This Distributor Policy (this "Policy") is made and effective as of [Effective date], by and between [Sender.Company], a [Sender.Country] company, with an address located at [Sender.Address] ("Company"), and [Client.Company], a [Client.Country] company, with an address located at [Client.Address] ("Distributor").
Company operates a website that sells carbide inserts and cutting tools (the "Products"). Distributor desires to purchase the Products from Company for resale to customers located in the territories or geographic areas as defined in Section 1.b (the "Territory"). Company desires to appoint Distributor as its exclusive distributor of the Products in the Territory, and Distributor desires such appointment subject to the terms and conditions set forth in this Policy.
Now, Therefore, in consideration of the foregoing, and of the mutual benefit contained herein, the Parties, intending to be legally bound, agree as follows:
Agreement of the Parties
- Appointment, Acceptance & Scope
- Exclusive Appointment. Subject to the terms and conditions of this Policy, Company hereby appoints and grants Distributor the exclusive right to sell and distribute the Products to customers located in the Territory (the "Customers") and to render other services as a distributor for Company as set forth herein. Distributor shall limit its activities with respect to the Products to Customers located within the Territory and refrain from selling or otherwise transferring, directly or indirectly, the Products to any person outside the Territory, without the express written consent of Company. Company shall not sell or otherwise supply, directly or indirectly, the Products in the Territory except by sale through the Distributor, and Company shall not contact any of Distributor’s Customers for any reason, without the prior written approval of Distributor.
- Territory. The rights granted Distributor hereunder are granted for the following geographical areas and markets: [Specify Territory].
- Products. The Products manufactured and sold by Company to Distributor for distribution hereunder are as follows: [Specify Products].
- Subagents. Distributor may appoint sub-agents, sub-distributors, sub-representatives or other persons to act on Distributor’s behalf or to otherwise perform any of Distributor’s obligations under this Policy within the Territory; provided that (i) any compensation to such sub-agent, sub-distributor, subrepresentative or other person to act on Distributor’s behalf or to otherwise perform any of Distributor’s obligations shall be solely Distributor’s responsibility, and (ii) such appointment does not deprive Company of the essential rights to which it is entitled under this Policy.
- Duties & Responsibilities
- Distributor agrees that it will diligently perform the services and obligations detailed in this Policy. The operations of Distributor are under its sole and exclusive control, including without limitation supervision of, and liability for expenses incurred with respect to, employees.
- Distributor agrees that it will use its best efforts to promote actively and effectively market and sell throughout the Territory all Products offered by it during the term of this Policy.
- Distributor agrees that it will maintain an adequate sales staff trained in sales techniques for selling Products.
- Distributor agrees that it will maintain an adequate inventory of Products at all times.
- Distributor agrees that it will provide prompt and efficient service to all Customers within the Territory.
- Distributor agrees that it will comply with all applicable laws, rules and regulations relating to its activities under this Policy.
- Distributor agrees that it will not make any representations or warranties on behalf of Company or concerning any Product except as expressly authorized by Company in writing.
- Distributor agrees that it will not engage in any unfair trade practices or deceptive acts or practices with respect to the Products or Company.
- Distributor agrees that it will provide Company with periodic reports on its sales activities, customer feedback, market conditions and other information related to the Products as reasonably requested by Company.
- Distributor agrees that it will cooperate with Company in any promotional or marketing activities conducted by Company in the Territory.
- Orders & Acceptance
- All orders for Products placed by Distributor shall be in writing and shall specify the Products ordered, quantity, price, total purchase price, requested delivery dates, shipping instructions and any other information required by Company. All orders are subject to acceptance by Company at its principal place of business. No order shall be binding upon Company unless and until accepted by Company in writing.
- Company reserves the right to allocate Products among its customers in its sole discretion, including Distributor and Company’s other distributors.
- Company reserves the right to discontinue the manufacture or sale of any Product at any time or to alter, modify or change the design of any Product at any time, without incurring any liability to Distributor.
- Pricing & Payment
- The prices for the Products shall be as set forth in Company’s price list in effect at the time of acceptance of an order. Company reserves the right to change its prices at any time without notice to Distributor.
- All prices are exclusive of any taxes, duties, fees or other charges imposed by any governmental authority with respect to the Products or this Policy (collectively, “Taxes”). Distributor shall be solely responsible for paying all Taxes relating to its purchase and distribution of the Products.
- Distributor shall pay for all Products ordered by Distributor within [Payment term] days of receipt of an invoice from Company. All payments shall be made in [Currency] by [Payment method].
- If Distributor fails to pay any amount when due under this Policy, Distributor shall pay interest on the overdue amount at the rate of [Interest rate] per month or the maximum rate permitted by law, whichever is lower. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount.
- Delivery & Risk of Loss
- Company shall deliver the Products to Distributor [Delivery term] at [Delivery location]. The delivery dates are estimates only and Company shall not be liable for any delays in delivery.
- Risk of loss or damage to the Products shall pass to Distributor upon delivery of the Products to Distributor [Delivery term]. Title to the Products shall pass to Distributor upon payment in full of the purchase price for the Products.
- Distributor shall inspect the Products within [Inspection period] days of receipt and notify Company in writing of any defective or nonconforming Products. If Distributor fails to notify Company within such period, Distributor shall be deemed to have accepted the Products and waived any right to reject or return them.
- Warranty & Disclaimer
- Company warrants to Distributor that for a period of [Warranty period] from the date of delivery (the “Warranty Period”), the Products will be free from material defects in materials and workmanship and will conform substantially to Company’s specifications for such Products.
- If Distributor notifies Company in writing of any breach of warranty during the Warranty Period and returns such defective or nonconforming Product to Company in accordance with Company’s instructions, Company shall, at its option and expense, repair or replace such Product or refund the purchase price paid by Distributor for such Product. This shall be Distributor’s sole and exclusive remedy for any breach of warranty by Company.
- The warranty does not apply to any Product that (i) has been altered, modified or repaired by anyone other than Company or its authorized service provider; (ii) has been subjected to misuse, negligence, accident or improper handling; (iii) has been used in violation of Company’s instructions or specifications; or (iv) has normal wear and tear.
- EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN THIS SECTION 6, COMPANY MAKES NO OTHER WARRANTIES OF ANY KIND WITH RESPECT TO THE PRODUCTS, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE PRODUCTS WILL MEET THE REQUIREMENTS OR EXPECTATIONS OF DISTRIBUTOR OR ANY CUSTOMER.
- Company shall indemnify, defend and hold harmless Distributor and its officers, directors, employees and agents from and against any and all claims, demands, losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any actual or alleged (i) breach of any representation, warranty or covenant of Company under this Policy; or (ii) infringement or misappropriation of any intellectual property right of any third party by the Products.
- Distributor shall indemnify, defend and hold harmless Company and its officers, directors, employees and agents from and against any and all claims, demands, losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any actual or alleged (i) breach of any representation, warranty or covenant of Distributor under this Policy; or (ii) negligence or willful misconduct of Distributor or its sub-agents in connection with the distribution or use of the Products.
- The indemnified party shall promptly notify the indemnifying party in writing of any claim for which indemnification is sought and cooperate fully with the indemnifying party in the defense of such claim. The indemnifying party shall have sole control of the defense and settlement of such claim; provided that it shall not settle any claim without the prior written consent of the indemnified party if such settlement would impose any liability or obligation on the indemnified party.
- Limitation of Liability
- IN NO EVENT SHALL COMPANY BE LIABLE TO DISTRIBUTOR OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS POLICY OR THE PRODUCTS, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY TO DISTRIBUTOR OR ANY THIRD PARTY ARISING OUT OF OR RELATING TO THIS POLICY OR THE PRODUCTS EXCEED THE AMOUNTS PAID BY DISTRIBUTOR TO COMPANY FOR THE PRODUCTS GIVING RISE TO SUCH LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
- Term & Termination
- This Policy shall commence on the Effective Date and continue for a period of [Term] years unless earlier terminated as provided herein (the “Term”). This Policy shall automatically renew for successive one (1) year periods unless either party gives written notice to the other party of its intention not to renew at least [Renewal notice period] days prior to the expiration of the then-current Term.
- Either party may terminate this Policy upon written notice to the other party if the other party (i) breaches any material provision of this Policy and fails to cure such breach within [Cure period] days after receiving written notice thereof; (ii) becomes insolvent, makes an assignment for the benefit of creditors, files a petition in bankruptcy or is adjudicated bankrupt; or (iii) ceases to conduct its operations in the normal course of business.
- Upon termination or expiration of this Policy for any reason: (i) Distributor shall cease to be an authorized distributor of the Products and shall cease all use of Company’s trademarks and other intellectual property rights; (ii) Distributor shall immediately pay to Company all amounts owed to Company under this Policy; (iii) each party shall return to the other party all confidential information and other property belonging to the other party; and (iv) all rights and obligations of the parties under this Policy shall cease except for those that by their nature are intended to survive such termination or expiration.
- Each party agrees that it will not disclose to any third party or use any confidential information disclosed to it by the other party except as expressly permitted in this Policy. Confidential information includes any information that relates to the business of the disclosing party that is not generally known to the public, including without limitation product information, customer lists, pricing data, sources of supply, financial data, marketing plans, business plans and technical data.
- Confidential information does not include any information that (i) is or becomes publicly available without breach of this Policy; (ii) is rightfully received by the receiving party from a third party without restriction on disclosure; (iii) is independently developed by the receiving party without use of or reference to the confidential information of the disclosing party; or (iv) is approved for release by the disclosing party in writing.
- Each party agrees that it will take all reasonable steps to protect the confidential information of the other party and prevent any unauthorized use or disclosure thereof. Each party agrees that it will not copy, reproduce, modify or reverse engineer any confidential information of the other party except as necessary for the purposes of this Policy.
- Each party agrees that it will return or destroy all confidential information of the other party upon termination or expiration of this Policy or at any time upon request of the other party.
- Intellectual Property Rights
- Company is and shall remain the sole and exclusive owner of all intellectual property rights in and to the Products and any related materials, including without limitation any trademarks, trade names, logos, designs, patents, copyrights, trade secrets and know-how (collectively, the "Intellectual Property").
- Company hereby grants Distributor a non-exclusive, non-transferable, revocable license to use the Intellectual Property solely for the purposes of marketing and selling the Products in accordance with this Policy. Distributor shall not use the Intellectual Property for any other purpose or in any manner that may be confusing, misleading or detrimental to Company or its reputation.
- Distributor shall not register or attempt to register any Intellectual Property or any domain name, social media account or other online identifier that incorporates or is confusingly similar to any Intellectual Property without the prior written consent of Company.
- Distributor shall promptly notify Company of any actual or suspected infringement or misappropriation of any Intellectual Property by any third party and cooperate fully with Company in the protection and enforcement of its Intellectual Property rights.
- Relationship of Parties
- The relationship between Company and Distributor is that of independent contractors. Nothing in this Policy shall be construed to create a partnership, joint venture, franchise, employment or agency relationship between the parties. Neither party has the authority to bind the other or incur any obligation on its behalf.
- Distributor shall not make any representations or warranties on behalf of Company or concerning any Product except as expressly authorized by Company in writing.
- Distributor shall not use Company’s name, logo or trademarks in any advertising, promotional materials or press releases without the prior written consent of Company.
- Force Majeure
- Neither party shall be liable for any failure or delay in performing its obligations under this Policy to the extent that such failure or delay is caused by a force majeure event. A force majeure event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, such as strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
- The party affected by a force majeure event shall notify the other party as soon as reasonably possible and use all reasonable efforts to resume performance as soon as possible.
- If a force majeure event prevents, hinders or delays a party's performance of its obligations for a continuous period of more than [Force majeure period] days, the other party may terminate this Policy immediately by giving written notice to the affected party.
- Distributor shall not assign, transfer or delegate any of its rights or obligations under this Policy without the prior written consent of Company. Any purported assignment, transfer or delegation in violation of this section shall be null and void.
- Company may assign, transfer or delegate any of its rights or obligations under this Policy to any third party without the consent of Distributor.
- All notices, requests and other communications under this Policy shall be in writing and shall be delivered by hand, sent by registered mail or email, or faxed to the parties at their respective addresses set forth below (or to such other address as a party may designate by notice to the other party).
- All notices shall be deemed to have been given: (i) when delivered by hand; (ii) when received by the addressee if sent by registered mail; (iii) when transmitted if sent by email or fax, provided that a copy is also sent by registered mail; or (iv) on the next business day if sent by overnight courier.
- Governing Law & Dispute Resolution
- This Policy shall be governed by and construed in accordance with the laws of [Governing law jurisdiction], without regard to its conflict of laws rules.
- Any dispute arising out of or relating to this Policy shall be submitted to [Dispute resolution method] in [Dispute resolution location], and shall be conducted in accordance with the rules of [Dispute resolution institution]. The language of the arbitration shall be [Dispute resolution language]. The arbitral award shall be final and binding on the parties and may be enforced in any court having jurisdiction.
- This Policy constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings or representations, whether written or oral.
- This Policy may not be amended or modified except by a written instrument signed by both parties.
- The failure of either party to enforce any right or provision of this Policy shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
- If any provision of this Policy is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision shall be severed from this Policy and the remaining provisions shall remain in full force and effect.
- The headings in this Policy are for convenience only and shall not affect the interpretation of any provision hereof.
In Witness Whereof, the parties have executed this Policy as of the date first written above.