• In this Agreement including the recitals, the
following words shall have the following meanings:
Commencement Date: the date of this Agreement;
Control: the ability to direct the affairs of another whether
by virtue of the ownership of shares, contract or otherwise;
Distributor: Caretower Ltd,. Triangle House,
305 – 313 Greens
Lanes, Palmers Green, London, N13 4YB
Products: The whole of Omniquad Enterprise products together
with any other Enterprise products developed by Omniquad the manufacturer and
for which the Distributor has exclusive distribution rights and which the Distributor
may permit the Reseller by express notice in writing to promote and sell, plus
any other additional products for which Caretower may acquire distribution
rights.
Year: the period of 12 months from the Commencement Date
and each consecutive period of 12 months thereafter during the period of the
Agreement.
• References to clauses and schedules are to the
clauses and schedules to this Agreement.
• Headings are for convenience only and shall be
ignored in interpreting this Agreement.
• The Distributor hereby appoints the Reseller
to sell the Products on the terms of this Agreement;
• For the avoidance of doubt, no right, interest
or licence in respect of the Product or any part of the Product is granted
to the Reseller other the right to sell the Products referred to in Clause
2.1;
• The Reseller shall purchase the Products only
from the Distributor;
• The Reseller shall not represent itself as an agent of the Distributor
nor Omniquad the manufacturer for any purpose, nor pledge the Distributor's
credit or give any condition or warranty or make any representation on
the Distributor's behalf nor Omniquad's behalf or commit the Distributor or
Omniquad to any contracts. Further, the Reseller shall not without the Distributor's
prior written consent make any promises or guarantees with reference to the
Products beyond those contained in the promotional material supplied by
the Distributor and Omniquad or otherwise incur any liability on behalf of
the Distributor or Omniquad.
The Reseller undertakes and agrees with the Distributor at all times during
the term of this Agreement;
• to use its best endeavours to promote the distribution and sale
of the Products and without prejudice to the foregoing, in particular to promote
the distribution and sale of the Products to Corporate & SMEs;
• To contact its business in a manner compatible
to all of the Distributor's channel partner policies, promotions and rules
of engagement as announce by the distributor from time to time. Reseller
agrees to meet all customer delivery requirements;
• To inform the Distributor immediately of any
changes in ownership or control of the Reseller and of any change in its
organisation or method of doing business which might affect the performance
of the Reseller duties in this Agreement. The Distributor reserves the right
to terminate this agreement if control of The Reseller is taken over by a
person or organisation which may be a direct competitor of the Omniquad range
of products.
• The Distributor undertakes to use all reasonable
endeavours to meet all orders for the Products forwarded to the Distributor
by the Reseller in accordance with the Distributor's terms of delivery and
terms and conditions of sale.
The Distributor undertakes;
• to provide any information and support as may
reasonably be requested by the Reseller to enable it properly and efficiently
to discharge its duties under this Agreement;
• to supply the Products only to the Reseller for
resale;
• to approve or reject any promotional information
or material submitted by the Reseller within 14 days of receipt;
• The Distributor shall provide the first line
support to the Reseller. The Distributor will provide the training and support
to the reseller. The Reseller will make available the necessary resources
to train, assist and provide timely response to questions and issues that
arise. All training and support provided by The Distributor will be given
at The Distributors offices.
• The Goods are at the risk
of the Reseller from the time of delivery.
• Ownership of the Goods shall not pass to the
Reseller until the Distributor has received in full (in cash or cleared funds)
all sums due to it in respect of:
6.2.1 the Goods; and
• all other sums which are
or which become due to the Distributor from the Reseller on any account.
Until ownership of the Goods has passed to the Reseller, the Reseller must:
6.2.3 hold the Goods on a fiduciary basis as the Distributor's bailee;
6.2.4 store the Goods in such a way that they remain readily identifiable
as the Distributor's property;
6.2.5 not destroy, deface or obscure any identifying mark or packaging on
or relating to the Goods;
6.2.6 maintain the Goods in satisfactory condition and
6.2.7 not authorise any licencing except of that issued by the Distributor
and or product manufacturer.
• The Reseller may resell
the Goods before ownership has passed to it solely on the following conditions:
6.3.1 any sale shall be effected in the ordinary course of the Reseller's
business at terms consistant with the trading terms betwween The Distributor
and The Reseller
• any such sale shall be a sale of the Distributor's
property on the Reseller's own behalf and the Reseller shall deal as principal
when making such a sale; and
• Goods shall remain as Distributor's property until
paid for in full.
• The Reseller's right to possession of the Goods
shall terminate immediately if:
6.4.1 the Reseller has a bankruptcy order made against him or makes an arrangement
or composition with his creditors, or otherwise takes the benefit of any Act
for the time being in force for the relief of insolvent debtors, or (being
a body corporate) convenes a meeting of creditors (whether formal or informal),
or enters into liquidation (whether voluntary or compulsory) except a solvent
voluntary liquidation for the purpose only of reconstruction or amalgamation,
or has a receiver and/or manager, administrator or administrative receiver
appointed of its undertaking or any part thereof, or a resolution is passed
or a petition presented to any court for the winding up of the Reseller or
for the granting of an administration order in respect of the Reseller, or
any proceedings are commenced relating to the insolvency or possible insolvency
of the Reseller; or
6.4.2 the Reseller suffers or allows any execution, whether legal or equitable,
to be levied on his/its property or obtained against him/it, or fails to observe/perform
any of his/its obligations under the Contract or any other contract between
the Distributor and the Reseller or is unable to pay its debts within the meaning
of section 123 of the Insolvency Act 1986 or the Reseller ceases to trade;
or
6.4.3 the Reseller encumbers or in any way charges any of the Goods.
• The Distributor shall be entitled to recover
payment for the Goods notwithstanding that ownership of any of the Goods
has not passed from the Distributor.
• PRICES AND PAYMENT
• The prices to be paid by the Reseller to the
Distributor for the Products are to be as per the discount levels according
to the status of The Reseller as per the Channel Partner Reseller accreditation
program, such discounts will be based on the Distributor's list prices as
established by the Distributor from time to time, without set intervals.
Such price list prices will become in effect the first day of the next month
following notification date to reseller.
• The renewal prices to be paid by the Reseller
to the Distributor will be at the same discount level as per reseller accreditation
status and based on the current Distributor's list price providing the original
sale belongs to the Reseller. Any renewals from sales not originally generated
(introduced to The Distributor) by the Reseller will only be entitled to
a non-encumber discount from the current Distributor's list price. Non-encumber
reseller discounts will be as per level set by Caretower for the Channel
Partner Resellers. Non encumber discounts may change from time to time at
no set intervals and will become in effect the first day of the next month
following notification date to reseller.
• The (%) percentage discount of the Distributor's
list prices granted to the Reseller is subject to The Reseller's accreditation
status gained or granted as per the Distributor's Channel Partner Accreditation
program requirements. The Distributor reserves the right to withdraw accreditation
level granted to a Reseller and accordingly change the discount levels granted
to the Reseller without any prior notice.
• In the event of the Reseller failing to place
a minimum order value as per accreditation status requirements within the
first 12 (twelve) months of this agreement, the Distributor reserves the
right to renegotiate the accreditation status and the discount percentage.
• The Distributor may from time to time provide
a further rebate incentive discounts to each Reseller at its own discretion.
The distributor reserves the right to offer various forms of incentives directly
to each Reseller's sales employees as per their performance in the selling
of the distributor's products on promotion.
• The Distributor will endeavour to give the Reseller
a minimum of seven days notice of any rises in the prices for the Products;
• Any and all expenses, costs and charges incurred by the Reseller
in the performance of its obligations under this Agreement shall be paid
by the Reseller unless the Distributor has expressly agreed beforehand in writing
to pay such expenses, costs and charges;
• The Reseller shall pay the full amount invoiced to it by the
Distributor in pounds sterling within 30 days of the date of invoice;
• The Reseller shall not be entitled by reason of any set-off,
counter-claim, abatement, or other similar deduction to withhold payment
of any amount due to the Distributor, except for outstanding credit notes for
faulty/mint returns providing the credit notes relate to the same accounting
period and provided that a returns/cancellation authorisation has been approved
in writing by one of The Distributor's acting directors;
• Interest shall be chargeable on any amounts overdue
at the rate of 4% above the base rate of Barclays Bank PLC as applying from
time to time to run from the due date for payment until receipt by the Distributor
of the full amount whether or not after judgment and without prejudice to
any other right or remedy of the Distributor;
• The Reseller shall:
• be responsible for it's own advertising and promotion
of the Products in the market;
• be responsible for the advertising and promotion
of the Products to its clients;
• in respect of advertising and promotion carried
out pursuant to Clause 8.1(c) the Reseller shall observe all directions and
instructions given to it by the Distributor in relation to promotion and
advertisement of the Products, and shall not make any written statement as
to the quality or manufacture of the Products without the prior written approval
of the Distributor.
• The Distributor shall provide the Reseller with
information on the advertising and promotion carried out by the Distributor
and shall supply such quantities of available promotional and advertising
material, as the Reseller shall reasonably request at the cost of the Reseller
except in the cases where The Distributor will offer promotional material
free of charge.
• The Distributor's Conditions of Sale in force
from time to time shall apply to all sales by the Distributor to the Reseller
under this Agreement. If there is any inconsistency between the Conditions
of Sale and the terms of this Agreement, the latter shall prevail.
• The Reseller expressly recognises that all rights,
title and interest in the intellectual property comprised in the trade names,
brands, logos, holograms and other distinguishing marks that appear in the
Components and Finished Products which form the subject matter of this Agreement
vest entirely on Omniquad or in third parties that have authorised Omniquad
to use them;
• The Reseller shall not apply for any type of
registration of the rights referred to in Clause 10.1 in its own name or
in that of third parties;
• The Reseller shall not use the rights referred
to in Clause 10.1 in any manner (including the use of same as a domain name),
save under the terms of this Agreement or otherwise with the express authorisation
of the Distributor;
• The Reseller undertakes not to harm, discredit
or by any other means damage the image and prestige enjoyed by the name,
the brand and the products and services of Omniquad or the Distributor. In
particular, the Reseller may not alter or modify the contents, the external
appearance, the components or any of the elements of the Products, and may
not, consequently, hide or conceal in any form the brands, anagram, designs
and other distinguishing and identifying marks of the products and/or services
of Omniquad or the Distributor;
• The Reseller expressly recognises The Distributor's
or the manufacturer's ( as it may apply) ownership of all rights of intellectual
property deriving from the Products. Under no circumstances may this Agreement
be taken or interpreted to grant the assignment or transmission of ownership
in favour of the Reseller of the aforementioned intellectual property rights;
• The Reseller undertakes not to perform any act
that might harm the rights referred to in Clause 10.1, and other technical
operating information owned The Distributor's or the Manufacturer ( as it
may apply), and to keep the Distributor informed of any attack, imitation
or falsification thereof which may be brought to its attention, and of any
act of unlawful or unfair competition that may occur, providing all the assistance
and collaboration necessary in order for said rights to enjoy due protection.
• RECORDS AND REGISTRATION
• The Reseller undertakes to maintain appropriate
up-to-date and accurate records to enable the immediate recall of any batches
of the Products or any of them from the retail and/or wholesale markets.
• The Reseller shall, at the Distributor's cost,
give such assistance as the Distributor shall require for the purpose of
recalling as a matter of urgency any quantities of the Products or any of
them from the retail and/or wholesale market;
• The Reseller shall ensure that the end user is
aware of the correct registration procedures.
• This Agreement shall come into effect on the
Commencement Date and, subject to clauses 12.2 and 15.2 , shall continue
in force for an initial term of 1 Year and indefinitely thereafter until
terminated by either party giving not less than one months' prior written
notice to expire on or after the expiry date of the initial term;
• the other party commits any material breach of
any of the terms of this Agreement and (if such a breach is remediable) fails
to remedy that breach within 30 days of that party being notified of the
breach;
• if an order is made or a resolution is passed
for the winding up of the other party or if an order is made for the appointment
of an administrator to manage the affairs, business and property of the other
party or if a receiver is appointed of any of the other party's assets or
undertaking or if circumstances arise which entitle the Court or a creditor
to appoint a receiver or manager or which entitle the Court to make a winding-up
order or if the other party takes or suffers any similar or analogous action
in consequence of debt;
• either party purports to assign its rights or
obligations under this Agreement.
• Termination of this Agreement however caused
shall be without prejudice to any rights or liabilities accrued at the date
of termination;
• The Distributor shall be entitled to cancel all orders placed
by the Reseller prior to the termination date, whether or not the Distributor
has accepted such orders, without incurring any liability of whatsoever
nature to the Reseller.
• Each party agrees and undertakes that during the term of this
Agreement and thereafter it will keep confidential and will not use for its
own purposes nor without the prior written consent of the other party disclose
to any third party all information of a confidential nature (including
trade secrets and information of commercial value) which may become known to
that party from the other party (“confidential information”) unless the information
is public knowledge or already known to that party at the time of disclosure
or subsequently becomes public knowledge other than by breach of this Agreement
or subsequently comes lawfully into the possession of that party from a third
party;
• To the extent necessary to implement the provisions
of this Agreement each party may disclose the confidential information to
those of its employees as may be reasonably necessary or desirable provided
that before any such disclosure each party shall make those employees aware
of its obligations of confidentiality under this Agreement and shall at all
times procure compliance by those employees with them.
• The obligations of each party under this Agreement shall be
suspended during the period and to the extent that that party is prevented
or hindered from complying with them by any cause beyond its reasonable control
including (insofar as beyond such control but without prejudice to the generality
of the foregoing expression) strikes, lock-outs, labour disputes, act of God,
war, 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, difficulty or increased expense in obtaining
workmen, materials, goods or raw materials in connection with the performance
of this Agreement;
• This Agreement constitutes the entire understanding between
the parties with respect to the subject matter of this Agreement and supersedes
all prior agreements, negotiations and discussions between the parties
relating to it.
• Save as expressly provided in this Agreement, no amendment or
variation of this Agreement shall be effective unless in writing and signed
by a duly authorised representative of each of the parties to it.
• Neither party shall without the prior written
consent of the other party assign, transfer, charge or deal in any other
manner with this Agreement or its rights under it or part of it, or purport
to do any of the same, nor sub-contract any or all of its obligations under
this Agreement. Permission will not be reasonably withheld.
• The parties declare that they each have the right,
power and authority and have taken all action necessary to execute and deliver,
and to exercise their rights and perform their obligations under this Agreement.
• The failure of a party to exercise or enforce
any right under this Agreement shall not be deemed to be a waiver of that
right nor operate to bar the exercise or enforcement of it at any time or
times thereafter.
• If any part of this Agreement becomes invalid, illegal or unenforceable
the parties shall in such an event negotiate in good faith in order to agree
the terms of a mutually satisfactory provision to be substituted for the
invalid, illegal or unenforceable provision which as nearly as possible
validly gives effect to their intentions as expressed in this Agreement. Failure
to agree on such a provision within six months of commencement of those negotiations
shall result in automatic termination of this Agreement. The obligations
of the parties under any invalid, illegal or unenforceable provision of the
Agreement shall be suspended during such a negotiation.
• Any notice required to be given pursuant to this Agreement shall
be in writing and shall be given by delivering the notice by hand at, or by
sending the same by prepaid first class post (airmail if to an address outside
the country of posting) to the address of the relevant party set out in this
Agreement or such other address as either party notifies to the other from
time to time. Any notice given according to the above procedure shall
be deemed to have been given at the time of delivery (if delivered by hand)
and when received (if sent by post).
A person who is not a party to this Agreement has no right under the Contracts
(Rights of Third Parties) Act 1999 to enforce any term of this Agreement but
this does not affect any right or remedy of a third party which exists or is
available apart from that Act.
• This Agreement shall be governed by and construed
in accordance with English law and each party hereby irrevocably submits
to the jurisdiction of the English Courts.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
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Anti virus
Channel Reseller Agreement