CELINE ESCAND, a French company (“Société par actions simplifiée”), having its registered office at
11 Boulevard Victor Hugo – 13210 SAINT REMY DE PROVENCE – France, RCS Tarascon 840
333 967, duly represented by Celine Escand, being fully authorized to act for the purposes of this
hereinafter referred to as “Supplier”,
ON ONE HAND
…………., a corporation organized and existing under the laws of ……….. with offices at ……….
hereinafter referred to as the “Distributor”,
ON THE OTHER HAND
Hereinafter individually referred to as “the Party” and collectively referred to as “the Parties”
Supplier is specialized in the manufacture and the commercialization of cosmetic products as described in Appendix 1 (hereafter “the Products”).
Supplier desires to grant to Distributor the right to distribute the Products on a non-exclusive basis on the territory mentioned in Appendix 2 (hereafter “Territory”), and Distributor desires to accept such rights, all in accordance with the terms and subject to the conditions contained in this agreement.
Distributor acknowledges having received from Supplier before the signature of this agreement all the documents and information necessary to enable it to have a full understanding of the scope of its undertakings and of the nature of the Products and distributorship, in order that it may enter into this agreement with full knowledge of all the facts.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual promises and covenants contained in this agreement, Supplier and Distributor, intending to be legally bound, hereby agree as follows:
ARTICLE 1. – DEFINITIONS.
For the purposes of this agreement, its appendices and any amendments hereto, the following words shall have the following meanings, to the exclusion of any other meanings irrespective of the circumstances:
Agreement: The present agreement, its appendices and all amendments duly signed by both Parties.
Intellectual Property Rights: all intellectual property rights including, without limitation, patents, know-how, registered and unregistered trademarks, registered and unregistered designs, logos, domain names, applications for and rights to apply for any of the foregoing, rights to prevent passing off and/or unfair competition, rights in respect of confidential information, copyright, database rights, topography rights, any other rights in any invention, discovery or process, trade secrets and any other intellectual property or industrial property right of any nature whatsoever worldwide together with all renewals and extensions, relating to the Products.
New Products: All the products developed, manufactured or produced by Supplier after the date of signature of the Agreement.
Products: cosmetic products as defined in Appendix 1.
Territory: The territory defined in Appendix 2.
ARTICLE 2. – PURPOSE OF THE AGREEMENT.
2.1. Supplier grants to Distributor the distribution of the Products in the Territory on a non exclusive basis, and Distributor hereby accepts such rights. Therefore, Supplier is entitled to grant the distribution of the Products to any third party and/or to distribute them by itself.
2.2. If New Products are developed, Supplier will be free to grant the right of selling part or totality of these New Products to Distributor.
In such event, the conditions of sale of the New Products to Distributor will be fixed in an amendment to the Agreement signed by both Parties.
2.3. Distributor is and at all times shall be an independent contractor. Nothing contained in this Agreement shall be construed as constituting Distributor as an agent, partner, joint venturer or employee of Supplier or cause Supplier to be liable for any of the debts or obligations of Distributor, nor shall Distributor have the right or authority to act for or incur any liability or obligation of any kind, express or implied, in the name of or on behalf of Supplier.
Distributor shall pay all of its own costs and expenses incidental to Distributor’s performance of its obligations under this Agreement and shall be solely responsible for the acts, salaries and expenses of sales personnel or other employees engaged by Distributor to assist in Distributor’s activities under this Agreement.
Distributor will furnish Supplier with proof in the form of official documents that it is lawfully entitled to carry out the activity provided for herein, and more particularly that it has possession of the premises provided for and the right to carry out such business activity pursuant to the required registrations and certificates.
ARTICLE 3 – OBLIGATIONS
3.1. By Distributor.
- 3.1.1 Level of Effort and quantity. Distributor shall use commercially reasonable efforts to market, promote, sell, and distribute the Products. In connection therewith, Distributor shall maintain, at its own expense, an adequately trained staff to enable Distributor to fulfill its obligations under this Agreement.
Distributor undertakes to buy to Supplier at least the quantities of Products mentioned in Appendix 3 per contractual year. The non fulfilment of this obligation will be considered as a serious breach which can be sanctioned according to Supplier’s will by the termination of the Agreement.
- 3.1.2 Restrictions. During the term of the Agreement as defined in article 10.1 hereafter, Distributor shall not actively canvass clients established out of the Territory and notably it shall not, out of the Territory, avertise for the Products or open a branch, an office or a warehouse for the distribution of the Products outside the Territory.This Agreement does not prevent Distributor to fulfil unsolicited orders from customers established outside the Territory.
The non fulfilment of this obligation will be considered as a serious breach which can be sanctioned according to Supplier’s will by the termination of the Agreement or by the reduction of the Territory.
- 3.1.3 Materials. Supplier provides Distributor with promotional and/or commercial and/or technical materials. Distributor shall produce and use sufficient quantities of commercial and/or technical materials and/or promotional materials, including sales aids, brochures, product briefs, advertisements and similar materials relating to the Products for purposes of promoting, marketing, selling and distributing the Products; provided that all such materials shall be subject to the written approval of Supplier prior to their use.
Distributor shall establish procedures to ensure that all new customers are shown or otherwise informed regarding how to make proper use of the Products. In order to fulfill this obligation, the Distributor shall notably read, apply, respect and explain to each purchaser the specification sheets related to the Products. It shall do everything it can to guarantee that each purchaser will respect them. In addition, the Distributor shall provide appropriate customer support to maintain and foster customer satisfaction.
When and as reasonably requested by Supplier, Distributor shall participate at the training sessions organized by Supplier. Distributor will pay its transport and accommodation expenses.
- 3.1.4 Compliance with Laws and Safety instructions. Distributor shall comply with all applicable treaties, laws, rules and regulations within the Territory in connection with its promotion, marketing, use, sale or distribution of the Products and the performance of its obligations under this Agreement.
- 3.1.5 Resale prices. Distributor is free to resell the Products at the selling price it will determine.
3.2 By Supplier
- 3.2.1. Delivery. Supplier shall deliver to Distributor the Products mentioned in the orders accepted by Supplier such as explained in this article 3.2.1.
Distributor will send an order to Supplier which will state all the information mentioned in Appendix 4.
The contract will be binding once Supplier sends to Distributor its acceptance of the order duly completed by Distributor within thirty (30) Business Days after receipt. The acceptance order shall include a specific date of delivery in the first haulage which will be determined by Supplier, provided that the term from the acceptance of the order to the delivery shall not exceed two months.
Delivery date are defined in the order accepted according to provisions herein. They are indicative.
Once the contract is binding, no cancellation or amendment will be accepted and the price will be due.
Supplier shall deliver the Products in accordance with Incoterm Ex-Works (Incoterms ICC 2010) at the registered address of Supplier. All risk of loss, damage, spoilage, improper storage, mishandling and negligence for all Products shall pass to Distributor at the time of delivery at the registered address of Suppliers. Accordingly, in the event that Supplier should handle shipping to the location indicated in the order accepted in accordance with article 3.2.1 above, it is solely in the capacity as Distributor’s agent. Delivery costs are therefore fully invoiced back to Distributor.
UNTIL THE FULL PURCHASE PRICE FOR THE PRODUCTS PURCHASED HEREUNDER IS RECEIVED BY SUPPLIER, SUPPLIER SHALL RETAIN ITS RIGHT OF PROPERTY ON THE PRODUCTS. The Distributor shall maintain insurance covering the replacement value of such Products prior to payment of the price therefore and shall name Supplier as an additional insured and loss payee in respect of such Products.
- 3.2.2. Information. Supplier shall inform Distributor of the modifications and improvements of the Products.
ARTICLE 4. – INTELLECTUAL PROPERTY
Supplier grants to Distributor, for the entire duration of this Agreement, the right to use its Intellectual Property Rights for the purpose of promoting, marketing and commercializing the Products in the Territory.
Any intellectual property rights of each Party remains the entire and full property of this Party. In no event, may this Agreement transfer any intellectual property rights of one of the Parties to the other Party.
Distributor is prohibited, on one hand, from using the Intellectual Property Rights for any other usage than the promotion and the commercialization of the Products and, on the other hand, from not respecting the graphic, the logo and the colors linked to the trademarks and logos of Supplier.
Supplier can, at all times, restrict the usage of the Intellectual Property Rights by Distributor.
Distributor shall nor deposit, register, neither have deposited or registered a trademark, trade name, patent, domain name or identical distinctive signs, similar or susceptible to bring confusion with those of Supplier, on the Territory likewise outside the Territory.
Distributor shall inform Supplier of all Intellectual Property Rights’ violations which it shall have knowledge of during the course of his mission.
Upon termination of this Agreement for whatever reason it may be, Distributor shall immediately cease all use of Supplier’s Intellectual Property Rights, except for the necessary use to complete a sale operation of Products where the Order Form is in progress at the date of breach of this Agreement.
ARTICLE 5 – PRICES AND PAYMENT TERMS
Products’ prices are freely determined by Supplier. Prices are quoted ex-works (Incoterm ICC 2010) registered office of Supplier and are exclusive of tax and expenses.
For the first calendar year, prices of the Products are determined in Appendix 5.
Then, the prices can be changed at any time by Supplier. In that case, Supplier shall notify such changes to Distributor by registered air mail or by email at least thirty (30) days prior to the coming into force of the new prices.
Payment of all invoices shall be remitted:
- for 50% of the price on the day of the order,
- for 50% of the price thirty (30) days from the date of issue of the invoice issued once the Products ordered are ready to be shipped.
The payment is accepted only by wire transfer. Payment by any other means requires express approval in writing by Supplier.
No discount shall be granted for advance payments.
In case of late payment, Distributor shall pay penalty interests equal to the BCE rate plus 10 points applicable on the issue of the invoice and to the payment of a fix penalty for recovery costs of 40 euros. The said fees will be payable until the date of remittance of the amount due, including interest.
ARTICLE 6 – WARRANTIES – LIABILITY
6.1. Supplier may only be held liable if the delivered Products do not comply with the technical specifications of the Products.
6.2. To prevent from being held liable in case of non compliance of a Product with its technical specifications, Supplier shall repair or replace, at its option, expense and after its inspection, the Product which do not comply with its technical specifications. This warranty is only limited to the cost of the components of the Product, it does not include the workmanship provided by Supplier.
The Supplier’s obligation to repair or replace the Product which do not comply with its technical specifications shall not apply to any Products that have been subjected to misuse, mishandling, neglect or whatever intervention, alteration or modification which was not carried out by Supplier or one of its employees after delivery to Distributor.
This article 6.2 states Distributor’s sole and exclusive remedy for failure of any Product to comply with the limited warranties set forth in article 6.1.
Therefore, any failure of Distributor in the respect of these requirements or the improper use of the Product will exempt Supplier from any contractual liability on the ground of the Agreement.
6.3. Distributor is obliged to immediately examine the delivered Products on the final delivery site for obvious defect. Should a defect be detected thereby, Distributor shall report this in writing (fax, email or registered letter) to Supplier without delay. A notice of visible defect may only be observed if it is sent without delay at the latest within plus 5 working days of delivery. Any notice must specify whether such damage is of internal origin or consequential to an event which occurred during transport.
Otherwise, Supplier will be exempted from any contractual liability on the ground of the Agreement.
6.4 IN ANY CASE, SUPPLIER SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING IN ANY WAY OUT OF THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND THE COST OF REPLACEMENT PRODUCTS OR GOODS. THIS LIMITATION WILL APPLY EVEN IF DISTRIBUTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
IN ANY CASE, THE SUPPLIER’S LIABILITY WILL NEVER EXCEED THE PRICE PAID BY DISTRIBUTOR IN COMPENSATION OF THE PREJUDICIAL PRODUCT(S).
Supplier can always avoid from being held liable if it repairs or replace the defective Product.
ARTICLE 7 – INSURANCE
Distributor represents, warrants, and covenants that during the term of the Agreement, it shall maintain general liability insurance, including contractual liability coverage of all of the Distributor’s obligations under this Agreement, products liability/completed operations coverage and premises coverage of all risks arising from the utilisation and possession of its premises (in particular theft, fire, flood damage … ). Such insurance shall be evidenced by one or more certificates of insurance delivered to Supplier on an annual basis, and providing that Supplier shall receive at least thirty (30) days’ prior written notice of cancellation or material change of any of the policies underlying such coverage. Any failure by Distributor to maintain the insurance coverage required by this article 7 shall be a material breach of this Agreement.
ARTICLE 8 – COMPLAINTS
Distributor shall inform Supplier promptly of the receipt of any complaints about the Products and shall forward all complaints to Supplier as soon as practicable after receipt by Distributor. Distributor shall cooperate with Supplier, as necessary and useful, to investigate and respond to such complaints.
ARTICLE 9 – CONFIDENTIALITY AND NON-USE OF INFORMATION.
9.1 Confidential Information.
9.1.1 Definition of “Confidential Information.” As used in this Agreement, the term “Confidential Information” shall mean all technical, financial, commercial or other information of Supplier, as applicable, irrespective of the form of communication and whether or not disclosed prior to or after the date of signature of the Agreement, other than information that was generally known or otherwise generally available to the public or the industry before disclosure to the Distributor, or information that becomes generally known to the public or the industry after such disclosure through no wrongful act or omission of Distributor. Failure to mark or otherwise identify any information as confidential or proprietary shall not adversely affect its status as “Confidential Information.”
9.1.2 Obligations of Confidentiality and Non-Use. During the Term and at all times thereafter, Distributor shall disclose any of the Supplier’s Confidential Information. The foregoing shall not prohibit disclosures: (i) made to the Distributor’s employees, agents or advisors who have a “need to know” the Supplier’s Confidential Information to the extent necessary to perform Distributor’s duties and obligations, or to enforce Distributor’s rights, under this Agreement; or (ii) compelled to be made by any requirement of law or pursuant to any legal or investigative proceeding before any court, or governmental or regulatory authority, agency or commission so long as Distributor so compelled to make disclosure of Confidential Information pertaining to the Supplier provides prior written notice to the Supplier and uses its commercially reasonable efforts to cooperate with it to obtain a protective order or other similar determination with respect to such Confidential Information.
During the execution of the Agreement and three years after its termination or expiration, the Distributor shall not use any of the Supplier’s Confidential Information for its own direct or indirect benefit, or the direct or indirect benefit of any third party, except that Distributor may use the Supplier’s Confidential Information to the extent necessary to perform its duties and obligations, or to enforce its rights, under this Agreement.
Distributor shall (i) take reasonable steps, whether by instruction, agreement, or otherwise, to cause its employees, agents and advisors who may have access to the Supplier’s Confidential Information, to comply with its obligations under this Article 9 and (ii) shall be liable for the breach of this article 9 by any of its employees, directors, agents or advisors who may have access to the Supplier’s Confidential Information.
9.2 Remedies. Any breach of the restrictions contained in this article 9 by Distributor is a material breach of this Agreement, which may cause irreparable harm to Supplier entitling Supplier to ask for damages in addition to all other legal remedies.
ARTICLE 10 – TERM AND TERMINATION.
10.1 Term. The Agreement shall enter into force on the date of its signature for an indefinite term. Each Party may terminate this Agreement wth a prior written notice of three (3) months sent by registered letter with acknowlegment of receipt.
10.2.1 By Reason of Material Breach. This Agreement may be terminated by either Distributor or Supplier upon notice if the other Party materially breaches any term or condition of this Agreement (other than a breach covered by Section 10.2.2) and fails to remedy the breach within thirty (30) days after being given notice thereof.
10.2.2 By Reason of Bankruptcy or Similar Proceedings. This Agreement may be terminated in its entirety by Supplier upon notice if Distributor: (a) has any financial difficulty, (b) becomes the subject of any voluntary or involuntary insolvency proceeding or (c) ceases to be actively engaged in business.
10.3 Effect of Termination.
10.3.1. Termination or expiration of this Agreement shall not relieve the Parties of any obligation arising prior to the effective date of such termination or expiration and shall not constitute a waiver of any right of the parties under this Agreement as a result of breach or default.
10.3.2. If this Agreement is validly terminated by either Distributor or Supplier pursuant to article 10.2. of this Agreement, then subject to the limitations set forth in article 6 of this Agreement, any and all rights and remedies available to the non-breaching party, whether under this Agreement, at law or in equity shall be preserved and survive the termination of this Agreement.
10.3.3. Upon expiration of this Agreement or its termination by either Party, Distributor, as Supplier may direct, shall destroy or return to Supplier promptly all tangible materials provided to it by Supplier that embody the Supplier’s Confidential Information and shall erase or delete all such Confidential Information embodied in any magnetic, optical or similar medium or stored or maintained on any information storage or retrieval device, and shall provide an officer’s certificate regarding such destruction, return, erasure or deletion.
Distributor also undertakes (i) to resituate, at first demand from Supplier, all the Products, promotional documents or promotional material, and generally all the documents or material belonging to Supplier and (ii) to refrain from any direct or indirect use, promotion, or utilisation of and distribution of propaganda on the Supplier’s distinctive emblems and other intellectual property rights in any manner whatsoever.
10.3.4 Survival. The following articles shall survive expiration or termination of this Agreement for any reason: Articles 4, 6, 9, 10.3, 11.2 and 11.10.
ARTICLE 11 – GENERAL PROVISIONS.
11.1 Currency. All amounts payable under this Agreement shall be paid in euros, unless otherwise agreed in writing.
11.2 Governing Law. Without reference to conflict of laws principles of any jurisdiction, this Agreement shall be governed by, and construed and interpreted in accordance with, the laws of FRANCE.
11.3 Force Majeure. Notwithstanding anything to the contrary set forth herein, neither Party shall be liable in damages, nor shall either Party have the right to terminate this Agreement for any delay or default in performing any obligation hereunder, if such delay or default is caused by conditions beyond the control of the relevant Party, including but not limited to, acts of God, governmental restrictions or regulations, wars or insurrections, strikes, fire, floods, work-stoppages, lack of materials, and unforeseen occurrences or other occurrences beyond the control of the affected Party; provided, however, that the Party so affected shall contact the other with appropriate documentary evidence within 15 days of the occurrence of the event, employ such reasonable actions to avoid or to remove such cause of non-performance, and continue performance under this Agreement with the utmost dispatch whenever the relevant cause is abated; and further provided that if either Party is unable to fulfill any relevant obligation under this Agreement due to any such cause, and this situation continues for a period of sixty (60) days, then the other Party hereto shall have the right to terminate this Agreement by written notice.
11.4 Assignment. This Agreement may not be assigned or otherwise transferred, nor may any right or obligation under this Agreement be assigned or transferred, by Distributor to a third party (notably by sale of its business or assets, transfer of all or part of the ownership or possession of the company of the Distributor, whether by sale, merger, operation of law or otherwise) without the prior written consent of Supplier.
Distributor undertakes to inform Supplier about any plan or realisation of one of the previous events.
11.5 No Third Party Beneficiaries. Distributor and Supplier intend that only Distributor and Supplier will benefit from, and are entitled to enforce the provisions of this Agreement. No third party beneficiary is intended under this Agreement.
11.6 Modifications; Waiver. No modification to this Agreement shall be effective unless such modification is in a writing which is signed by a duly authorized representative of each of Distributor and Supplier. No waiver of any rights or breach or default under this Agreement shall be effective unless assented to in writing by the party to be charged with such waiver. The waiver of any breach or default shall not constitute a waiver of any other right hereunder or any subsequent breach or default.
11.7 Notices. Any required notices under this Agreement shall be given in writing at the address of each Party set forth above, or to such other address as either Party may substitute by written notice to the other. All notices shall be sent to the attention of the recipient’s executive officer by registered post with official receipt or any other equivalent notification procedure.
11.8 Descriptive Headings. The headings of the several sections of this Agreement are intended for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.
11.9 Severability. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without such provision; provided that this severability provision shall not be effective if it materially changes the economic benefit of this Agreement to either Distributor or Supplier.
11.10 Litigation. ANY CONTROVERSY OR CLAIM BETWEEN DISTRIBUTOR AND SUPPLIER ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY BREACH OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY CLAIM THAT THIS AGREEMENT, OR ANY PART THEREOF, IS INVALID, ILLEGAL OR OTHERWISE VOIDABLE OR VOID, SHALL BE SUBMITTED TO THE COMMERCIAL COURT OF TARASCON (FRANCE).
11.11 Entire Agreement. This Agreement and its appendices constitute the entire and exclusive agreement and understanding between Distributor and Supplier with respect to the subject matter of this Agreement, and supersede and cancel all previous negotiations, agreements, and commitments, whether oral or in writing, in respect to the subject matter of this Agreement.
Each of the Parties hereto undertakes to sign, ratify and authenticate all documents necessary for the full execution of this Agreement, its appendices and any amendments hereto in good faith.
In two (2) originals
The Supplier The Distributor
APPENDIX 1 List of products
- Baume n°1 200 ml
- Baume n°1 100 ml
- Baume n°2 200 ml
- Baume n°2 100 ml
- Baume n°3 200 ml
- Baume n°3 100 ml
- Baume n°4 100 ml
APPENDIX 2 Territory
The Territory is the country of Finland.
APPENDIX 3 Minimum quantities of Products per year
The minimum quantities of Products per year is 15,000.
APPENDIX 4 Information to be completed on the order from Distributor
N° of the order
Date of the order
Date of delivery required
References of the Products ordered
APPENDIX 5 Price list
- Baume n°1 200 ml : [ ] euros
- Baume n°1 100 ml : [ ] euros
- Baume n°2 200 ml : [ ] euros
- Baume n°2 100 ml : [ ] euros
- Baume n°3 200 ml : [ ] euros
- Baume n°3 100 ml : [ ] euros
- Baume n°4 100 ml : [ ] euros
Contact us :
SAS CELINE ESCAND
Mas Saint Bernard, 4 route de Maillane
13210 Saint-Rémy-de-Provence, France
Tel : +33 (0)4 90 26 48 54
Pro : +33 (0)6 47 08 38 17