DATED 9 APRIL, 1996
WISDOM TOOTHBRUSHES LIMITED (1)
- and -
SAGACITY I, Inc. (2)
EXCLUSIVE DISTRIBUTORSHIP AGREEMENT
INDEX
Clause
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1. Interpretation
2. Appointment and Term
3. Distributor's and Company's Duties
4. Terms of Supply
5. Title
6. Sales and Marketing
7. Targets
8. Intellectual Property
9. Confidentiality
10. Termination
11. Consequences of Termination
12. Force Majeure
13. Assignment
14. Severability
15. Entire Agreement
16. Variations
17. Waiver
18. Notices
19. Other Provisions
20. Governing Law and Jurisdiction
Schedule 1: The Products
Schedule 2: The Territory
Schedule 3: The Outstanding Debts
Schedule 4: The Estimated Targets
Schedule 5: Current Price List
Schedule 6: Current Standard Conditions of the Company
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AGREEMENT
DATE: 9 APRIL
PARTIES: (1) WISDOM TOOTHBRUSHES LIMITED (registered no.02881666)
a company incorporated under the laws of England and Wales
and having its registered offices at Xxx Xxxx Xxxx,
Xxxxxxxxx, Xxxxxxx, XX0 0XX
("the Company")
(2) SAGACITY I, Inc. a company incorporated under the laws of
the State of Delaware, United States of America and having
its registered office at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx, Xxxxxx of New Castle, United States of America and
the name of its registered agent at such address being The
Corporation Trust Company. ("the Distributor")
RECITALS:
(A) The Company is principally engaged in the business of
design, manufacture and distribution of the Products (as defined below).
(B) The Company wishes to develop its business in the Territory
and wishes to appoint the Distributor as its exclusive distributor in the
Territory.
(C) The Distributor has extensive marketing experience in the
Territory and wishes to be appointed as the Company's exclusive distributor in
the Territory.
(D) The Company has agreed to appoint the Distributor as its
exclusive distributor in the Territory on the terms and subject to the
conditions set out below.
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AGREEMENT
1. Interpretation
In this Agreement the following words and expressions shall (save
where the context otherwise requires) have the following meanings:-
"BMG Partnership" means the BMG Partnership being a
general partnership under Delaware law
constituted by a Partnership Agreement
dated 14 February 1990.
"Confidential Information" means any information which is disclosed
to either party ("Disclosee") by the
other ("Discloser") pursuant to this
Agreement and any information relating
in any way to the Products, the
Intellectual Property Rights or the
Discloser which comes to the Disclosee's
knowledge before or after the
termination of this Agreement, whether
such information is expressed orally or
in writing and whether or not expressly
stated to be confidential or marked as
such;
"CIF" means "cost insurance and freight" as
defined and explained in Incoterms 1990
as published by the International
Chamber of Commerce, Paris, France;
"Intellectual Property Rights" means any trade xxxx, trade name, brand
name, service xxxx, copyright,
registered design, patent or other
industrial or intellectual property
right existing in any part of the world
which relates in any way to the
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Products, and any applications for any of the foregoing;
"Products" means, subject to Clause 4.3, the
products details of which are listed in
Schedule 1 and such other products as
the parties may from time to time agree
in writing;
"Territory" the countries and dependent areas listed
in Schedule 2;
"Year" means each successive period of 12
months.
2. Appointment and Term
2.1 The Company hereby appoints the Distributor as its exclusive
distributor in the Territory for the sale of the Products, and so long as the
Distributor is in compliance with its obligations under this Agreement, the
Company shall:
2.1.1 (subject to Clause 7 (Targets)) not grant to any other person or
undertaking the right to represent the Company or to promote or sell
the Products in the Territory;
2.1.2 refrain from promoting or selling the Products in the Territory
directly other than through the Distributor;
2.1.3 so far as it is lawfully able, take all reasonable steps to prevent
its other distributors from promoting or selling the Products in the
Territory;
2.1.4 refer all enquiries received by it for the sale of the Products to
customers in the Territory to the Distributor; and
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2.1.5 within three days of dispatch of the Products, notify the Distributor
of the same.
2.2 Unless terminated earlier in accordance with Clauses 4.7.1, 7.3 or
10.2 or 10.3, this Agreement shall run for the period of three years from the
date of this Agreement and thereafter unless or until terminated by either party
in accordance with Clause 10.1.
3. Distributor's Duties
3.1 The Distributor shall during the continuance of this Agreement and
at its own expense:
3.1.1 use its best endeavours to promote, sell and distribute the Products
and develop the market for the Products throughout the Territory
provided that nothing in this sub-Clause 3.1.1 shall oblige the
Distributor to increase its employees or resources from the current
levels of the BMG Partnership;
3.1.2 only purchase Products for resale in the Territory from the Company or
otherwise as may be agreed in writing unless products are deemed to be
non-competing;
3.1.3 maintain a representative range of products, as reasonably determined
by the Company from time to time and maintain such stocks as are
necessary to meet reasonably anticipated customer demand;
3.1.4 assist the Company as requested with market research in the Territory
and support the Company in the execution of marketing plans and
strategies provided that this exercise does not place undue burden on
the Distributor or its employees;
3.1.5 maintain adequate records relating to orders and sales of the Products
and other business matters relating to the Products and promptly
supply such records to the Company upon request;
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3.1.6 make clear, in all dealings with customers and potential customers
that it is acting as a distributor of the Product and not as an agent
of the Company;
3.1.7 participate (with at lease one employee or representative of the
Distributor) in up to 2 sales meetings per Year as arranged by the
Company at such time and place (being alternative venues in England
and in the United States of America) as the Company may from time to
time choose;
3.1.8 on a yearly basis and in such form as the Company may reasonably
request, provide the Company with:
3.1.8.1 a written analysis of the business and marketing
conditions within the Territory with respect to the
sale of the Products;
3.1.8.2 a written estimate of its requirements for Products
for the next Year; and
3.1.8.3 a marketing plan including sales forecasts;
3.1.9 select employees and maintain facilities and premises for the
sale of the Products and maintain a business and sales organisation
adequate to work and develop sales of the Products in the Territory in
each case in line with the current practice of the BMG Partnership;
3.1.10 inform the Company of any enquiry concerning the Products by any
person, firm or company for delivery outside or export from the
Territory;
3.1.11 leave in position and not cover or erase any notices or other marks
(including without limitation notices that a trade xxxx, design or
copyright relating to the Products is owned by the Company or a third
party) which the Company may place on or affix to the Products;
3.1.12 indemnify the Company against all proceedings, costs, liabilities,
injury, loss or damage arising out of the breach or negligent
performance or failure in performance by the Distributor of the terms
of this Agreement;
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3.1.13 on receipt of at least 3 days' notice, allow the Company or its duly
authorised representative access to the Distributor's premises to
inspect the premises and facilities of the Distributor and to inspect
and take copies of or extracts from any records or other documents
relating in any way to the Products or the Distributor's activities
under this Agreement;
3.1.14 ensure that it conforms with all legislation, rules, regulations and
statutory requirements existing in the Territory from time to time in
relation to the Products. In any event, all advertisements, point of
sale promotion, merchandising and publicity material for the Products
issued by the Distributor ("the Material") shall be subject to the
prior written approval of the Company but such approval will be deemed
to have been given unless notice is given to the Distributor by the
Company within 10 days of its receipt of the Material;
3.1.15 be responsible for the obtaining of any import licenses and payment of
all customs and excise and other similar import duties that may be
required or levied with regard to any or all of the Products for the
purpose of importing the same into the Territory; and
3.1.16 maintain in the Territory adequate product liability insurance of a
type and to an extent specified in writing by the Company and
satisfactory to it and at a level acceptable by the company provided
that this amount is in accordance with common US business practices
for a business similar to that carried on hereunder by the Distributor
and comparable in relation to all relevant factors including but not
limited to the nature of the products, turnover and geographical
distribution.
3.2 The Distributor shall not, except as otherwise agreed in writing by
the Company:
3.2.1 actively seek customers, solicit orders, or establish any branch or
maintain any distribution depot, for the Products outside the
Territory;
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3.2.2 on behalf of itself, or its associate companies (if any), inside the
Territory manufacture, sell or import for resale from any person, firm
or company other than the Company any products which compete with the
Products, nor directly or indirectly be or become interested in any
such person, firm or company inside the Territory.
3.2.3 have authority to:
3.2.3.1 act as agent in any way for the Company;
3.2.3.2 represent the Company;
3.2.3.3 pledge the credit of, or make any representations,
or give any warranty on behalf of the Company; or
3.2.3.4 contract any rights and liabilities on the Company's
behalf,
and the Distributor will not in any way hold itself out as having
such authority.
3.3 The Company shall be responsible for obtaining any licences required
by the US Food and Drug Administration in respect of the manufacture of the
Products.
4. Terms of Supply
4.1 All sales of Products by the Company to the Distributor shall be made
CIF at such port as the Company shall notify to the Distributor from time to
time ("the Designated Port") in accordance with the Company's current price list
and on the Company's standard conditions of sale from time to time except as
expressly varied by this Agreement and to the extent that any of the same is
inconsistent with any provision of this Agreement, in which case the latter
shall prevail. A copy of the Company's current price list and the Company's
current standard conditions of sale from Schedules 5 and 6 to this Agreement.
The Company shall give to the Distributor notice in writing of any change in its
standard conditions of sale, not less than one month prior to such change taking
effect for the purpose of this Agreement and the Company agrees that such
changes shall not be unreasonable.
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4.2 The price to be paid by the Distributor for the Products may be
adjusted every six months by the Company it its absolute discretion (which
discretion shall not be subject to review) upon notice being given by the
Company to the Distributor provided always that:
4.2.1 the percentage increase in the price to be paid by the Distributor
in relation to any particular class of Products shall not be greater
than the percentage increase in the Company's prime cost in relation
to those Products; where "prime cost" shall mean the cost of raw
materials, labour, transport and energy incurred by the Company in
relation to that class of Products; and
4.2.2 in any event no such increase shall result in a price to be paid by
the Distributor which would give the Company a profit of greater
than 10% on the full ex factory cost.
The adjusted price will take effect for all orders for the Products
received by the Company after the expiry of sixty days from the date such notice
is given.
4.3 The acceptance of orders for the Products shall be in writing, at the
entire discretion of the Company and will normally be accepted subject to
availability of the Products. The Company shall be entitled, at its absolute
discretion, to reject any order received from the Distributor and from time to
time to extend or discontinue the range of Products or any part thereof provided
that the Company shall promptly notify the Distributor of any such acceptance,
rejection, extension or discontinuance. The Company will give the Distributor
not less than 4 months prior written notice of any discontinuance of a Product
or range of Products.
4.4 The Company shall treat the Distributor no less equitably than its
other customers, provided always that nothing in this Agreement shall require
the Company to give the Distributor any right of priority over the Company's
other distributors/customers.
4.5 All dates for delivery of the Products shall be agreed between the
parties and shall be stated in writing on the Company's acceptance of the
Distributor's order. All dates
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for delivery of the Products are given in good faith but are only estimates and
the Company shall not be liable for any failure to deliver on the date so given.
4.6 Subject only to 4.6.1 below all payments shall be made by the
Distributor in US Dollars to such bank account as the Company may from time to
time notify in writing to the Distributor within 48 days of the date of invoice
provided that the invoice date does not pre-date the date of dispatch by more
than three days.
4.6.1 By way of limited exception to the payment terms set out in 4.6
the Company will give the Distributor special payment terms in
relation to Outstanding Debts of the BMG Partnership which the
Distributor has agreed to pay to the Company in consideration for the
Company agreeing to enter into this Agreement. The Outstanding Debts
are those invoices dated 48 days or more prior to the date of this
Agreement and listed as an Outstanding Debt on Schedule 3 hereto for
the total value of $54,902.19. The Distributor agrees to make regular
payments in US Dollars to a bank account specified by the Company and
made against the specific invoices listed in Schedule 3. The
Distributor agrees that within 90 days of the date of this Agreement
it will have paid at least 80% of the total value stated in Schedule 3
and the remaining balance thereof within 180 days of the date of this
Agreement. For the avoidance of doubt this provision does not affect
in any way whatsoever the Distributor's obligations under Clause 4.6
hereof in relation to invoices dated after the date of this Agreement.
4.6.2 The Distributor will clearly identify the relevant invoice or
invoice relating to an Outstanding Debt when making any payments to
the Company in order that a proper allocation of the payment can be
made.
4.7 If the Distributor fails to pay the price for any Products within 48 days
after the date of invoice or fails to pay the Outstanding Debts in accordance
with 4.6.1 the Company shall be
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entitled (without prejudice to any other right or remedy it may have whether
under the terms of this Agreement or otherwise) to:-
4.7.1 terminate this Agreement immediately; and/or
4.7.2 charge interest on the price to the Distributor at 3% per annum
above the base rate of Barclays Bank plc, in force from time to
time, from the date the payment became due until actual payment is
made; and/or
4.7.3 cancel or suspend any further delivery to the Distributor under
any order; and/or
4.7.4 sell or otherwise dispose of any Products which are the subject of
any order by the Distributor, whether or not appropriated thereto,
and apply the proceeds of sale to the overdue payment.
4.7.5 Without prejudice to any other right or remedy which the Company may
have under the terms of this Agreement or otherwise, if the
Distributor shall fail to comply with any or all of its obligations
contained in Clause 4.6, the Company shall, on giving 10 working
days' notice of its intention to do so be entitled to take any or
all of the actions set out in sub-Clauses 4.7.1, 4.7.2, 4.7.3 and
4.7.4
4.8 the Distributor shall inspect all Products upon delivery and must notify
the Company of any missing, damaged or defective Products within 7 days (in the
case of missing products) or 28 days (in the case of damaged or defective
Products) of delivery, failing which the Company shall not be liable to the
Distributor for such damaged, missing or defective Products. In any event, the
Company's liability in respect of any Product shall be limited at the Company's
option to either replacement of the Product in question or repayment of the
price plus duties paid by the Distributor on said product. Nothing in this
clause shall exclude any liability for death or personal injury caused by the
negligence of the Company.
5. Title
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5.1 Any consignment of Products supplied to the Distributor shall remain
the property of the Company until:
5.1.1 payment in full for such consignment has been received by the Company;
and
5.1.2 The Outstanding Debts (referred to in Clause 4.6 and listed in
Schedule 3) due from the Distributor to the Company have been
paid in full,
and until such payment the Distributor shall hold such Products to the order of
the Company.
5.2 Until such time as the Company has been paid in full for the Products, the
Distributor shall ensure that the Products are stored in such a way as to be
readily identifiable as the property of the Company and easily removable by the
Company.
5.3 In the event of non-payment by the due date, the Company shall be
entitled, in addition to all other rights, to enter upon any land or premises
where the Products may for the time being be and recover possession of them. The
Company may use such steps as are reasonably necessary to enter the premises and
remove the Products.
5.4 The Products supplied by the Company shall be at the Distributor's
risk immediately, upon reaching the Designated Port (defined in Clause 4.1) and
the Distributor shall therefore insure the Products accordingly from the time
and date of delivery to the Designated Port and procure that the Company's
interest is noted on such policy of insurance.
5.5 The Company may maintain an action for the price of the Products
notwithstanding that property in the Products may not have passed to the
Distributor.
6. Sales and Marketing
6.1 The Distributor shall use in relation to the Products only such
advertising, promotional and selling materials as are provided by or approved or
deemed to be approved in writing by the Company in accordance with provisions
referred to in clause 3.1.14 of this Agreement.
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6.2 These provisions are without prejudice to those relating to sales and
marketing contained in other clauses of this Agreement.
7. Targets
7.1 The Distributor shall purchase Products during each of the first 3
Years of this Agreement having at least the aggregate volume indicated in
Schedule 4 as the minimum for each of such Years. For the purpose of this
sub-clause and Schedule 4, the minimum aggregate volume of the Products shall be
the invoiced volume of the Products. After the initial 3 Years, the minimum
aggregate volume for each following year shall be reassessed by the parties on
an annual basis. Failure to agree on each new minimum aggregate volume no later
than 3 months before commencement of the following Year shall result in the
minimum aggregate volume for such following Year being the amount representing
an increase of 5% per annum of the minimum aggregate volume of the previous
Year.
7.2 The Distributor acknowledges that the figure in column 2 of Schedule 3
is a reasonable estimate of the minimum aggregate volume of the Products which
the Company can expect to sell to the Distributor in a particular Year.
7.3 If in any Year of this Agreement the aggregate volume of the Products
sold by the Company to the Distributor falls short of the agreed minimum
aggregate volume for the Year in question, then unless the Distributor pays a
sum equal to the Company's overhead and profit margin (to be determined by the
Company acting reasonably) in respect of such shortfall to the Company within 14
days after the end of that Year the Company shall be entitled in its absolute
discretion (which discretion shall not be subject to review):-
7.3.1 to terminate this Agreement on notice in writing to the
Distributor; or
7.3.2 to appoint another distributor in the Territory to sell the Products
or itself to sell Products in the Territory.
PROVIDED THAT such shortfall was not a result of the Company not having provided
the Products to the Distributor due to reasons outside the ordinary course of
business including but
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not limited to taking account of the volume of orders made by the BMG
Partnership over the six months prior to the date of this Agreement.
8. Intellectual Property
8.1 The Company hereby grants and the Distributor hereby accepts a
non-exclusive license to use the name "Wisdom Toothbrush Company" (the "Name")
as a fictitious business name (but not as its official corporate name) in the
Territory in connection with Marketing, distribution and sale of the Products.
In connection with such license, the Distributor shall have the right to
register a fictitious business name incorporating the Name with any business
names register in the Territory. The Distributor shall not use the Name or a
confusingly similar name in connection with any goods or services other than the
Products. All rights in the Name shall remain at all times the sole property of
the Company and all use of the Name shall inure to the benefit of the Company.
The rights granted relative to the Name in this Clause shall terminate
automatically with the termination or expiration of this Agreement. Upon such
termination or expiration, the Distributor shall immediately cease using the
Name (or any other name that is confusingly similar to the Name). Without
limiting the generality of the foregoing, upon such termination or expiration,
the Distributor shall make whatever filings are necessary to withdraw use of the
Name as a fictitious business name with any business names register. Also, upon
such termination or expiration, the Distributor shall immediately destroy any of
its stationery, signs or other printed material that make reference to the Name.
The Distributor hereby irrevocably constitutes and appoints the
Company to be its true and lawful attorney-in-fact for it and in its name, place
and stead, to have the power to perform any act that it might perform that is
necessary, convenient or appropriate to comply with the provisions of this
Clause, including, without limitation, the power to execute, seal, acknowledge,
file or record any paper or document with any business name register to withdraw
the Distributor's use of the Name upon the termination or expiration of this
Agreement.
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8.2 The Distributor acknowledges that it has no rights and will obtain no
rights in the Intellectual Property Rights belonging to the Company (or any
goodwill associated with such rights) other than as may be necessary to fulfil
its obligations under this Agreement.
8.3 The Distributor shall promptly notify the Company of any actual,
threatened or suspected infringement in the Territory of any Intellectual
Property Rights which come to the Distributor's notice, and of any claim by any
third party so coming to its notice that the importation of the Products into
the Territory, or their sale therein, infringes any rights of any other person,
and the Distributor shall at the request and expense of the Company do all such
things as may be reasonably required to assist the Company in taking or
resisting any proceedings in relation to any such infringement of claim.
8.4 The parties will discuss and may consider entering into a
manufacturing and trade xxxx licence agreement in respect of moulds for certain
Products. Any agreement on this will be the subject of a separate written
agreement between the parties.
9. Confidentiality
Each party shall at all times both during and after the term of this
Agreement use its best endeavours to keep the Confidential Information
confidential and not to disclose it to any other person and shall not use any
Confidential Information for any purpose other than the performance of its
obligations under this Agreement provided that this restriction shall not extend
to any Confidential Information which:-
9.1 that party is required to disclose to any governmental or other
authority or regulatory body;
9.2 is at the date of this Agreement or becomes hereafter, public
knowledge through no fault of that party; or
9.3 can be shown by that party ("Recipient"), to the reasonable
satisfaction of the other party ("Disclosing Party") to have been known to the
Recipient prior to its being disclosed to the Recipient by the Disclosing Party.
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10. Termination
10.1 Without prejudice to the rights of either party existing on
termination, this Agreement may be terminated at any time after the expiry of
three years from the date of this Agreement by either party giving to the other
not less than twelve months prior notice in writing, such notice being given no
earlier than the second anniversary of this Agreement and to take effect no
earlier than the third anniversary of this Agreement.
10.2 Notwithstanding the provision of Clause 10.1, the Company may by
notice to the Distributor terminate this Agreement immediately upon the
happening of any one of the following events:-
10.2.1 if the Distributor commits any irremediable serious breach of any
provision of this Agreement, including but not limited to a failure
to pay the price for any Products in accordance with Clause 4.6 or
4.7 or a failure to achieve the minimum aggregate volume set out in
Schedule 4 and in accordance with Clause 7;
10.2.2 if the Distributor commits any remediable breach of any provision of
this Agreement and fails to remedy such breach within a period of 30
days from the service on it of a notice specifying the breach and
requiring it to be remedied;
10.2.3 if the Distributor or any of its officers, directors or
shareholders acts in a manner likely to cause damage to the
reputation of the Company or the Wisdom brand; or
10.2.4 if the Distributor ceases to carry on business, becomes insolvent,
has a receiver, administrative receiver or manager appointed over
the whole or any part of its assets, enters into any composition
with creditors generally, or has an order made or resolution passed
for it to be wound up (otherwise than in furtherance of any scheme
for amalgamation or reconstruction) or undergoes any similar or
equivalent process in any jurisdiction.
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10.3 Notwithstanding the provision of Clause 10.1, the Distributor may by notice
to the Company terminate this Agreement immediately upon the happening of any
one of the following events:-
10.3.1 if the Company commits any irremediable serious breach of any
provision of this Agreement;
10.3.2 if the Company commits any remediable breach of any provision of
this Agreement and fails to remedy such breach within a period of 30
days from the service on it of a notice specifying the breach and
requiring it to be remedied;
10.3.3 if the Company ceases to carry on business, becomes insolvent, has a
receiver, administrative receiver or manager appointed over the
whole or any part of its assets, enters into any composition with
creditors generally, or has an order made or resolution passed for
it to be wound up (otherwise than in furtherance of any scheme for
amalgamation or reconstruction) or undergoes any similar or
equivalent process in any jurisdiction.
10.4 Any termination of this Agreement shall be without prejudice to any rights
accrued in favour of either party in respect of any breach committed by the
other prior to the date of such termination.
11. Consequences of Termination
11.1 upon termination of this Agreement for any cause whatsoever:-
11.1.1 the Distributor shall cease all sales and other activities on
behalf of the Company save to the extent required by sub-Clause
11.1.2;
11.1.2 the Company shall be entitled (but shall not be obliged) to
repurchase from the Distributor, at the price paid by the
Distributor for those Products, all stocks of the Products which
have been paid for by the Distributor but which remain in the
ownership and under the control of the Company at that date. In the
event
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that the Company selects not to repurchase such stocks, the
Distributor shall be entitled to dispose of such stocks in the
ordinary course of business;
11.1.3 the Distributor shall at its own expense forthwith dispose of in
accordance with the directions of the Company all samples of the
Products; any advertising, promotional or sales material relating to
the Products then in the possession of the Distributor that have
been provided by the Company; and all Confidential Information in
whatever form;
11.1.4 outstanding unpaid invoices rendered by the Company in respect of
the Products shall become immediately payable by the Distributor and
invoices in respect of Products ordered prior to termination but for
which an invoice has not been submitted shall be payable immediately
upon submission of the invoice;
11.1.5 the Distributor shall cease forthwith to use the Company's name
or to promote, market or advertise the Products or to make any
use of the Intellectual Property Rights; and
11.1.6 the Distributor shall inform its customers for the Products that
this Agreement has been terminated and shall supply to such
customers the name and address of any new distributor appointed by
the Company for the Territory. In addition, the Distributor shall
send to the Company the Distributor's current customer mailing list
in respect of the Products.
11.2 Termination or expiry of this Agreement (for whatever reason) shall not
entitle the Distributor to any compensation or indemnity in respect of such
termination or expiry except to the extent that the governing law of this
Agreement provides for such compensation or indemnity.
11.3 Notwithstanding the expiration or the determination of this Agreement under
any of its provisions, all the provisions of this Agreement which are expressed
to have effect on and/or after the expiration or determination of this Agreement
(including, without limitation, the
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obligations of the Distributor in Clause 9) shall survive the expiration or
the determination of this Agreement and shall be deemed to remain in full
force and effect.
12. Force Majeure
12.1 If either party to this Agreement is prevented or delayed in the
performance of any of its obligations under this Agreement by force majeure (as
defined below), the party in question shall serve on the other party notice in
writing to such effect and be excused the performance or the punctual
performance, as the case may be, of its obligations under this Agreement as from
the date of such notice for so long as such cause of prevention or delay shall
continue.
12.2 For the purpose of this Agreement "force majeure" shall be deemed to
be any cause affecting the performance of this Agreement arising from or
attribution to acts, events, omissions or accidents beyond the reasonable
control of the party to perform and, without limiting the generality thereof,
shall include strikes, lock-outs or other industrial action, civil disturbances
or war, fire, storm, or other natural disaster, impossibility of the use of any
means of public or private transport or any action of any governmental or other
regulatory authority rendering impossible performance by either party of its
obligations under this Agreement.
13. Assignment
This Agreement shall be personal to the Distributors and the
Distributor shall not assign, transfer, charge or part with any of its rights
under this Agreement to any third party or associated company, nor shall it
dispose of any of its rights hereunder or sub-contract or otherwise delegate any
of its obligations in relation to such rights.
14. Severability
Except in so far as the context otherwise requires, each provision
herein shall be construed as independent of every other provision, and if any
provision hereof is or
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becomes partially or totally invalid or unenforceable then the validity and
enforceability of the remaining provisions shall not be affected.
15. Entire Agreement
This Agreement constitutes the whole agreement and understanding
between the parties with respect to the subject matter of this Agreement and
supersedes all prior discussions and agreements (whether oral or written)
between the parties and/or their agents or advisers.
16. Variations
No amendments to the Agreement shall be effective unless and until
made in writing and signed by both parties or their duly authorised
representatives.
17. Waiver
A failure by either party to exercise or enforce any right conferred
upon it by this Agreement shall not be deemed to be a waiver of such right or
operate so as to bar the exercise of enforcement thereof at any subsequent time
or times
18. Notices
18.1 Any notice to be given under this Agreement shall be given by
delivering the same personally or by sending the same by registered post or by
facsimile or electronic mail transmission to the address of the other party set
out on page 1 of this Agreement or to such other address as may be notified by
that other for this purpose to the party seeking to give such notice.
18.2 Any notice given pursuant to Clause 18.1 shall be deemed when sent by
registered post (and in the absence of evidence of earlier receipt) to be
delivered 7 days after despatch and shall be deemed when sent by facsimile or
electronic mail transmission to be delivered on the day of transmission provided
that the party giving the notice proves that the registered envelope containing
the notice was correctly addressed or proves the date, time and correct number
of the facsimile transmission.
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19. Other Provisions
19.1 Nothing in this Agreement shall be taken to constitute a
partnership or the relationship of employer and employee between the parties
hereto
19.2 If one or more of the terms of this Agreement is found to be
unenforceable in whole or in part, the finding thereof shall not affect the
validity of the remaining terms of this Agreement in any way.
20. Governing Law and Jurisdiction
The validity and performance of this Agreement shall be governed in
accordance with the laws of England and the parties hereby submit to the
non-exclusive jurisdiction of the English Courts.
The Parties or their duly authorised representatives have executed
this Agreement on the date shown at its head.
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SIGNED by ) /s/ X. Xxxxxxx
for and on behalf of WISDOM )
TOOTHBRUSHES LIMITED in the )
presence of:-
Signature: /s/ J. Xxxxx Xxxxxxxxxx
Name: J. Xxxxx Xxxxxxxxxx
Address: Daisy's Reor Road, Winestead
Bury St. Edmunds, Suffolk
Occupation: Accountant
SIGNED by (/s/ Xxxx Xxxxxx) )
for and on behalf of )
SAGACITY I, Inc. in the )
presence of:- )
Signature: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Address: 0000 Xxxx Xxx.
Xxxxxxxx, Xx 00000
Occupation Sales
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