PARTIES
1. 1. Loft Crag Ltd (“FN2G & Fingernails2Go”) whose registered office is at St. Mary’s,
The Parade, Castletown IM9 1LG Isle of Man and is registered as a limited company
in the Isle of Man with company number 009688V.
2. 2. The Customer and signatory of the Purchase Order to which this Agreement is
attached.
RECITALS
A.
Loft Crag Ltd is the exclusive manufacturer and distributor of the FN2G Digital Nail Art
Kiosk (“Product”) and has the worldwide exclusive right to import, supply and service
the Product.
B.
The customer (“Customer”) specified in this Agreement has agreed to purchase one or
more of the Product and Loft Crag Ltd has agreed to sell the Product to the Customer
on the terms and conditions of this Agreement.
NOW THIS AGREEMENT WITNESSES as follows:
1
DEFINITIONS & INTERPRETATION
In this Agreement and any document referred to in it, "we", "us" or "our" means Loft Crag Ltd
and "you" or "your" means the Customer and unless the context otherwise requires the
following terms have the following meanings:
"1 Year Warranty" has the meaning given to that term in clause 7.1.
Agreement" means this document setting out the rights and obligations of the Parties in relation
to the supply and servicing of the Product and Consumables and includes any purchase order
for the Product or Consumables.
"Appointed Territory” has the meaning given to that term in clause 3.2.
"Business Day" means a day on which banks are generally open for business in the UK other
than a Saturday, Sunday or public holiday.
"Business Hours" means 9am to 5pm on a Business Day.
"Consumables" means the ink cartridges, ink and any other components of the Product that, in
the course of ordinary use of the Product will require replenishment or replacement.
“Destination Port” means the destination port for the Products or Consumables as specified in
the relevant purchase order.
“Distributor” means any natural or legal person granted an exclusive licence by the Supplier to
import, sell or otherwise market the Product within an Appointed Territory.
"Improvements" means any enhancements or modifications made by or on behalf of us in
relation to the Product or Consumables.
"Insolvency Event" means, in relation to a party:
a)
a liquidator, provisional liquidator, administrator, receiver or trustee is appointed in
relation to any of the property or assets of that party or any action is taken for such
appointment; or
b)
an application is made to wind up that party, or an order is made that that party be
wound up; or
c)
that party enters into any composition or arrangement with its creditors; or
d)
that party is, or is deemed to be, insolvent or bankrupt under the applicable law of the
jurisdiction in which that party is incorporated or resides or the applicable law of such
other jurisdiction to which that party is subject.
“Intellectual Property Rights" means any industrial and intellectual property rights throughout
the world and for the duration of the rights and all renewals and extensions (whether registered
or unregistered) including patents, trademarks, design rights, copyright, trade secrets,
business names, get up, the right to apply for the registration of such rights and any other
similar or analogous rights and any intellectual or industrial rights whether now existing or
which come into existence in the future.
"Know-How" means all inventions, ideas, patents, formulation
and compositions,
manufacturing processes, methodologies and techniques, designs, productions, applications,
scientific, technical, technological, business and marketing information, modifications,
developments, know how, trade secrets, proprietary information and all other information
relating in any manner to the Product, Consumables or Improvements.
"Non-Excludable Condition" has the meaning given to that term in clause 7.6.
"Preferred Servicers" has the meaning given to that term in clause 7.5.
"Product" has the meaning given to that term in paragraphs A of the Recitals.
“Purchase Order” means a written confirmation of a quantity of Product or Consumables or
other item or service that the Customer has agreed to buy from the Supplier.
"Regulatory Authority" means:
a)
any government or local authority and any department , ministry or agency of any
government; and
b)
any other authority, agency, commission or similar entity having powers or
jurisdiction under any law or regulation or the listing rules of any recognised stock or
securities exchange.
References to the singular include references to the plural.
2
CUSTOMER’S AUTHORITY
2.1
The person, natural or legal, who submits the Purchase Order to which this
Agreement applies warrants that it is either;
a)
the Customer or
b)
is authorised to accept and is accepting this Agreement not only personally
but for and on behalf of the Customer.
2.2
You must not assign or transfer any of your rights or obligations under this
Agreement without our prior written consent.
3
ACCEPTANCE OF PRODUCTS
3.1
A Products and Consumables supplies to you are supplied on the basis of this
Agreement, and any order for Products or Consumables by you constitutes
acceptance of the terms and conditions of this Agreement by you.
3.2
You agree and acknowledge that we have appointed (or may appoint) Distributors
to distribute the Products on an exclusive basis in various countries and territories
(“Appointed Territories”). You must not sell, re-sell or otherwise re-supply any of
the Products or Consumables to any person in, or supply any of the Products or
Consumables to any person who intends to sell or you believe is likely to sell
(whether by itself or through a third party) the Products or Consumables in, any
Appointed Territory that we notify you of without the prior written consent of us.
3.3
You agree and acknowledge that the Products are designed for use with
Consumables or other items supplied by and purchased from us. You agree to
purchase all Consumables from us and you must not use any Consumable, other
than Consumables purchased from us with or in the Products.
3.4
You agree and acknowledge that non-compliance with clause 3.3 renders any
warranty under this Agreement including the 1 Year Warranty void.
3.5
You must not modify (or permit to be modified) the Products or Consumables in
any way without our prior written consent.
3.6
You agree and acknowledge that non-compliance with clause 3.5 renders any
warranty under this Agreement including the 1 Year Warranty void.
4
PURCHASE PRICE AND PAYMENT
4.1
The purchase prices for the Products and Consumables are as advised by us in
writing and we may vary said purchase prices at our sole discretion from time to
time.
4.2
Unless otherwise stated, all prices are in Sterling.
4.3
Unless we agree otherwise in writing, 50% of the total value of the Purchase Order
must be transferred to us within 3 Business Days of the completed Purchase
Order being returned to us.
4.4
4.5
4.6
5
5.1
5.2
5.3
6
6.1
6.2
6.3
6.4
6.5
7
7.1
7.2
7.3
7.4
7.5
8
8.1
8.2
8.3
9
9.1
9.2
9.3
9.4
9.5
Unless we agree otherwise in writing, the remaining 50% of the total value of the
Purchase Order must be transferred to and received by us before we deliver or
procure delivery of the Purchase Order.
You must make all payments in accordance with the terms of our invoice.
We reserve the right to decline any Purchase Order at our sole discretion.
DELIVERY, RISK AND TITLE
Delivery is directly from the place of manufacture to a delivery address provided
by you on the Purchase Order. Delivery occurs when the Products or
Consumables leave the place of manufacture.
Title to any Product or Consumables and risk passes from us to you on our receipt
of all payments due under the total value of the Purchase Order in accordance
with clause 4.
We will use our best endeavours to meet any quoted delivery dates but shall not
accept any liability whatsoever for failure to do so. Failure to meet a delivery date
will not prejudice any agreements as regards to other deliveries.
TECHNICAL TRAINING AND MARKETING
We will provide you with our standard training in respect of the Product.
We will provide you with an operating manual in respect of the Product.
We will provide you with such marketing and promotional materials for the Product
as may be deemed necessary by us.
You agree and acknowledge that you do not acquire any title or interest
(including any Intellectual Property Rights) in or to any materials whatsoever
provided to you under this clause 6 (including any content, artwork, logos,
trademarks or otherwise in such materials).
You shall only undertake any advertising, promotion or trade practice after
submitting to us for review the material and method of the advertising, promotion
or trade practice and the receipt of our written consent thereafter to undertake any
advertising, promotion or trade practice in the terms of that written consent.
WARRANTY AND SERVICING
Subject to clause 7.4 we warrant that the Products will be free of defects in
material and workmanship for a period of one year from the date of delivery under
clause 5.1 (“1 Year Warranty”).
For the duration of the 1 Year Warranty period, we will repair (or if it cannot be
repaired, replace), at our cost, any defective Product or defective part of the
Product. For minor technical issues with the Products, free technical telephone
assistance will be provided to you.
The 1 Year Warranty only covers defects in material or workmanship that occur
during normal use of the Products. Without limiting the foregoing, the 1 Year
Warranty does not cover failures or damage which result from failure to replace
the ink cartridge every 3 months with an ink cartridge purchased from us,
accident, misuse, abuse, theft, vandalism, neglect, negligence, mishandling,
faulty installation, misapplication, improper insertion of Consumables, set-up
adjustments, maladjustment of controls, improper operation or maintenance,
alteration, modification, power line surge, improper voltage supply, service by
anyone other than a Preferred Servicer, damage attributable to acts of God, or
any act or omission of you or your employees, officers, agents, contractors or joint
venturers which is in breach of Agreement.
In order to ensure proper and effective operation of the Product, we will from time
to time advise you of our Preferred Servicers of the Product. You may procure
servicers other than the Preferred Servicers to service or repair the Products
outside the 1 Year Warranty period or any extended warranty purchased from us
entirely at your own risk and we shall accept no liability in respect of the
procurement of servicers other than Preferred Servicers.
Except as expressly provided in this Agreement and except for any condition or
warranty the exclusion of which could be void or otherwise contravene any
applicable competition or consumer law ("Non Excludable Condition"), we
disclaim all warranties and representations, either express or implied, with
respect to the Products, Consumables, Intellectual Property Rights and other
goods or services we supply.
COMPLIANCE, GOODWILL AND REPUTATION
You must conduct your business in compliance with all applicable laws and must
not, yourself or with others participate in any illegal, deceptive, misleading or
unethical advertising or other practices that are or might be detrimental to us, our
affiliates, our products (including the Products) or the public.
Without limiting the generality of clause 8.1 and any other obligation of you in this
Agreement, you shall
a)
not (and shall ensure that your employees, officers, agents, contractors or joint
venturers do not engage in any conduct which, in our reasonable opinion,
damages our name or reputation, or that of our affiliates or the Product;
b)
comply fully with all laws, statutes, regulations, rules, ordinances, standards,
by-laws and orders of any Regulatory Authority relating to the use, distribution
or sale of the Product;
c)
comply with our directions regarding the Product;
d)
secure and maintain in full force and effect, at your cost and expense, any
licences, permits and authorisations required from time to time to enable this
Agreement lawfully to be made and carried out according to its terms and
conditions
You shall notify us of any complaint, claim or criticism made by any user of the
Product as soon as possible after you become aware of such complaint, claim or
criticism. You shall take all steps as we reasonably require to resolve any such
complaint, claim or criticism, including by making ex-gratia payments.
INTELLECTUAL PROPERTY RIGHTS
You acknowledge that we are the owner or licensee of all the Intellectual
Property Rights.
Other than as expressly set out in this Agreement, nothing in this Agreement
grants or transfers any rights, title or interest in or to the Intellectual Property
Rights to you, and you shall not represent that you have any right in any
Intellectual Property Rights.
You shall not (and shall ensure that your affiliates, and your employees, officers,
agents and contractors do not) copy, alter, modify, reproduce, translate,
decompile, reverse assemble or reverse engineer any part of the Products,
Consumables or Intellectual Property Rights, or directly or indirectly allow anyone
else to do so.
You shall:
a)
keep us fully informed of all suspected or actual infringements by any person of
the Intellectual Property Rights that come to your knowledge; and
b)
provide all assistance (at our cost) reasonably requested by us in connection
with such claim; and
If you become aware that a claim has been made that your or our use of any
Intellectual Property Rights infringes the rights of any other person, you must
a)
notify us of such claim immediately;
b)
provide all assistance (at our cost) reasonably requested by us in connection
with such claim; and
c)
not make any comment or admission to any third party or admit liability or settle
the matter in respect of such claim without our prior written consent.
Name:
Position:
Signature:
9.6
9.7
10
10.1
10.2
10.3
11
11.1
12
12.1
13
13.1
13.2
14
14.1
15
15.1
16
16.1
16.2
16.3
16.4
16.5
16.6
We will have the conduct of all proceedings relating to the Intellectual Property
Rights and will, in our sole discretion, decide what action (including litigation,
arbitration or compromise), if any, to take in respect of any infringement or alleged
infringement of the Intellectual Property Rights or any claim or counterclaim
brought or threatened in respect of the use of the Intellectual Property Rights.
We are not obliged to maintain the registration of any Intellectual Property Rights
or bring or defend any proceedings whether for infringement or otherwise in
relation to the Intellectual Property Rights if we decide in our sole discretion not to
do so.
CUSTOMER WARRANTIES
You warrant that:
a)
you have full power and authority to enter into and perform your obligations
under this Agreement, and
b)
your obligations under this Agreement are valid and binding and are
enforceable against you in accordance with its terms; and
c)
the execution, delivery and performance of this Agreement does not violate
your constitution (if applicable), any existing law, or any document or
agreement to which you are a party or which is binding upon you or any of your
assets; and
d)
you have all licences, permits and authorities of any kind necessary to
promote, sell and distribute the Products in accordance with this Agreement;
and
e)
no Insolvency Event has occurred in relation to you; and
f)
you enter into this Agreement solely as a result of your own investigations,
enquires, advice and knowledge and do not rely on any representations or
warranties made by us (or our employees, officers or agents) which are not
expressly set out in this Agreement.
You, your affiliates, or any of your and their employees, officers, agents,
contractors or joint venturers indemnify us, our affiliates, and each of its
employees, officers, agents and contractors (each an "Indemnified Person") and
will keep each Indemnified Person indemnified on demand from and against all
actions, claims, demands, losses, damages and expenses of whatever form or
nature, including legal fees and or other costs and disbursements that an
Indemnified Person sustains or incurs as a result of or in connection with:
a)
any negligent or fraudulent act or omission or wilful misconduct;
b)
any breach of this Agreement by you;
c)
any breach of the warranties in clause 10.1;
d)
any breach of any law, statute, regulation, rule, ordinance, standard, by-law or
order of any Regulatory Authority;
e)
any damage to any property, or injury or death to any person, to the extent
caused or contributed to by the acts and/or omissions of you, your affiliates, or
any of your or their employees, officers, agents, contractors or joint venturers;
f)
any use of any Product, Consumable or Intellectual Property Rights other than
in accordance with this Agreement.
We hold the benefit of clause 10.2 on trust for each Indemnified Person.
EXCLUSION AND LIMITATION OF LIABILITY
Notwithstanding any other provision of this Agreement and including where
legislation implies into this agreement any Non Excludable Condition, to the fullest
extent permitted by applicable law:
a)
our liability to you for any and all action, claim, demand, loss, damage and/or
expense arising out of or in connection with this Agreement will be limited at
our sole discretion to one or more of the following:
a.
the replacement of the Product or supply of equivalent
Product;
b.
the repair of the Product;
c.
the payment of the cost of replacing the Product;
d.
payment of the cost of having the Product repaired.
b)
in no event will we be liable for any indirect loss, or consequential loss, loss of
profits, loss of revenue, loss of goodwill, exemplary damages, punitive
damages, or special damages in connection with or arising out of this
Agreement; and
c)
in no event will our liability to you for any action, claim, demand, loss, damage
and/or expense arising out of or in connection with this Agreement exceed the
amount of the purchase price for the Products paid by you under this
Agreement in the previous 12 months.
INSURANCE
You must, at your cost and expense, effect and maintain with a reputable insurer
comprehensive insurance including but not limited to public and products liability
insurance for an amount of not less than STG (20,000,000) for any one claim
(unless we advise you of another amount in writing) in relation to the Product and
your liabilities under this Agreement and any loss or damage to any Product
whilst in your possession, custody or control. You must show us evidence of such
policy upon our request.
CONFIDENTIAL INFORMATION
All terms and conditions in respect of our business relationship and any other
information we provide to you is our confidential information except where such
information is in the public domain. You must treat as confidential and not directly
or indirectly make any disclosure to any third party or use the confidential
information in any way (other than those necessary for you to carry out the terms
of this agreement) without our prior written consent.
Upon request you must return to us any copies of our confidential information in
your possession in whatever medium to us or confirm in writing that they have
been destroyed.
YOUR RELATIONSHIP WITH US
You are an independent contractor to us. You are not our employee or agent. You
must not make any representations on our behalf, or enter into any commitments,
agreement, contract, arrangement, or understanding on our behalf.
NOTICES
Any notice to be given under this Agreement will be in writing.
GENERAL
We may deduct any money you owe to us on any account whatsoever from any
money which we may be liable to pay to you.
Notwithstanding any other provision in this Agreement, if there are any
inconsistencies between any or all of this Agreement, a purchase order, your
invoice or terms, or any record of any other agreement you may have with us, the
provisions of this Agreement prevail to the extent of the inconsistency.
A single or partial exercise or waiver by a party of a right relating to this Agreement
does not prevent any other exercise of that right or the exercise of any other right
and a party is not liable for any loss, cost or expense of any other party caused or
contributed to by the waiver, exercise, attempted exercise, failure to exercise or
delay in the exercise of a right.
You acknowledge that we have entered into this Agreement and supply of the
Product and Consumables to you is on reliance upon the warranties you have
made.
If the whole or any part of a provision of this Agreement is invalid or
unenforceable in a jurisdiction it must, if possible, be read down for the purposes
of that jurisdiction so as to be valid and enforceable. If however, the whole or any
part of a provision of this Agreement is not capable of being read down, it is
severed to the extent of the invalidity or unenforceability without affecting the
remaining provisions of this Agreement or affecting the validity or enforceability of
that provision in any other jurisdiction.
Any indemnity or obligation of confidentiality in this Agreement is independent and
survives termination of this Agreement. Any other term which by its nature is
16.7
16.8
16.9
16.10
16.11
intended to survive termination of this Agreement survives termination of this
Agreement.
Our rights provided in this Agreement are cumulative with and not exclusive of our
rights, powers or remedies provided by law independently of this Agreement.
Any variation or modification which you propose to make to this Agreement will
have no force and effect unless our prior written consent to such amendment is
first obtained.
This Agreement constitutes the entire agreement between the parties in relation to
its subject matter. All previous negotiations, explanations, understandings,
representations, warranties, memoranda, commitments or information provided in
relation to, or in any way affecting, the subject matter of this Agreement are
merged in and superseded by this Agreement and will be of no force or effect
whatsoever and no party will be liable to any other party in respect of those
matters.
This Agreement is governed by the laws of England and you are deemed to have
submitted to the jurisdiction of the courts of England.
The United Nations Convention on Contracts for the International Sale of Goods
does not apply to this Agreement or any transactions contemplated by this
Agreement.
Name:
Position:
Signature: