Distributor Agreement by alicejenny


									Distributor Agreement
                                     Distributor Agreement

       (1)     “The Principal” –

       (2)     “The Distributor” –

               of *

1.     Definitions
The following words shall mean:

       “Contract Specification”               *

       “Products”             the products [presently] offered for sale by the Supplier and listed in
                              the Schedule [together with spare parts and consumables].


2.     Appointment

       2.1     The Supplier appoints the Distributor as the Supplier’s [non-exclusive or exclusive *]
               Distributor for the resale of the Products in the Territory.

       *2.2    The Supplier will not appoint any other person, firm or company as a Distributor for the
               Products in the Territory nor supply the Products to any other person, firm or company in the
               Territory whether for resale or otherwise [except that the Supplier may during the period of [
               ] months prior to expiration or termination of this Agreement appoint the Distributor’s
               successor if any].

       2.3      The Distributor shall be entitled to describe itself as the Supplier’s “Authorised
               Distributor of * ”, but shall not be entitled to hold itself out as the Supplier’s agent for
               sales of the Products or to bind the Supplier in any way.

       *2.4    The Distributor will not:-

       (i)     manufacture or distribute goods which compete with the products in the Territory;

       (ii)    obtain the Products for resale in the Territory from any person, firm or company other than
               the Supplier; or

       (iii)   seek customers, establish any branch or maintain any distribution depot in relation to the
               Products outside the Territory.
     2.5   [House accounts: Appendix 1 is a list of the Supplier’s house accounts which are
            handled directly by the Supplier and which are outside this Agreement unless otherwise
            agreed. This list may be amended from time to time by the Supplier but only after consulting
            with the Distributor.]

     2.6    [Sales targets: For each year the parties will agree sales targets for the Distributor. For
            the second and subsequent years, such sales targets will be not less than the sales target for
            the previous year unless otherwise agreed. The Supplier will monitor progress against sales
            targets during the year and the parties will take appropriate action to correct any

     2.7    The Distributor may not assign or otherwise transfer the benefit of this Agreement and this
            will include a change of ownership of the Distributor or a material change in its management.

     2.8    This Agreement is the entire agreement between the parties in respect of the
            Distributor and supersedes and cancels all previous arrangements and understandings.

3.   Duration
     3.1    This Agreement begins on the date of signing by both parties and subject to clause 10 and
            expires on * without need of notice by either parties. OR

     3.1    This Agreement begins on the date of signing by both parties and subject to clause 10
            continues for [ ] months and thereafter unless and until terminated by either party giving not
            less than [ ] months’ written notice to the other to expire on or at any time after such initial
            period of [ ] months.

4.   Terms of Trading
     4.1    Prices and delivery dates will be negotiated on an order by order basis and subject to the
            Supplier’s standard terms of trading current at the time of each order.

     4.2    Each order for the Products shall constitute a separate contract, and any default by the
            Supplier in relation to any one order shall not entitle the Distributor to treat this Agreement as

     4.3    All prices, invoicing and payment will be in pounds sterling. Exchange rate calculations shall
            be by reference to such rate of exchange as the Supplier may reasonably direct.

     4.4    [All Products to be supplied by the Supplier pursuant to this Agreement shall be sold on
            an ex-works basis.] Payment will be [irrevocable Letter of Credit – or if on open account,
            specify credit terms].

     4.5    Risk in the Products will pass to the Distributor on delivery.

     4.6    Ownership of the Products will pass to the Distributor on payment in full by the Distributor.

     4.7    Nothing contained in this Agreement shall impose upon the Supplier an obligation to accept
            any purchase order from the Distributor.
     4.8    Nothing contained in this Agreement shall impose upon the Supplier an obligation to
            manufacture the Products or prevent the Supplier making such changes in the design,
            production, packaging or finish of the Products as the Supplier in its absolute discretion
            decides. OR

     4.8    The Supplier shall be entitled to modify or cease manufacture and supply of any Products
            [after reasonable consultations with the Distributor].

     4.9    The Supplier is entitled to set-off against any monies payable to the Distributor all lawful
            claims and monies due to or anticipated by the Supplier from the Distributor.

5.   Mutual Obligations
     5.1    The parties will act in good faith and shall co-operate to maximise sales of the Products
            in the Territory.

     5.2    Each party will report to the other any information which will be helpful to the other in
            achieving this objective.

     5.3    The Supplier will, in particular (but not by way of limitation):

            [menu of specific obligations]

     •      product liability
     •      technical assistance
     •      technical and promotional material (language?)
     •      training
     •      support and maintenance of industrial property rights
     •      ongoing technical development of the Products

     5.4    The Distributor will, in particular (but not by way of limitation):

     [menu of specific obligations]

     •      content and frequency of activity reports
     •      representation at trade fairs and exhibitions
     •      general SWOT market intelligence
     •      passive enquiries from outside the Territory
     •      enquiries from house accounts
     •      assist Supplier with any legal action in the Territory
     •      whole range of Products
     •      minimum purchases
     •      stock levels
     •      after-sale servicing and warranty
     •      technical personnel
     •      advertising and promotional activity
     •      use only the Supplier’s packaging and trademarks
     •      compliance with local regulations and laws
     •      insurance
     •      import licenses and taxes
     •      local approvals/acceptance certificates
6.   Confidential Information

     6.1   Each of the parties will keep confidential information relating to the business and affairs
           of the other both during the period and after the termination of this Agreement. The
           obligation shall cease if and to the extent that any such information enters the public domain
           without breach of this obligation.

     6.2   Each party agrees to return to the other any documents containing such confidential
           information on the termination of this Agreement.

7.   Industrial Property
     7.1   The Distributor is authorised to use all trademarks and trade names relating to the
           Products in the performance of its obligations under this Agreement to the full extent of the
           Supplier’s rights therein in the Territory. The Distributor will not use the said trademarks and
           trade names in any other way.

     7.2   The Distributor will not obliterate any trademarks on or in relation to the Products or their

     7.3   The Distributor will use its best efforts to preserve all such trademarks and trade names, and
           will promptly report any infringement to the Supplier.

     7.4   The Distributor agrees that it will not acquire any interest in such trademarks or trade names
           by virtue of its use of them in the performance of this Agreement. The Distributor will cease
           its use of such trademarks and trade names on the termination of this Agreement.

     7.5   The Distributor shall not use, in relation to the Products (or any goods similar thereto) any
           other trade mark that is confusingly or deceptively similar to any of the Distributor’s

     7.6   The Distributor will not register or attempt to register any of the Supplier’s trademarks or
           trade names or similar marks or names in the Territory.

8.   Product Responsibility
     8.1   The Distributor is responsible for identifying the customer’s requirements and that those
           requirements are satisfied by the Contract Specification.

     8.2   The Supplier is responsible for supplying the Product in accordance with the Contract

     8.3   The Supplier accepts that any inspection of the Product for defects will be carried out by the
           customer and not by the Distributor.

     8.4   The Distributor agrees to indemnify and keep indemnified the Supplier against all damages,
           proceedings, liabilities, costs and expenses (including reasonably legal expenses) suffered or
           incurred by the Supplier arising out of or in connection with the resale of the Products in the
           Territory except where such damages, proceedings, liabilities, costs and expenses arise solely
           because of the default of the Supplier.
9.    Force Majeure
      9.1     It is agreed that neither the Supplier nor the Distributor shall be liable under this Agreement
              for failure to carry out its provisions to the extent that such failure is caused by any reason
              beyond their respective control, including (but not limited to) fire, floods, acts of God, civil
              commotions, strikes, lock-outs or industrial action of any kind, riots, insurrections, war,
              terrorism (political or otherwise), acts of any governmental authority, priorities granted at the
              request or for the benefit directly or indirectly of any government or agency. A party subject
              to any such circumstances shall immediately inform the other and they shall consult together
              to find a mutually acceptable solution.

      9.2     Notwithstanding clause 9.1, it is agreed that failure to pay or any delay in payment of monies
              due and owing by one party to the other shall not be excused for any reason whatsoever and
              the circumstances giving rise to such failure or delay shall be deemed to be within that party’s

10.   Termination

      10.1    Either party will have the right to terminate this Agreement by notice to the other if:

      (i)     the recipient is either in material breach, or (after warning) persistent breach of this

      (ii)    the recipient is unable to meet its financial obligations, is insolvent, in liquidation, or
              (according to the jurisdiction of the Country or State of incorporation), or enters into any
              arrangement with creditors; or

      (iii)   the recipient has been subject to circumstances of force majeure as described in clause 9.1 for
              period of [ ] days whether consecutively or in aggregate in any period of twelve calendar

      10.2    The Supplier shall have the right to terminate this Agreement forthwith by written notice
              to the Distributor at any time within six months after becoming aware that the Distributor has
              suffered a change of control. For these purposes “control” shall mean the power of a person
              to secure either by means of the holding of shares or the exercise of voting rights or by
              contract, that the affairs of the Distributor are conducted in accordance with the wishes of that

      10.3    The Supplier shall have the right to terminate this Agreement forthwith by written notice
              if the Distributor fails to achieve the sales targets referred to in clause 2.6.

      10.4    The termination of this Agreement shall not prevent either party from enforcing any rights
              and liabilities which arose before or on termination.

      10.5    Upon termination of this Agreement the Distributor shall, at the request of the Supplier and at
              the Distributor’s expense, return to the Supplier or its nominee any documents or literature
              provided by the Supplier.
      10.6    [Repurchase of stock]

      10.7    [Repurchase of special tooling]

      10.8    [Spare parts etc to meet warranty claims against Distributor after termination].

      10.9    The Distributor shall have no claim against the Supplier following the non-renewal
              or lawful termination of this Agreement on any grounds whatsoever.

11.   Notices
      11.1    Any notice, statement or other document to be given or supplied to a party, may be so given
              or supplied:

      (i)     by delivering it to the party concerned;

      (iii)   by leaving it at his proper address addressed to the party concerned by name. For these
              “proper address” means in the case of a company its registered office or other trading address
              and in the case of an individual or partnership his or their private or other trading address; or

      (iii)   by sending it by post to the party concerned at its, his or their proper address.

      11.2    Such notice, statement or document shall be deemed given or supplied on the date of
              delivery or leaving or, if sent by post, on the [first] working day after posting.

12.   Law & Arbitration

      12.1    The validity, performance and construction of this Agreement shall be governed by
              English Law.

      12.2    All disputes arising in connection with this Agreement shall be finally settled under the
              Rules of Conciliation and Arbitration of the International Chamber of Commerce.
              Arbitration shall be in [London], before a single arbitrator and the proceedings shall be
              conducted in the English language. OR

      12.1    The validity, performance and construction of this Agreement shall be governed by
              English Law. The English Courts shall have jurisdiction.
                  Appendix I

House Accounts:
                      The Schedule


For the Principal

For the Distributor


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