Dealer Agreement

The definitions and rules of interpretation in this clause apply in these terms and conditions and the Background:

Business Day” a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Brand Manual” On request from Safe Innovations Ltd [SAFE]

Commencement Date” the date of this agreement.

Commission Rate” As set out in annual Dealer/Dealer/Distributor price list

Control Means a) the beneficial ownership of more than 50% of the issued share capital of a company b) the legal power to direct or cause the direction of the general management of the company or its business assets and goodwill; controls, controlled and the expression change of control shall be construed accordingly.

Force Majeure Event” has the meaning given in clause 18.1

Future Intellectual Property Rights those Intellectual Property Rights that arise out of the performance of this agreement including (without limitation) the use by the Dealer/Distributor , or the Manufacturer, of the Product, of (a) the Specification, (b) the Trade Mark and (c) any other Intellectual Property Rights licensed by SAFE to the Dealer/Distributor  under the terms of this agreement or otherwise

Intellectual Property Rights all patents, rights to inventions, copyright and related rights, trade marks including the trade and business names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, database right, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Minimum Sale Amount the quantities (or values of sale) of the Products specified in Schedule 1 for each Year, or such other quantities as may be agreed in writing between the parties in relation to each Year.

Mould” that frame, template or other structure that can be used to create the Product

Net Sale Price the sale price of the Product made by the Dealer/Distributor less the price paid by it to the Manufacturer (in each case exclusive of VAT).

Products the Seeds® seed pod™ which is manufactured to the Specification and sold under the Trade Mark and those other products notified and included by SAFE from time to time. 

Registered Designs” the registered designs, short particulars of which are set out in Schedule One.

Specification” the specification (including the Registered Designs, UK and European unregistered design rights and any other Intellectual Property Rights relating to the specification) of the Product provided to the Dealer/Distributor  for the subcontracted manufacture (and where appropriate the sale and other distribution of the Product) of the Product any other drawings, plans, or otherwise supplied to the Dealer/Distributor  by SAFE for the purpose of manufacturing the Product.

Term” the term of this agreement, as determined in accordance with clause 15 (Commencement, duration and termination).

Territory” the United Kingdom unless otherwise agreed with SAFE

Trade Marks the trade mark registrations and applications listed in Schedule One and any further trade marks that SAFE may, by express notice in writing, permit, or procure permission for, the Dealer/Distributor to use in the Territory in respect of the Products.

VAT” value added tax chargeable in the UK or elsewhere.

Year” the period of 12 months from the Commencement Date and each consecutive period of 12 months thereafter during the Term.

Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.

A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

    1. 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.
    2. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
    3. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
    4. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
    5. A reference to any party shall include that party’s personal representatives, successors and permitted assigns.
    6. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
    7. A reference to writing or written includes email
    8. A reference to these terms and conditions or to any other agreement or document referred to in this agreement is a reference to this agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time.
    9. 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.
    10. Any words following the terms including, include, in particular, for example 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.
    11. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
  1. Appointment
    1. SAFE appoints the Dealer/Distributor as its non-exclusive Dealer/Distributor to market and distribute the Products in the Territory on the terms of this agreement, except to the extent that such marketing and distribution is to any Excluded Customer
    2. The Dealer/Distributor shall purchase the Products only from SAFE from any manufacturer of the Product, such manufacturer to be appointed with the prior approval in writing from SAFE (“Manufacturer“). 
    3. The Dealer/Distributor shall refrain from making actual, or active sales of the Products to Excluded Customers and to those customers residing outside the Territory. For these purposes, active sales shall be understood to mean selectively approaching or soliciting customers, including, but not limited to, the following actions:
      1. visits;
      2. direct mail, including the sending of unsolicited emails;
      3. advertising in media, on the internet or other promotions, where such advertising or promotion is specifically targeted at Excluded Customers or those located outside the Territory ;
      4. online advertisements addressed to Excluded Customers and other efforts to be found specifically by users outside the Territory, including the use of territory based banners on third party websites and paying a search engine or online advertisement provider to have advertisements or higher search rankings displayed specifically to users located outside of the Territory; and
    4. The Dealer/Distributor shall not:
      1. represent itself as an agent of SAFE for any purpose;
      2. pledge SAFE’s credit;
      3. give any condition or warranty on SAFE’s behalf;
      4. make any representation on SAFE’s behalf;
      5. commit SAFE to any contracts;
      6. otherwise incur any liability for or on behalf of SAFE.
    5. The Dealer/Distributor shall not, without SAFE’s prior written consent, make any promises or guarantees about the Products beyond those contained in the promotional material supplied by SAFE or as otherwise directed by it.
    6. The Dealer/Distributor shall not sell, distribute or otherwise make available the Products to Dealer/Distributors, resellers or end users outside the United Kingdom without first obtaining the written agreement of SAFE to do so.
  1. Dealer/Distributor ‘s undertakings
    1. The Dealer/Distributor undertakes and agrees with SAFE that at all times during the Term it will:
      1. use all reasonable endeavours to promote the distribution and sale of the Products in the Territory;
      2. employ a sufficient number of suitably qualified personnel to ensure the proper fulfilment of the Dealer/Distributor ‘s obligations under this agreement;
      3. in each year make a minimum amount of sales equal to the Minimum Sales Amount of the Products through those outlets.
      4. not resell the Products at a price exceeding the maximum resale price from time to time specified by SAFE in writing; the maximum sale prices at the Commencement Date are set out in Schedule 1;
      5. enter into a written agreement with any third party that it engages with to resell the Product which obliges such a third party to refrain from selling the Product at a price that exceeds the maximum resale price from time to time specified by SAFE in writing; the maximum resale prices are reviewed annually as List/Recommended Retail Price
      6. notify SAFE of all deliveries of the Product made by it or its agent to its customers within 3 Business Days of such deliveries being made and with sufficient information for SAFE to make a determination of which order is complete and what royalties are due to it.
      7. submit written reports at monthly intervals to SAFE, showing details of sales, service stock, outstanding customer orders and orders placed to the Dealer/Distributor  with SAFE that are still outstanding, and any other information relating to the performance of its obligations under this agreement that SAFE may reasonably require from time to time;
      8. maintain, on its own account, an inventory of the Products at levels which are appropriate and adequate for the Dealer/Distributor to meet all customer delivery requirements for the Products throughout the Territory;
      9. keep full and proper books of account and records showing clearly all enquiries, quotations, transactions and proceedings relating to the Products;
      10. allow SAFE, on reasonable notice, full and unrestricted access to its accounts and records relating to the Products (“Records“) for inspection; where such Records are requested electronically, provide them or access to them without delay;
      11. keep all stocks of the Products which it holds in conditions appropriate for their storage, and provide appropriate security for the Products, all at its own cost;
      12. insure at its own cost with a reputable insurance company all stocks of the Products as are held by it (or which are held on its behalf) against all risks which would normally be insured against by a prudent businessperson to at least their full replacement value and produce to SAFE on demand full particulars of that insurance and the receipt for the then current premium;
      13. provide to its customers an after-sale repair and maintenance service in respect of the Products in accordance with any warrantee or warranties for the Product or any integrated component parts, provided and all advice and guidance provided by SAFE or the Manufacturer, save that where such advice conflicts the advice of SAFE shall take priority (except in circumstances where it is reasonably apparent that such advice is manifestly incorrect);
      14. inform SAFE immediately of any changes in ownership or Control of the Dealer/Distributor, and of any change in its organisation or method of doing business that might be expected to affect the performance of the Dealer/Distributor ‘s duties in this agreement;
      15. to use its best endeavours to develop, advertise, promote and sell the Products in the Territory and to expand the sale of the Products to all potential purchasers by all reasonable and proper means and not to do anything which may hinder or interfere with such sales;
      16. to pay or ensure payment on the due date to SAFE (or to the Manufacturer) of all sums due to SAFE for sales of the Products, or to the Manufacturer for the purchase of them;
      17. to be responsible for the carriage and insurance of the Products to its customers or as they otherwise direct unless otherwise agreed with SAFE in writing;
      18. to allow the authorised representatives of SAFE or their duly appointed agents to have access to the premises of the DEALER/DEALER/DISTRIBUTOR  (and to procure access for SAFE to the premises of the Manufacturer) at all reasonable times for the purpose of ensuring that the manufacture, promotion and distribution of the Products is in accordance with the Brand Manual, and to inspect the Dealer/Distributor ‘s and the Manufacturer’s maintenance, storage and repair facilities and the aforesaid books and records of the Dealer/Distributor ; and
      19. to indemnify SAFE on demand against each loss, liability and cost which SAFE may incur arising out of the breach of the Dealer/Distributor ‘s obligations under this agreement.
  2. Manufacture and supply of products
    1. During the Term, each party shall give to the other not less than five Business Days before the beginning of each month, a forecast of the Products it expects to request the manufacture of by a Manufacturer during the following two months. This shall be communicated by SAFE and communicated in writing to the Manufacturer of the Product. In the event that the Manufacturer are unable to meet the forecasted orders for the Products the parties agree that SAFE’s forecasted orders for them shall take priority.
    2. Only after written agreement from SAFE, the Dealer/Distributor shall source the manufacture and supply to it of the Products in accordance with clause 2.2. In doing so it shall:
      1. ensure that the Products are manufactured in accordance with the quality and other standards and provisions set out in Brand Manual;
      2. appoint the Manufacturer on a non-exclusive basis;
      3. ensure by way of providing that the Manufacturer has sufficient capacity to meet its orders and other requirements for the Products;
      4. ensure that the Product is manufactured in accordance with the Specification or with the written instructions provided by SAFE from time to time, including all and any guidance issued by SAFE regarding the quality of the Product;
      5. not to amend the Specification or permit the Manufacturer or any other third party to do so without the prior written consent of SAFE;
      6. in the appointment of the Manufacturer benchmark its costs against the market for the same services from third party suppliers of such services. The Dealer/Distributor shall use all reasonable endeavours to reduce the cost of the manufacture of the Product the benefit of which shall be shared equally between SAFE and the Dealer/Distributor and accounted for on a pro rata basis in the value of the royalties payable to SAFE;
      7. ensure that the manufacture and supply of the Product is made in accordance with all generally accepted industry standards and practices that are applicable at the time. The Products supplied to the Dealer/Distributor  by the Manufacturer shall be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Dealer/Distributor  or made known to the Manufacturer by the Dealer/Distributor .
      8. The Dealer/Distributor shall purchase a Mould from SAFE to be delivered to it within three months of the Commencement Date or such reasonable period afterwards.
    3. Only after written agreement with SAFE, the Dealer/Distributor shall enter into a written agreement with the Manufacturer which shall at least contain provisions which mirror those obligations provided for in clause 4.1, and procure that the Manufacturer:
        1. obtains and maintains in force for all licences, permissions, authorisations, consents and permits needed to manufacture and supply the Product;
        2. permits SAFE the option to purchase any Product manufactured by it but for which payment has not been made by the Dealer/Distributor and title to which has not passed to the Dealer/Distributor ;
        3. does not have the right to sell the Products to a third party;
        4. assigns to the Dealer/Distributor or to SAFE (and takes all appropriate steps to protect) all and any Future Intellectual Property Rights that arise on demand by the Dealer/Distributor  to do so;
        5. does not assign or sublicense its rights to use the Intellectual Property Rights in the Licensed Rights and obliges it to maintain the confidentiality in the Product and the Licenses Rights.
    4. The Dealer/Distributor  undertakes to indemnify and hold SAFE harmless from, for and against all costs, claims, demands, losses (whether direct, indirect or consequential) expenses, fines and other liabilities that arise or which are otherwise suffered by SAFE as a consequence of a breach of this clause 4 by the Dealer/Distributor .
    5. SAFE may make changes to the specifications of the Products, provided the changes do not adversely affect the quality of the Products. SAFE shall give notice of any changes to Product specifications to the Dealer/Distributor as soon as reasonably practicable.
  3. Supplier’s undertakings
    1. SAFE agrees that at all times during the Term it shall:
      1. provide any information and support that may reasonably be requested by the Dealer/Distributor to enable it to discharge its duties under this agreement properly and efficiently;
      2. approve or reject any promotional information or material submitted by the Dealer/Distributor  within 20 working days of receipt;
      3. not to sell the Product at a price greater than that provided for in clause 3.1.4;
      4. to provide the Dealer/Distributor with information on the advertising and promotion used by SAFE and supply such quantities of promotional and advertising material as deemed appropriate by it. The costs of providing such material shall paid by the Dealer/Distributor;
      5. to inform the Dealer/Distributor within one month of receipt of the Dealer/Distributor ‘s advertising and promotional programme whether it accepts the programme and any related conditions of acceptance;
      6. to provide training on the Product and associated terminology to assist in the marketing and promotion of the Product to those employees of the Dealer/Distributor that reasonably require it; and
      7. to make available to the Dealer/Distributor such field sales support as SAFE may deem necessary.
  4. Meetings
    1. SAFE and the Dealer/Distributor shall meet at the premises of SAFE (or such other location, or mode of communication as agreed between the parties in writing) at least once every 3 calendar months to discuss:
  • Customer Service (issues, quarterly complaints, possible improvements);
  • Packaging;
  • Manufacturing
  • Stock management;
  • Product development;
  • Excluded Customers;
  • Pricing;
  • The nature of the appointment of the Dealer/Distributor , and any shift towards exclusivity;
  • Market trends;
  • any other current issues.
  1. Prices and payment
    1. The Dealer/Distributor shall pay to SAFE the amount equal to the Dealer/Distributer Rate of each and every sale of the Product made by it to a third party. Royalties become due to SAFE upon the later of (i) the Product is delivered (or delivery is attempted to be made) to the Dealer/Distributor and (ii) the Dealer/Distributor has reached an agreement for the sale of the Product to its customer.  The Dealer/Distributor acknowledges it obligation to notify SAFE of deliveries made, in accordance with clause 3.1.6
    2. Any and all expenses, costs and charges incurred by the Dealer/Distributor in the performance of its obligations under this agreement shall be paid by the Dealer/Distributor, unless SAFE has expressly agreed in advance in writing to pay such expenses, costs and charges.
    3. The Dealer/Distributor shall pay the full amount invoiced to it by SAFE in within 14 days of the date of invoice.
    4. As between SAFE and the Dealer/Distributor , the Dealer/Distributor  is solely responsible for the collection, remittance and payments of any or all taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the purchase, sale, importation, lease or other distribution of the Products.
  1. VAT and taxes
    1. All sums payable under this agreement, or otherwise payable by any party to any other party under this agreement are exclusive of any VAT chargeable on the supplies for which such sums (or any part of them) are the whole or part of the consideration for VAT purposes.
  2. Advertising and promotion
    1. The Dealer/Distributor shall:
      1. be responsible for advertising and promoting the Products in the Territory (but the Dealer/Distributor shall not use any advertising materials or promotional literature without SAFE’s prior written consent);
      2. ensure that the Product is established on its website where reasonably possible on its own distinctive page or as part of its range of products but to no lesser standard or prominence than any other product; and continues to be so for the Term;
      3. ensure that the Product is established in its showrooms throughout the Territory and where reasonably possible in a prime position but to no lesser position or prominence than any other product, and continues to be so for the Term;
      4. observe all reasonable directions and instructions given to it by SAFE for promotion and advertisement of the Products; and
      5. not make any written statement as to the quality or manufacture of the Products without the prior written approval of SAFE.
  3. Compliance with laws and policies
    1. 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.
    2. Local regulations relating to Products
      1. The Dealer/Distributor  warrants to SAFE that it has informed SAFE and the Manufacturer 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.
      2. SAFE, in turn, warrants as far as it is able as a non-manufacturer of the Products to the Dealer/Distributor that the Products comply with the Local Regulations in force at the date of this agreement.
      3. The Dealer/Distributor shall give SAFE and the Manufacturer as much advance notice as reasonably possible of any prospective changes in the Local Regulations.
      4. On receipt of notification from the Dealer/Distributor under clause 10.2.3, the Dealer/Distributor  shall procure that the Manufacturer shall 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.
  4. Anti-bribery compliance
    1. Consistent with its general compliance obligations under clause 10 (Compliance with laws and policies) the Dealer/Distributor shall:
      1. comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements“);
      2. 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 and will enforce them where appropriate;
      3. promptly report to SAFE any request or demand for any undue financial or other advantage of any kind received by the Dealer/Distributor in connection with the performance of this agreement.
  5. Data protection
    1. Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data, including, without limitation, (i) the Data Protection Act 1998, until the effective date of its repeal, (ii) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, for so long as the GDPR is effective in the UK, and (iii) any successor legislation to the Data Protection Act 1998 and the GDPR, in particular the Data Protection Bill 2017-2019, once it becomes law.
  6. Intellectual Property Rights
    1. SAFE hereby grants to the Dealer/Distributor the non-exclusive right, in the Territory, to use the Trade Marks and the Specification (Licensed Rights) in the subcontracting of the manufacture, promotion, advertisement and sale of the Products, subject to, and for the duration of, this agreement. The Dealer/Distributor  acknowledges and agrees that all rights in the Licensed Rights (including all and any Future Intellectual Property Rights  that may exist) shall remain in SAFE, and that Dealer/Distributor  has and will acquire no right in them by virtue of the discharge of its obligations under this agreement, except for the right to use the Licensed Rights as expressly provided in this agreement.
    2. The Dealer/Distributor hereby assigns any and all rights, entitlement or interest of it howsoever arising and of whatever nature in the Future Intellectual Property Rights in the Product.
    3. The Dealer/Distributor shall market and sell the Products only under the Trade Marks, and not in association with any other trade mark, brand or trade name, except as permitted by SAFE in writing. The Dealer/Distributor shall ensure that the appropriate Trade Marks shall appear on all Products, containers and advertisements for the Products, followed by the symbol ®, or the letters RTM, as appropriate.
    4. All representations of the Trade Marks that the Dealer/Distributor intends to use shall be submitted to SAFE for written approval before use.
    5. The Dealer/Distributor  shall comply with all rules for the use of the Trade Marks issued by SAFE (including those set out in the Brand Manual issued by SAFE) and shall not, without the prior written consent of SAFE, alter or make any addition to the labelling or packaging of the Products displaying the Trade Marks. The Dealer/Distributor  shall not alter, deface or remove any reference to the Trade Marks, any reference to SAFE or any other name displayed on the Products or their packaging or labelling.
    6. SAFE makes no representation or warranty as to the validity or enforceability of the Licenced Rights nor as to whether they infringe any intellectual property rights of third parties in the Territory.
    7. The Dealer/Distributor  shall not sub-license, assign, transfer, charge, or otherwise encumber the right to use, reference, or designate the rights of use of the Licensed Rights granted under this agreement, except that it may sub-licence the use of the Licensed Rights in the manufacture of the Product. Any sub-licence shall be on terms that offer no less protection than are provided in this agreement and which prohibit any further sub-licensing.
    8. The Dealer/Distributor shall not do, or omit to do, anything in its use of the Licensed Marks that could adversely affect their validity or reputation.
    9. The Dealer/Distributor acknowledges that this agreement does not operate to vest any right, title or interest in the Licensed Rights in the Dealer/Distributor or the Manufacturer. The Dealer/Distributor shall immediately on request enter into any further agreements with SAFE, in a form satisfactory to SAFE, necessary for the recording, registration or safeguarding of SAFE’s rights in the Licensed Rights.
    10. Each party shall promptly give notice in writing to the other if it becomes aware of:
      1. any infringement or suspected infringement of the Licensed Rights or any other Intellectual Property Rights relating to the Products anywhere worldwide; or
      2. any claim that any Product or the manufacture, use, sale or other disposal of any Product anywhere worldwide, whether or not under the Trade Marks, infringes the rights of any third party.
    11. In respect of any matter that falls within clause 13.10.1:
      1. SAFE shall in its absolute discretion, decide what action to take in respect of the matter (if any);
      2. SAFE shall conduct and have sole control over any consequent action that it deems necessary; and
      3. the costs of that action and any sums that may be paid or awarded as a result of that action shall be shared equally by the parties if the matter takes place within the Territory, or otherwise the costs of that action shall be borne by SAFE and any sums that may be paid or awarded shall be retained by SAFE.
    12. In respect of any matter that falls within clause 13.10.2:
      1. SAFE and the Dealer/Distributor shall agree:
        1. steps to take to prevent or terminate the infringement; and
        2. proportions in which they shall share the cost of those steps and any damages and other sums that may be awarded to or against them; and
      2. failing agreement between the parties, either party may take any action as it considers necessary or appropriate, at its own expense, to defend the claim and shall be entitled to and responsible for all damages and other sums that may be recovered or awarded against it as a result of that action.
    13. Each party shall, at the request and expense of the other, provide any reasonable assistance to the other (including the use of its name in, or being joined as a party to, proceedings) with any action to be taken by the other party under this clause 13, provided that that party is given such indemnity as it may reasonably require against any losses, costs and expenses it may incur as a result of or in connection with providing such assistance.
    14. SAFE alone is responsible for the registration and maintenance of any marks or designs that relate to the Products. The Dealer/Distributor shall not obtain or try to obtain or register for itself anywhere in the world any trade marks or trade names the same as or similar to the Trade Marks or the Registered Designs or Specification generally.
    15. The Dealer/Distributor  shall not use the Trade Marks as part of the name under which the Dealer/Distributor  conducts its business, or any connected business, or under which it sells or services any products (except the Products), or in any other way, except as expressly permitted hereunder.
    16. The Dealer/Distributor shall not sub-license, assign, transfer, charge, or otherwise encumber the right to use, reference, or designate the Licensed Rights to any other party, except as otherwise expressly permitted under this agreement.
    17. The Dealer/Distributor  shall immediately bring to the notice of SAFE any improper or wrongful use in the Territory of the Licenced Rights and the Dealer/Distributor  shall on being so requested by SAFE and at SAFE’s cost assist in taking all steps to defend the rights of SAFE including the institution at SAFE’s cost of any actions which it may deem necessary to commence for the protection of any of its right.
    18. Upon termination of this agreement for any reason, the Dealer/Distributor will immediately stop using all or any part of the Licensed Rights.
  7. Limitation of liability
    1. Nothing in this agreement shall limit or exclude SAFE’s liability for:
      1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
      2. fraud or fraudulent misrepresentation or wilful default; and
      3. any matter in respect of which it would be unlawful for SAFE to exclude or restrict liability.
    2. Subject to clause 14.1:
      1. SAFE shall not be liable to the Dealer/Distributor, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
        1. loss of profits;
        2. loss of sales or business;
        3. loss of agreements or contracts;
        4. loss of anticipated savings;
        5. loss of use or corruption of software, data or information;
        6. loss of or damage to goodwill; or
        7. any indirect or consequential loss.
      2. SAFE’s total liability to the Dealer/Distributor in respect of all other loss or damage arising under or in connection with this agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £100,000 for the entire Term.
  8. Commencement, duration and termination
    1. This agreement takes effect on the Commencement Date as the date when the Deler/Disribtor agrees quotation and, subject to clause 15.2, clause 15.3, and clause 18.4, shall continue for an initial term of 1 Year and indefinitely after that until terminated by either party giving at least six months’ prior written notice to expire on or after the expiry date of the initial term.
    2. Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
      1. the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
      2. the other party commits a material breach of any material term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
      3. the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
      4. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
      5. an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company);
      6. the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation; or
      7. there is a change of Control of the other party.
    3. SAFE may terminate this agreement immediately by notice in writing if:
      1. The Dealer/Distributor fails to achieve the Minimum Sales Amount in any Year as agreed between the Supplier and Dealer/Dealer/Distributor
      2. If it is the subject of a change of Control.
  9. Consequences of termination
    1. 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.
    2. Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
    3. On termination:
      1. SAFE shall have the option to buy from the Dealer/Distributor (and the Dealer/Distributor shall procure that SAFE shall be entitled to purchase stocks of the Products from the Manufacturer) any stocks of the Products (save for those which are the subject of an enforceable order from a purchaser for monetary consideration of such Products from the Dealer/Distributor ) at the same price the Dealer/Distributor  paid for them. To exercise the option, SAFE must give notice to the Dealer/Distributor  within25 Business Days of termination, stating the quantities of Products it wishes to buy. The Dealer/Distributor shall deliver such Products to SAFE within 5 Business days of receiving SAFE’s notice, and SAFE shall pay for the Products in full within 30 days of their delivery. The Dealer/Distributor shall be responsible for the costs of packaging, insurance and carriage of the Products;
      2. if SAFE chooses not to exercise its option to buy back the Products under clause 16.3.1, or purchases only part of the Dealer/Distributor ‘s stocks of Products, the Dealer/Distributor shall dispose of its remaining stocks of Products as directed by SAFE; and
      3. if SAFE chooses to buy back the Products under clause 16.3.1, the Dealer/Distributor  shall at SAFE’s option promptly destroy or return all samples, technical pamphlets, catalogues, advertising materials, specifications and other materials, documents or papers that relate to SAFE’s business that the Dealer/Distributor  may have in its possession or under its control (other than correspondence between the parties);
      4. the Dealer/Distributor shall make no further use of the Mould, and the parties shall, acting reasonably and in good faith, seek to agree terms for SAFE to purchase the Mould from the Dealer/Distributor. The parties acknowledge that in seeking to agree a price for such purchase they shall take account of the previous use, expected amount of future use, and condition of the Mould.
    4. Subject to clause 16.3, all other rights and licences of the Dealer/Distributor under this agreement shall terminate on the termination date.
  10. Confidentiality
    1. Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 17.2.
    2. Each party may disclose the other party’s confidential information:
      1. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 17; and
      2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
    3. No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
  11. Force majeure
    1. Force Majeure Event” means any circumstance not within a party’s reasonable control including, without limitation:
      1. acts of God, flood, storm, drought, earthquake or other natural disaster;
      2. epidemic or pandemic;
      3. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
      4. nuclear, chemical or biological contamination or sonic boom;
      5. any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
      6. collapse of buildings, breakdown of plant or machinery, fire, explosion or accident; and
      7. interruption or failure of utility service.
    2. Provided it has complied with clause 18.3, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (“Affected Party“), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
    3. The Affected Party shall:
      1. as soon as reasonably practicable after the start of the Force Majeure Event  notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
      2. use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
    4. If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 4 weeks, the party not affected by the Force Majeure Event may terminate this agreement by giving 4 weeks’ written notice to the Affected Party.
  12. Entire agreement
    1. 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.
    2. 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.
  13. Variation
    1. No amendment or variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
  14. Assignment and other dealings
    1. Save that SAFE may assign this agreement to a party to which Control has passed, this agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
  15. Waiver
    1. No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
  16. Severance
    1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
    2. If any provision or part-provision of this agreement is deemed deleted under clause 23.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
  17. Notices
    1. Any notice given to a party under or in connection with this contract shall be in writing and shall be:
      1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
      2. sent by email to the most recent email address notified or used by the other party.
    2. Any notice under clause 24.1.1 shall be deemed to have been received:
      1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
      2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.

There shall be no deemed receipt of notices sent by email. However, emails may be introduced as evidence in connection with any dispute, mediation or court proceedings arising out of this agreement, where they may be used to show that a notice has been received, in which case they shall be given such weight as may be appropriate after an examination of all the evidence, including acknowledgement and/or evidence of receipt.

    1. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
  1. Third party rights
    1. This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
  2. Counterparts
    1. This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
  3. Announcements
    1. No party shall make, or permit any person to make, any public announcement concerning the existence, subject matter or terms of this agreement, the wider transactions contemplated by it, or the relationship between the parties, without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed) except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
  4. Further assurance

Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may  be required for the purpose of giving full effect to this agreement.

  1. Interest
    1. If a party fails to make a payment due to the other party under this agreement by the due date, then, without limiting the other party’s remedies under clause 15 (Commencement, duration and termination), the defaulting party shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment.
    2. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
  1. Governing law
    1. This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
  2. Jurisdiction
    1. Each party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.

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