability for that event. The notice period for an event shall start on the day on which the party wishing to make a claim became, or ought reasonably to have become, aware of the event having occurred and shall expire 1 year from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
12.1 Termination for cause. Without affecting any other right or remedy available to it, the Principal may terminate this Agreement with immediate effect by giving written notice to the Agent if:
(a) the Agent commits a material breach of any term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 60 days after being notified in writing to do so;
(b) the Agent fails in any Year to meet the Minimum Sales Target for that Year; or
(c) the Agent
(i) suspends, or threatens to suspend, payment of its debts or
(ii) is unable to pay its debts as they fall due or
(iii) admits inability to pay its debts or
(iv) (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
(d) the Agent
(i) commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or
(ii) makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of the Agent with one or more other companies or the solvent reconstruction of the Agent; or
(e) the agent applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
(f) 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 the Agent (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Agent with one or more other companies or the solvent reconstruction of the Agent;
(g) 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 Agent (being a company);
(h) the holder of a qualifying floating charge holder over the assets of the Agent (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the Agent or a receiver is appointed over the assets of the Agent;
(j) a creditor or encumbrancer of the Agent 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 the Agent’s assets and such attachment or process is not discharged within 120 days;
(k) any event occurs, or proceeding is taken, with respect to the Agent if any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2(c) to clause 13.2(j)13.2(j) (inclusive);
(l) the Agent suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of the Agent’s business; or
(m) the Principal ceases to produce or distribute generally the Products.
(n) The Agent is in breach of its compliance obligations in clause 7 and clause 8.
13. CONSEQUENCES OF TERMINATION
13.1 Accrued rights. Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
13.2 Consequences of termination. On termination of this Agreement:
(a) if and to the extent that the Commercial Agents (Council Directive) Regulations 1993 (as amended from time to time) apply, and provided that the Agent gives notice of its intention as required thereunder, the Agent shall, unless any of the circumstances mentioned in Regulation 18 of those Regulations applies, have the right to be indemnified as provided in Regulation 17 of those Regulations. For the avoidance of doubt, the Agent shall have no right to any compensation under those Regulations on termination of this Agreement;
(b) the Agent shall cease to promote, market, advertise or sell the Products;
(c) the Agent shall immediately cease to describe itself as an agent of the Principal and cease to use all trade marks, trade names and brand names of the Principal (including without limitation on stationery and vehicles); and
(d) the Agent shall at its own expense within 30 days return to the Principal all stocks of the Products (other than any for which it has accepted orders from customers before the date of termination), samples and any advertising, promotional or sales material relating to the Products then in the possession of the Agent, or otherwise dispose of the same as the Principal may instruct.
13.3 Commission on sales prior to termination. On termination of this Agreement, the provisions of clause 5 shall continue in force in relation to all sales of the Products where the sale has been concluded before the date of termination.
14. DATA PROTECTION
14.2 Agreed Purposes: to perform the services
14.3 Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organizational measures: as set out in the Data Protection Legislation.
Data Discloser: a party that discloses Shared Personal Data to the other party.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.
Permitted Recipients: the parties to this Agreement, the employees of each party, any third parties engaged to perform obligations in connection with this Agreement.
Shared Personal Data: the personal data to be shared between the Parties under clause 14.4 of this Agreement. Shared Personal Data shall be confined to the following categories of information relevant to the following categories of data subject:
(a) [type of personal data];
(b) [type of personal data], and
(c) [type of personal data].
14.4 Shared Personal Data. This clause sets out the framework for the sharing of personal data between the parties as controllers. Each party acknowledges that one party (referred to in this clause as the Data Discloser) will regularly disclose to the other party Shared Personal Data collected by the Data Discloser for the Agreed Purposes.
14.5 Effect of non-compliance with Data Protection Legislation. Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation, and any material breach of the Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this Agreement with immediate effect.
14.6 Particular obligations relating to data sharing. Each party shall:
(a) ensure that it has all necessary notices and consents and lawful bases in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;
(b) give full information to any data subject whose personal data may be processed under this Agreement of the nature of such processing. This includes giving notice that, on the termination of this Agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;
(c) process the Shared Personal Data only for the Agreed Purposes;
(d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
(e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this Agreement;
(f) ensure that it has in place appropriate technical and organizational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
(g) not transfer any personal data received from the Data Discloser outside the EEA unless the transferor ensures that (i) the transfer is to a country approved under the applicable Data Protection Legislation as providing adequate protection; or (ii) there are appropriate safeguards or binding corporate rules in place pursuant to the applicable Data Protection Legislation; or (iii) the transferor otherwise complies with its obligations under the applicable Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; or (iv) one of the derogations for specific situations in the applicable Data Protection Legislation applies to the transfer.
14.7 Mutual assistance. Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:
(a) consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;
(b) promptly inform the other party about the receipt of any data subject rights request;
(c) provide the other party with reasonable assistance in complying with any data subject rights request;
(d) not disclose, release, amend, delete or block any Shared Personal Data in response to a data subject rights request without first consulting the other party wherever possible;
(e) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, personal data breach notifications, data protection impact assessments and consultations with the Information Commissioner or other regulators;
(f) notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;
(g) at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this Agreement unless required by law to store the Shared Personal Data;
(h) use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;
(i) maintain complete and accurate records and information to demonstrate its compliance with this clause; and
(j) provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties’ compliance with the Data Protection Legislation.
14.8 Indemnity. Each party shall indemnify the other against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the indemnified party arising out of or in connection with the breach of the Data Protection Legislation by the indemnifying party, its employees or agents, provided that the indemnified party gives to the indemnifier prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it.
15.1 Force Majeure. Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this Agreement by giving 4 weeks written notice to the affected party.
15.2 Assignment and other dealings.
(a) The Agent shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement without the Principal’s prior written consent.
(b) The Principal may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under this Agreement.
(a) Each party undertakes that it shall not at any time during this Agreement, and for a period of 1 year 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, except as permitted by clause 15.3(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 15.3(b); and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Agreement.
15.4 Entire agreement.
(a) This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
15.5 Survival. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect including without limitation clauses 4.2, 9.1, 9.2, 10.1, and 15.3 (Confidentiality).
15.6 Variation. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.7 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
(a) Waive that or any other right or remedy.
(b) Prevent or restrict the further exercise of that or any other right or remedy.
15.8 Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
15.9 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a Notice) shall be in writing and addressed to the Party at the address designated in the Party’s signature block (or to such other address as that Party may designated in writing from time to time in accordance with this clause). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
15.10 Third party rights. Except as where expressly provided, no one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.