Common use of Customer Dealings Clause in Contracts

Customer Dealings. (a) The retention and use of personal data of Customers and members of the public by the Licensee shall at all times comply with the terms of the Direct Selling Guidelines incorporated in the TM Guidelines (as amended from time to time), relevant legislation (including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act 2003) and regulations and best practice recommendations of regulatory bodies (including but not limited to the Federal Trade Commission and Federal Communications Commission) and nationally recognized industry-sponsored bodies (including but not limited to the Direct Marketing Association and Direct Selling Association). (b) The Licensee shall not (i) send any unsolicited marketing communications of any kind (including but not limited to email, SMS, text messaging, outbound telemarketing and mail) to those Customers or potential customers who have opted out of receiving such communications either directly with the Licensee or another third party from whom the Licensee has obtained personal data, and/or (ii) make telemarketing communications to any potential customers who have registered their telephone numbers with the Federal Trade Commission’s National Do Not Call Registry unless Licensee has an existing business relationship with such potential customers. PAYMENT OF ROYALTIES 4.1 The Licensee agrees to pay VEL continuing Royalties which, for any one Financial Year (and pro rata for parts thereof), shall be 0.25% of Gross Sales during that Financial Year, and subject to Clause 4.7, up to a maximum of USD 4,000,000 (four million United States dollars) in any one Financial Year (the Cap). The Licensee shall pay the amount payable under this Clause in respect of each quarter within ten (10) Business Days of the end of each quarter and in the manner nominated by VEL. 4.2 The Licensee shall supply to VEL: (a) a quarterly statement of the Licensee’s Gross Sales within five (5) Business Days of the end of each quarter of the applicable Financial Year; (b) a statement showing Gross Sales for each Accounting Period of the Licensee within one (1) month after the end of such period certified by a qualified auditor approved by VEL; (c) a balance sheet and profit and loss account showing the true position of the business of the Licensee for each Financial Year during the Term and for the Financial Year first expiring after the expiration or termination of this Agreement after the end of the relevant Financial Year certified by a qualified auditor approved by VEL; and (d) any other information relating to the financial position of the Licensee as may be reasonably requested by VEL during the Term of this Agreement. 4.3 If the Gross Sales certified by the auditors of the Licensee in the statement provided pursuant to Clause 4.2(b) multiplied by the continuing royalty rate as set out in Clause 4.1 exceeds the amount paid to VEL by the Licensee pursuant to Clause 4.1 for the Accounting Period, the Licensee shall pay such excess to VEL, such payment to accompany the statement. 4.4 If the Gross Sales certified by the auditors of the Licensee in the statement provided pursuant to Clause 4.2(b) multiplied by the continuing royalty rate as set out in Clause 4.1 is less than the amount paid to VEL by the Licensee pursuant to Clause 4.1 for the Accounting Period, VEL agrees to refund the amount of such deficiency to the Licensee within thirty (30) days of the receipt of such statement by VEL. 4.5 Any obligation to make a payment under this Agreement has been expressed exclusive of any federal, state, local or other governmental value added, sales or similar tax. If such tax is chargeable under this Agreement, any payments due to VEL hereunder shall be increased to include an amount equal to such tax. 4.6 In the event of any payment to be made by the Licensee under this Agreement not being received by VEL on or before the date of payment, VEL shall be entitled to charge interest on such payment at the rate of four percent (4%) per annum above the base rate of Lloyds TSB Bank PLC from the due date for payment to the date when payment is actually received (both before and after any court judgment). 4.7 Beginning on January 1, 2008, the Parties shall make annual adjustments for inflation to the Cap equal to the change in the United States Department of Labor Consumer Price Index (set forth at xxxx://xxx.xxx.xxx/cpi/) from January 1 of one Financial Year of the Agreement to the following January 1, calculated as of January 1. All such calculations shall be made within thirty (30) days of the date that such information is released by the United States Department of Labor and adjustments to the Cap shall be applicable for the following Financial Year.