Terms of service

STOCKIST AGREEMENT

CONTRACT DETAILS

DATE:  18 May 2023

Supplier:

Vintiquities Limited (Company Number 09025388) trading as “Frenchic Paint”

Supplier’s registered office:

1 Chamberlain Square Cs, Birmingham, B3 3AX.

Stockist:

Appointed by the Supplier to market, purchase, distribute and resell the Products.

Effective Date:

24 May 2023

Products:

Paint and paint accessories as purchased by the Stockist from the Supplier from time to time

Territory:

The area of exclusivity for each Stockist to distribute and resell Products, shall be five miles from another Frenchic stockist from the Stockist’s place of business (which is the full address provided by the Stockist on registration/appointment), unless agreed otherwise in writing between the parties. For the avoidance of doubt, the Territory may vary (at the sole discretion of the Supplier) in certain areas of high population, including but not limited to, inner city locations.

Term:

Rolling contract, subject to clause 13.

Schedules:

Schedule 1: Mandatory Policies

Schedule 2: Supplier's Terms and Conditions of Sale

Schedule 3: Prices

Schedule 4: Trademarks

Schedule 5: Minimum Quantity

Schedule 6: Starter Pack

 

 

CONDITIONS

  1. Definitions

    The following definitions apply in this Contract.
  •  Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
  • Business Hours:  the period from 9.00 am to 5.00 pm on any Business Day.
  • Conditions: these terms and conditions.
  • Contract: this contract under which the Supplier appoints the Stockist as its exclusiveStockist, in accordance with the Contract Details, these Conditions, the Mandatory Policies and the Schedules.
  • Effective Date: the date the Contract takes effect, as set out in the Contract Details.
  • Mandatory Policies:the Supplier's mandatory policies and procedures listed in Schedule 1, as amended by notification to the Stockist from time to time.
  • Minimum Quantity:  in relation to each month, the aggregate value of Products (being thenet amount of purchases made, less deductions for purchase discounts, returns and allowances) to be ordered by the Stockist from the Supplier as specified in Schedule 5, and amended by the Supplier from time to time. Unless otherwise agreed in writing between the Supplier and the Stockist.
  • Products: the products of the type and specification manufactured and sold by the Supplier and described in the Contract Details together with any other products by the Supplier and which the Supplier may appoint the Stockist, by express notice in writing, to distribute in the Territory but excluding any products which the Supplier ceases to manufacture or distribute.
  •  Supplier's Terms and Conditions of Sale:the Supplier's terms and conditions of sale as set out in Schedule 2,as amended or revised from time to time.
  • Term: the term of this Contract, as determined in accordance with clause 13.
  • Territory: the areas specified in the Contract Details.
  • Trade Marks: the trade marks as set out in Schedule 4 that the Supplier permits or procures permission for, the Stockist to use in the Territory in respect of the Products.
  • VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
  • Year: the period of 12 months from the Effective Date and each consecutive period of 12 months thereafter during the period of this Contract.
  1. Appointment

2.1           Appointment. The Supplier appoints the Stockist as its exclusivestockist to market, purchase, distribute and resell the Products as a Stockist in the Territory on the terms of this Contract, and the Stockist accepts the appointment on those terms.

2.2           Exclusive appointment.Notwithstanding the exclusive appointment of the Stockist in the Territory, the Supplier itself shall be free tosupply any Products directly in the Territory.

2.3           Restrictions on the Stockist. The Stockist shall not:

(a)        (for the shorter of (i) the Term; and (ii) a period of five years) distribute any products which compete with the Products without the prior written consent of the Supplier;

(b)        represent itself as an agent of the Supplier for any purpose;

(c)        pledge the Supplier's credit;

(d)        give any condition or warranty on the Supplier's behalf;

(e)        make any representation on the Supplier's behalf;

(f)          commit the Supplier to any contracts;

(g)        otherwise incur any liability for or on behalf of the Supplier; or

(h)        without the Supplier's written consent, make any promises or guarantees about the Products beyond those contained in any promotional material supplied by the Supplier or as set out on the Supplier’s website and/orProduct labels.

3. Stockist's undertakings

3.1           Minimum Quantity. The Stockist shall place orders for the Minimum Quantity, as amended by the Supplier from time to time. The failure to achieve such targets will give the Supplier the right to terminate this Contract under Clause 13.3.

3.2           Sales and other reports. The Stockist shall provide information relating to the performance of its obligations under this Contract that the Supplier may reasonably require from time to time.

3.3           Maintenance of stock. The Stockist shall maintain, on its own account, suitable amount of the Products so that it can supply all orders (as far as is reasonably possible) for Products received by it without delay.

3.4           Storage. The Stockist shall keep all stocks of the Products that it holds in conditions appropriate for their storage, and provide appropriate security for the Products, all at its own cost.

3.5           Cost of returns. The Stockist shall bear the cost of all returns from customers relating to the Products except in respect of Products which the Supplier is obliged to replace due to a proven defect in accordance with its warranty obligations in Schedule 2, the Supplier's Terms and Condition of Sale(for the avoidance of doubt,Product packaging that has been damaged during transit shall not be considered defective for the purposes of this clause, clause 12.2 or Schedule 2).

  1. Supply of products

4.1           Obligation to meet the Stockist's orders. The Supplier shall use its reasonable endeavours to meet all orders for the Products forwarded to it by the Stockist as soon as practicable, but the Supplier may, at its discretion, prevent the Stockist ordering Products and/or refuse any order that it reasonably considers it would be impracticable to attempt to meet. The Stockist acknowledges that the Supplier may supply other distributors, stockists or customers in priority to the Stockist.

4.2           No appointment of other Stockists within the Territory. The Supplier shall not appoint other stockists other than the Stockist within the Territory,subject to clause 13 (Duration and Termination) and 14 (Consequences of Termination).

4.3           Changes to Product.The Supplier may vary the Products or excludeand/or add one or more Products from and/or to this Contract and make changes to the specifications of the Products where required, at its sole discretion.

4.4           Online Market Platforms. The Supplier may at any time during the Term of this Contract (at its sole discretion) preclude the Stockist on a minimum of thirty (30) days written notice from selling Products via third party online market platforms. Nothing shall preclude the Stockist from selling the Products on its own website.

  1. Supplier's obligation to provide information and support

The Supplier shall provide the Stockist with such information and support as the Supplier, in its sole discretion, considers appropriate to enable the Stockist to discharge its duties under this Contract properly and efficiently.

  1. Prices and payment

6.1           Prices. The price to be paid by the Stockist to the Supplier for the Products shall be: (a) as of the Effective Date, the Supplier's list pricesas set out in Schedule 3; and (b) thereafter, the Supplier's list prices as notified to the Stockist by the Supplier from time to time.The Suppler may recommend retail prices for the Productsto the Stockist, however the Stockist is under no obligation to adhere to this recommendation in selling the Products.

6.2           Prices exclusive of VATor any equivalent tax chargeable elsewhere. All sums payable under this Contract, or otherwise payable by any party to any other party under this Contract, are exclusive of any VAT chargeable or any equivalent tax chargeable elsewhere on the supplies for which such sums (or any part of them) are the whole or part of the consideration for VAT or any equivalent tax chargeable elsewhere purposes.

6.3           Stockist's costs.Any and all expenses, costs and charges incurred by the Stockist in the performance of its obligations under this Contract(including, but not limited to,shipping costs, which may be amended by notification to the Stockist from time to time) shall be paid by the Stockist, unless the Supplier has expressly agreed in advance in writing to pay such expenses, costs and charges.

6.4           Payment terms.The Stockist shall pay for Products in full at the time of placing the order with the Supplier, unless otherwise agreed in writing between the parties, in which case payment shall be made in accordance with Schedule 2’s “Payment” clause and any other applicable clauses included therein.

6.5           Set-off. All amounts due under this Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

  1. Sales, Advertising and promotion

7.1           Stockist's obligations. The Stockist shall:

(a)        resell Products to end users and other stockists only;

(b)        (save for where the Stockist was already a stockist of the Supplier's products prior to the Effective Date) purchase a Starter Pack(as set out in Schedule 6, which may be amended from time to time by the Supplier at their sole discretion) for each business location the Stockist is selling the Products from within a reasonable period of time following the Effective Date.

(c)        display advertising materials and other branded signage provided by the Supplier.  The Stockist shall maintain a social media presence to advertise the Products;

(d)        observe reasonable directions and instructions issued by the Supplier for the promotion and advertisement of the Products.

(e)        inform the Supplier immediately of any changes to opening hours and contact details (including but not limited to place of business address, email address, social media accounts and/orlinks);

(f)          include “Official Frenchic® Stockist” in “Intro” and/or “About Section” onall social media platforms and business website and Google business account (if applicable);

(g)        tradefrom a retail premises that shall be open during normal business hours (or as otherwise agreed with the Supplier);

(h)        not repackage any Products supplied by the Supplier;

(i)          review all updates provided by the Supplier from time to time and act in accordance withthese instructions and inform their employees and/or concession staff of the same.

7.2           Supplier's obligations. The Supplier shall provide the Stockist with informationon products,advertising, and promotions from time to time.

  1. Supplier's Terms and Conditions of Sale

The Supplier's Terms and Conditions of Sale shall apply to all sales by the Supplier to the Stockist under this Contract. If there is any inconsistency between the Supplier's Terms and Conditions of Sale and the provisions of this Contract, the provisions of this Contract shall prevail.

  1. Trade Marks

9.1           Grant of right to use the Trade Marks and Stockist's acknowledgement. The Supplier grants to the Stockist the non-exclusive right, in the Territory, to use the Trade Marks in the promotion, advertisement and sale of the Products, subject to, and for the duration of, this Contract, as set out in Schedule 4 and in accordance with brand guidelines provided by the Supplier. The Stockist acknowledges and agrees that all rights in the Trade Marks shall remain in the Supplier, and that the Stockist has and will acquire no right in them by virtue of the discharge of its obligations under this Contract, except for the right to use the Trade Marks as expressly provided in this Contract.

9.2           Use of the Trade Marks in connection with the Products. The Stockist:

(a)        shall market and sell the Products only under the Trademarks as set out in Schedule 4, and not in association with any other trade mark, brand or trade name;

(b)        shall not use the Trade Marks as part of the name under which the Stockist conducts its business (including but not limited to business names used on social media platforms), as part of a trademark, service mark, design mark, logo, trade name, business name, assumed or fictitious name, or domain name or any connected business, or under which it sells or services any products (except the Products), or in any other way, except as expressly permitted under this Contract,without prior written consent from the Supplier and shall not use any other name, title, or expression so nearly resembling the Trade Marks as would be likely to lead to confusion or uncertainty or to deceive the public; or

(c)        shall not use the Trade Marks in a defamatory or other unlawful manner;

(d)        shall conduct itself in a manner to preserve the goodwill associated with the Trade Mark, shall not do anything that would damage or depreciate such goodwill, and shall cooperate with the Supplier in taking such actions as are reasonably necessary or desirable to ensure quality compliance, as may be reasonably specified by theSupplier from time to time.

9.3           Limitations on Stockist's use of the Trade Marks. The Stockist shall not, without the prior written consent of the Supplier:

(a)        alter or make any addition to the labelling or packaging of the Products displaying the Trade Marks;

(b)        make any addition or modifications to the Products or to any advertising and promotional materials supplied by the Supplier; or

(c)        alter, deface, decant or remove any reference to the Trade Marks, any reference to the Supplier or any other name attached or affixed to the Products or their packaging or labelling.

9.4           Prohibition on transfer. The Stockist shall not sub-license, assign, transfer, charge, or otherwise encumber the right to use, reference, or designate the Trade Marks to any other party, except as otherwise expressly permitted under this Contract.

9.5           Assistance re Trade Marks. The Stockist shall promptly give notice to the Supplier in writing if it becomes aware of:

(a)        any infringement or suspected infringement of the Trade Marks or any other intellectual property rights relating to the Products within the Territory; or

(b)        any claim that any Product or the manufacture, use, sale or other disposal of any Product within the Territory, whether or not under the Trade Marks, infringes the rights of any third party.

9.6           Effect of termination. On termination of this Contract for any reason, the Stockist shall immediately stop using all or any part of the Trade Marks (including, but not limited to, reference to “Official Frenchic® Stockist”, “Frenchic”)and, if the Trade Marks have been used in any domain name registration or in any other manner that would indicate ownership to the Stockist, Stockist agrees to assign such domain name or other registered rights to Supplier immediately upon termination or expiration, and further agrees to take any actions necessary to effectuate such transfer to Supplier, including signing assignment documents.

  1. Product liability and product recalls

10.1        Assistance with product recalls. The Stockist shall, at the Supplier's cost, give any assistance that the Supplier shall reasonably require to recall, as a matter of urgency, Products from the retail or wholesale market.

  1. Compliance

11.1        Compliance with laws. The Stockist shall at its own expense comply with all laws and regulations relating to its activities under this Contract, as they may change from time to time, and with any conditions binding on it in any applicable licences, registrations, permits and approvals.

11.2        Compliance with laws and Mandatory Policies. The Stockist shall comply with the Mandatory Policies as the Supplier may update them from time to time.

  1. Limitation of liability

12.1        Unlimited liability. Nothing in this Contract shall limit or exclude the liability of either party for:

(a)        Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable).

(b)        Fraud or fraudulent misrepresentation or wilful breach of contract or misconduct.

(c)        Any matter in respect of which it would be unlawful to exclude or restrict liability.

12.2        Limitations of liability. Subject to clause 12.1:

(a)        The Supplier shall not under any circumstances whatever be liable, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, for:

(i)          any direct or indirect loss of profit, revenue, or anticipated savings; or

(ii)         any direct or indirect or secondary consequence of any act or omission of the Supplier.

(b)        Subject to clause 3.5, the total liability of the Supplier in respect of all loss or damage arising under or in connection with this Contract pursuant to the supply of Products or otherwise, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, (providing the Product is applied in accordance with the Suppliers instructions and/or guidelines) shall be limited to the replacement value of the Product purchased to which the loss relates.

  1. Duration and termination

13.1        Term and termination on notice. This Contract will come into effect on the Effective Date and, unless terminated earlier in accordance with clauses13.2 or 13.3, it shall continue until one party gives the other party prior written notice to terminate.

13.2        Termination for cause. Without affecting any other right or remedy available to it, the Supplier may terminate this Contract with immediate effect by giving written notice to the Stockist if:

(a)        Material breach. The Stockist commits a material breach of any term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so.

(b)        Repeated breaches. The Stockist repeatedly breaches any of the terms of this Contract in such a manner as to reasonably justify the opinion that the Stockist's conduct is inconsistent with the Stockist having the intention or ability to give effect to the terms of this Contract.

(c)        Cessation of activity. The Supplier generally ceases to promote or sell the Products.

(d)        Compliance. The Stockist fails to discharge its compliance obligations under clause 11.2.

13.3        Termination for failure to achieve Minimum Quantity. Without affecting any other right or remedy available to it, the Supplier may terminate this Contract with written notice if the Stockist fails to achieve the Minimum Quantity.

  1. Consequences of termination

14.1        Accrued rights and duties. Termination or expiry of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

14.2        Territory. The Supplier on notice of termination shall at its sole discretion appoint another stockist in the Territory.

14.3        Consequences of termination. On termination or expiry of this Contract:

(a)        Termination of rights and licences. Subject to clause 14.3(c) all other rights and licences of the Stockist under this Contract shall terminate.

(b)        Supplier's right to cancel orders. The Supplier may cancel any orders for Products placed by the Stockist before termination or expiry of this Contract if delivery would fall due after termination or expiry, whether or not they have been accepted by the Supplier. The Supplier shall have no liability to the Stockist in respect of such cancelled orders.

(c)        Disposal of the Stockist's stock. the Stockist may following termination or expiry of this Contract, sell and distribute any stocks of the Products that it may have in store or under its control at the time.

14.4        Survival.Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

  1. During the Term of the Contract and for a period of one Year afterwards, Stockist shall maintain in force public liability insurance, product liability insurance, and employer's liability insurance written by reputable insurance companies, with limits satisfactory to Supplier in its sole discretion.  Failure to maintain adequate insurance shall be considered a material breach of this agreement.
  2. General

16.1        Force majeure. Neither party shall be in breach of this agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for six (6) weeks, the party not affected may terminate this Contract by giving written notice to the affected party.

16.2        Assignment and other dealings.

(a)        The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Contract.

(b)        The Stockist shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Contract.

16.3        Confidentiality.

(a)        Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 16.2(b).

(b)        Each party may disclose the other party's confidential information:

(i)          to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 16.3; and

(ii)         as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c)        No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.

16.4        Entire agreement.

(a)        This Contract constitutes the entire agreement between the parties.

(b)        Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.

16.5        Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

16.6        Waiver.

(a)        A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

(b)        A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

16.7        Severance.

(a)        If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Contract.

(b)        If any provision or part-provision of this Contract is deemed deleted under clause 16.7(b) the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

16.8        Notices. 

(a)        Any notice given to a party under or in connection with this Contract shall be in writing and shall be:

(i)          delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).

(ii)         sent by email to the addresses (or an address substituted in writing by the party to be served) communicated as between the parties from time to time.

(b)        Any notice shall be deemed to have been received:

(i)          if delivered by hand, at the time the notice is left at the proper address;

(ii)         if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and

(iii)        if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

(c)        This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

16.9        Third party rights. No one other than a party to this Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.

16.10     Governing law. This Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

16.11     Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.

 

This agreement has been entered into on the date stated at the beginning of it.

 

Schedule 1 - Mandatory Policies

Schedule 2 - Supplier’s Terms and Conditions of Sale

Schedule 3 - Prices

Schedule 4 - Trade Marks

Schedule 5 - Minimum Quantity

Schedule 6 - Starter Pack