GENERAL TERMS AND CONDITIONS FOR RESELLER/DISTRIBUTOR
The General Terms & Conditions for Resellers and Distributors (the “T&Cs”) contained herein apply to all transactions between Shenzhen LC Co., Ltd. (“SmallRig”), a Shenzhen limited company, and the Reseller/Distributor listed on the Reseller/Distributor Agreement executed between SmallRig and Reseller/Distributor. Acceptance of Purchase Orders from Reseller/Distributor by SmallRig is expressly made conditional on Reseller/Distributor’s assent to these T&Cs. The terms of these T&Cs and the Reseller/Distributor Agreement executed between the parties (collectively, the “Agreement”) shall govern all transactions between SmallRig and Reseller/Distributor.
1. PURCHASE ORDER
Purchase Order (“PO”) shall be sent electronically and is considered received on the date sent by Reseller/Distributor and accepted when confirmed in writing by SmallRig. Cancellation and changes to a PO must be in writing and agreed to by both parties. POs may include terms and conditions in addition to those in this Agreement relating to the POs. If the terms of a PO conflict with this Agreement, the terms of this Agreement shall prevail.
2. LICENCE
SmallRig appoints Reseller/Distributor as an authorized licensee for products it sells to Reseller/Distributor (the “Products”) and grants a non-exclusive, revocable, non-transferable license to sell, market, and distribute the Products in the territory set forth in the Reseller/Distributor Agreement thereof (“Territory”), except otherwise agreed in the Reseller/Distributor Agreement.
3. RIGHTS AND DUTIES OF SMALLRIG
3.1 SmallRig shall:
3.1.1 comply with all applicable laws and regulations;
3.1.2 supply the Products to the Reseller/Distributor on the terms of this Agreement;
3.1.3 SmallRig shall provide Reseller/Distributor with a reasonable support by offering full technical and after-sales customer service, delivering materials, such as product information, posters, catalogs, technical bulletins, etc at reasonable cost. For local branding campaign, if the Reseller/Distributor needs further support, SmallRig will provide corresponding support according to the submitted proposal and actual situation;
3.1.4 SmallRig shall provide co-design services called “DreamRig” to tailor make the competitive and advantageous products with the Reseller/Distributor together. The detailed information of DreamRig will be available upon Reseller/Distributor’s further request.
4. RIGHTS AND DUTIES OF THE RESELLER/DISTRIBUTOR
4.1 The Reseller/Distributor shall:
4.1.1 comply with all applicable laws and regulations;
4.1.2 use best endeavours to market and sell the Products in the Territory in accordance with the terms of this Agreement;
4.1.3 use best endeavours to purchase and maintain sufficient inventories of the Products (including parts) to support demand and sales potential in the Territory;
4.1.4 employ a sufficient number of competent and qualified personnel to carry out its obligations under this Agreement;
4.1.5 maintain sufficient facilities to carry out its obligations under this Agreement and to ensure that the Products are kept secure and in good condition;
4.1.6 comply with all relevant practices, standards and procedures notified by SmallRig from time to time including those relating to the proper storage and transportation of the Products;
4.1.7 promptly investigate and report to SmallRig any complaints, problems or claims relating to the Products and promptly provide all such assistance, at the Reseller/Distributor’s cost, as SmallRig may reasonably require to permit it to recall any of the Products that are defective or which it is obliged to recall for product liability or other reasons;
4.1.8 not modify or change any of the Products or their packaging (including labelling) without SmallRig’s prior written consent;
4.1.9 appoint sub-sellers of the Products in the Territory (if the Reseller/Distributor so desires) but only in accordance with this Agreement;
4.1.10 promptly furnish SmallRig with such information as SmallRig may reasonably require in connection with this Agreement;
4.1.11 carry out training programme and education as it sees fit and as SmallRig may specify from time to time effectively to market and support the Products in the Territory;
4.1.12 not take or authorise any action whereby the goodwill of SmallRig or its Affiliates shall or might be jeopardised; and
4.1.13 not, during the term of this Agreement and for a period of six (6) months from termination, directly or through others solicit or approach any employee or agent of SmallRig or its Affiliates who had materially engaged in the performance of this Agreement in the twelve (12) months preceding its termination.
4.2 The Reseller/Distributor represents and warrants that:
4.2.1 the person signing this Agreement on the Reseller/Distributor’s behalf has been duly authorized by all necessary corporate or other action to do so;
4.2.2 the Reseller/Distributor has taken all corporate and other actions necessary to enable it to enter into and perform this Agreement; and
4.2.3 Notwithstanding clause 1.1, the Reseller shall not, without the prior written consent of SmallRig.
4.3 The Reseller/Distributor shall indemnify and hold SmallRig harmless from and against all and any losses damages (including but not limited to any consequential, direct, indirect, special, incidental or punitive damages or loss or any other form of economic loss), liability, costs and expenses (including but not limited to reasonable professional fees), claims (including but not limited to any settlements of claims before or after issue of proceedings), actions, proceedings, judgment sums (including but not limited to sums arising from consent orders or judgments) fines and penalties, however arising out of, or in connection with any breach of this Agreement.
5. PRODUCT APPROVALS AND CONSENTS
5.1 The Reseller/Distributor warrants that it has obtained all approvals and consents required for the importation, supply, operation, storage, resale and maintenance of the Products in the Territory and has notified SmallRig of the applicable laws in the Territory.
5.2 SmallRig warrants that, as at the date of this Agreement, the Products comply with the applicable laws and regulations in Hong Kong relevant to the manufacture, design, packaging, import and export of the Products.
5.3 The Reseller/Distributor agrees, at its expense, to:
5.3.1 obtain and maintain the approvals and consents required for the importation, supply, operation, storage, resale and maintenance of the Products in the Territory, as they may be modified from time to time; and
5.3.2 notify SmallRig promptly upon becoming aware that any of the Territory Product Laws are likely to change or have changed.
5.4 The Reseller/Distributor shall be responsible for obtaining the approvals and consents required for the importation, supply, operation, storage, resale and maintenance of the Products in the Territory. SmallRig shall use reasonable endeavours to provide the certification required for the relevant approvals and consents (if any).
6.1 The Reseller/Distributor buys and sells the Products on its own behalf and does not act as an agent or employee of SmallRig or its affiliates or in any capacity other than as an independent Reseller/Distributor, and agrees to make clear in all dealings with its customers and others that it acts on its own account and not as the agent or employee of SmallRig or its affiliates.
6.2 The Reseller/Distributor agrees not to make any statement or representation, or give any warranty in relation to the Products other than as authorised or agreed by SmallRig in advance and in writing.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 SmallRig grants to the Reseller/Distributor a limited, non-exclusive and non-transferable licence to promote and sell the Products in the Territory during the term of and in accordance with this Agreement.
7.2 The Reseller/Distributor acknowledges that all Intellectual Property Rights owned by SmallRig, its Affiliates or its/their licensors shall remain the exclusive property of SmallRig, its Affiliates or its/their licensors. The Reseller/Distributor, its Affiliates and sub-sellers shall not acquire any rights therein.
7.3 SmallRig shall in its sole discretion defend or settle any action or claim brought against the Reseller/Distributor arising from:
7.3.1 the sale or use of the Products; or
7.3.2 the use by the Reseller/Distributor of SmallRig’s Intellectual Property Rights;
7.3.3 in the Territory in accordance with this Agreement that allegedly infringes any third party Intellectual Property Rights, provided that the Reseller/Distributor has complied with this Agreement.
7.4 In relation to clause 8.1, it shall not apply to the Products or Intellectual Property Rights modified or used by the Reseller/Distributor, its Affiliates or sub-sellers other than in accordance with this Agreement. The Reseller/Distributor shall indemnify and hold SmallRig harmless from and against all and any losses, damages (including but not limited to any consequential, direct, indirect, special, incidental or punitive damages or loss or any other form of economic loss), liability, costs and expenses (including but not limited to reasonable professional fees), claims (including but not limited to any settlements of claims before or after issue of proceedings), actions, proceedings, judgment sums (including but not limited to sums arising from consent orders or judgments) fines and penalties, however arising out of, or in connection with, this clause by the Reseller/Distributor, its Affiliates or sub-sellers.
7.5 In relation to clause 8.1, the Reseller/Distributor shall:
7.5.1 promptly advise SmallRig in writing of any claim or action and providing full details of the same;
7.5.2 make no admission as to, or settlement or compromise of, any claim or action without SmallRig’s prior written consent;
7.5.3 give SmallRig, at its request, sole conduct of any defence and any settlement negotiations; and
7.5.4 co-operate fully with SmallRig and provide SmallRig with all reasonable assistance in the defence or settlement of such claim or action.
7.6 SmallRig may in its sole discretion withdraw, replace or modify any of the Products if SmallRig thinks, or it is claimed, that such Product infringes, or may infringe, any third-party Intellectual Property Rights. SmallRig shall give the Reseller/Distributor reasonable practicable notice of such action.
7.7 The provisions of this clause Error: Reference source not found set out the entire obligation and liability of SmallRig in relation to Intellectual Property Rights infringement claims by third parties and are the sole remedy of the Reseller/Distributor in respect of its subject matter.
8.1 The Reseller/Distributor shall not, during the term of this Agreement and at all times thereafter, without SmallRig’s prior written consent, disclose:
8.1.1 the existence or terms of this Agreement;
8.1.2 any information relating to the customers, the Products, plans or otherwise to the business or affairs of SmallRig which is confidential (whether or not identified by SmallRig as confidential); or
8.1.3 any information developed by either party in performing its obligations under, or otherwise pursuant to this Agreement,
all of which is “Confidential Information”.
8.2 The Reseller/Distributor shall not use Confidential Information of SmallRig except as required to perform this Agreement.
8.3 Disclosure of Confidential Information may be made to a party’s officers, employees, professional advisers and consultants and other agents, in each case on condition that the party disclosing is responsible for compliance with the obligations of confidence hereunder.
8.4 Confidential Information does not include information which:
8.4.1 is or becomes public other than by breach of this Agreement;
8.4.2 is or becomes known to the other party without breach of confidence;
8.4.3 is independently developed by the other party without using information supplied by the disclosing party; or
8.4.4 is required to be disclosed by law or regulatory authority.
9. Indemnification
9.1 Reseller/Distributor will indemnify, defend, and hold harmless SmallRig, its employees and agents from any and all claims, actions, liabilities, losses, costs and expenses, including attorneys’ fees, arising from: (i) Vendor's breach of this Agreement including but not limited to its representations and warranties; (ii) acts or omissions of Reseller/Distributor relating to the Products including without limitation claims that Products caused personal injury, death, or property damage; (iii) claims that the Products, Vendor Marks or Vendor Content infringe upon third party intellectual property rights; (iv) false or misleading Product Classifications or Content; and (v) Reseller/Distributor's failure to provide or update accurate country of origin information.
10.1 “Force Majeure” means an event or sequence of events due to flood, fire, earthquake, draught, epidemic, war or any other events beyond a party’s reasonable control, preventing or delaying it from performing its obligations under this Agreement except that an inability to pay is not Force Majeure.
10.2 A party shall not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it:
10.2.1 promptly notifies the other party of the Force Majeure event and its expected duration as soon as reasonably practicable and in any event within fifteen (15) Business Days after its occurrence; and
10.2.2 uses reasonable endeavours to minimise the effects of that event.
10.3 If, due to Force Majeure, a party:
10.3.1 is or shall be unable to perform a material obligation; or
10.3.2 is delayed in or prevented from performing its obligations for a continuous period exceeding thirty (30) Business Days;
the other party may terminate this Agreement on immediate notice, or the parties will, within thirty (30) Business Days of the commencement of the Force Majeure event, renegotiate the Agreement to achieve, as nearly as possible, the original commercial intent.
11.1 Each party shall comply with applicable Bribery Laws and use all reasonable endeavours to ensure that:
11.1.1 all of that party’s personnel;
11.1.2 all others associated with that party; and
11.1.3 all of that party’s subcontractors;
involved in the performance of this Agreement so comply.
11.2 Without limitation to clause 13.1, neither party shall make or receive any bribe or other improper payment or advantage, or allow any such bribe, improper payment or advantage to be made or received on its behalf, either in Hong Kong or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or improper payments or advantages are not made or received directly or indirectly on its behalf.
11.3 Each party shall immediately notify the other as soon as it becomes aware of a breach or possible breach of any of the requirements in this Agreement.
The parties agree that this Agreement constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of the subject matter of this Agreement.
13.1 The Reseller/Distributor shall not assign, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without SmallRig's prior written consent.
13.2 Notwithstanding clause 17.1, a party may perform any of its obligations and exercise any of its rights granted under this Agreement through any Affiliate, provided that it gives the other party prior written notice including the identity of the relevant Affiliate. Each party acknowledges and agrees that any act or omission of its Affiliate in relation to that party’s rights or obligations under this Agreement shall be deemed to be an act or omission of that party itself.
14.1 No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
14.2 No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.
14.3 A waiver of any term, provision, condition or breach of this Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
This Agreement may be signed in any number of separate counterparts, each of which when signed and dated shall be an original, and such counterparts taken together shall constitute one and the same agreement.
Each party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of this Agreement (and any documents referred to in it).
The language of this Agreement is English. If this Agreement and any document relating to it is translated into another language, the English version shall prevail.
