Terms and Conditions

1.Definitions and Interpretation

The definitions and interpretation rules laid down in this clause shall apply in these Conditions and the Background:

1.1. “Brand Guidelines” shall mean any brand guidelines issued by Loren Williams setting out requirements of Loren Williams regarding the use of the Trade Marks.

1.2. “Brochure Promotional Images” or “Images” shall mean the photographs available from Loren Williams, which are to be used strictly in conformity with these Conditions.

1.3. “Conditions” shall mean the terms and conditions laid down in this document, as amended by Loren Williams at any point in time.

1.4. “Contract” shall mean the contract between Loren Williams and the Retailer regarding the distribution, purchase, sale, and resale of the Products in conformity with these Conditions.

1.5. “Loren Williams” shall mean Loren Williams trading as Loren Williams, a company incorporated and registered in Scotland having company number SC202343 with its registered address as Grove Group (Scotland) Limited, 2 Bridge Street, Newbridge, EH28 8SR and local address as 142 High Street, Fremantle, WA 6160.

1.6. “Loren Williams Brochures” shall mean the range of catalogues of Loren Williams Products that include, but are not limited to, products listed at the Website of Loren Williams as amended from time to time by Loren Williams.

1.7. “Loren Williams Website” shall mean the website at www.lorenwilliams.co.uk, www.lorenwilliams.com.au, and any other website being used by Loren Williams to operate in different jurisdictions. This shall also include any other brand link in association with Loren Williams.

1.8. “Order” shall mean the order for Products placed by the Retailer as set out in their:

(a) written order to Loren Williams by post at: the aforementioned address;

(b) email to Loren Williams at: sales@lorenwilliams.com.au and/or sales@lorenwilliams.co.uk;

(c) oral order by telephone to Loren Williams on +61 (0) 415 235 551 and/or +44 (0)131 333 2345;

1.9. “Products” shall mean the products sold by Loren Williams, including but not limited to, those set out in the Brochures of Loren Williams or any other products developed by Loren Williams and which Loren Williams may notify to the Retailer from time to time.

1.10. “Store Site” shall mean the Retailer’s high street store space.

1.11. “Term” shall mean the term of the Contract, as determined in conformity with clause 11.

1.12. “Trade Marks” shall mean the registrations and applications of trade mark listed in the Brand Guidelines and any further trade marks that Loren Williams may, in writing or by way of express notice, permit, or procure permission for, the Retailer to use in respect of the Products.

2. Basis of Contract and Appointment of Retailer

2.1. The Order placed by the Retailer for Products shall constitute an offer by the Retailer to purchase the Products in conformity with these Conditions.

2.2. The right to not accept any Order for any reason whatsoever is reserved with Loren William, and only when Loren Williams issues a written acceptance of the Order shall the Order be deemed to be accepted, at which point the Contract shall come into existence.

2.3. The coming of the Contract into existence marks the appointment of the Retailer by Loren Williams as its non-exclusive distributor to promote, market, distribute and sell the Products in conformity with these Conditions.

2.4. These Conditions shall apply to the Contract notwithstanding any other terms that the Retailer seeks to impose or incorporate, or which are applicable by implication of trade, custom, practice or course of dealing.

3. The Undertakings by Retailer

3.1. The Retailer undertakes and agrees with Loren Williams that at all times during the Term of the Contract, it will:

3.2. Ensure the payment of or pay to Loren Williams on the due date all sums that are due to Loren Williams for sales of the Products to the Retailer;

3.3. Endeavour to provide a high level of customer service at all times in relation to the Loren Williams Products, and to uphold the excellent reputation of Loren Williams for quality and customer service;

3.4. Ensure that the Images are not used in connection or in relation to online sales at any time;

3.4. Images to be used only:

(a) on online media, exclusively for identifying itself as a stockist of the Products;

(b) within the limits of the geographical area as determined by an agreement between Loren Williams and the Retailer, for the sole purpose of promotion and advertisement of sales of the Products.

3.5. Ensure that the Retailer does not at any time, act, trade or conduct business in a manner which may potentially be detrimental to the Loren Williams brand or harm or negatively affect the reputation of the Loren Williams Trade Marks;

3.6. At all times act in accordance with Loren Williams Brand Guidelines;

3.7. Not use any promotional literature, promotional images, or advertising materials without the prior written consent of Loren Williams;

3.8. Ensure that any website used by the Retailer for the promotions and sales of the Products, in compliance with these Conditions, meets the industry standard in quality and other criteria;

3.9. Insure with a trusted insurance company at its own expense all stocks of the Products as are held by Retailer against all potential risks which would be insured against by a prudent businessman in the normal course of events to at least their full replacement value, and provide to Loren Williams full details and documentation of that insurance, including but not limited to the receipt for the then current premium;

3.10. Indemnify Loren Williams on demand against each cost, liability, and loss that Loren Williams may accrue as a consequence of the breach of the Retailer’s obligations as laid down under the Contract; and

3.11. Ensure at its own cost compliance with all laws and regulations pertaining to its activities under these Conditions, as they may change at any point of time, and with any conditions binding on it in any applicable permits, licences, registrations and approvals.

4. Use of Trade Marks and the Images

4.1. The Retailer is hereby granted by Loren Williams the non-transferable, non-exclusive, non-sub licensable, royalty-free and fully paid-up licence for the usage of the Trade Marks and the Images in relation to any promotion, advertisement and sale of the Products only in conformity with these Conditions.

4.2. The licence as provided under Clause 4.1.:

(a) The Retailer is expressly prohibited from the use of the Images in any manner in relation to online sales;

(b) The Retailer is permitted, for the sole purpose of representing that it is a stockiest of the Products, to use the Images in an online capacity; and

(c) The Retailer is permitted, for the purposes only of advertising and promotion of sales of the Products, to use the Images in an area spanning a 40 (forty) kilometres radius of its Store Site.

4.3. The Retailer shall not market and sell the Products in association with any other trade mark, brand or trade name, except:

(a) as provided in any Brand Guidelines issued by Loren Williams at any point of time; or

(b) with the prior express written permission of Loren Williams, i.e. for the purpose of white label products.

4.4. The Retailer shall submit to Loren Williams the representations of the Trade Marks and the Images that the Retailer intends to use for written approval prior to use, and shall not, except with the prior express written consent of Loren Williams, make any addition to, remove, alter or deface the Trade Marks, or make any reference to Loren Williams or any other name displayed on the Products or their packaging or labelling.

4.5. It is hereby acknowledged and agreed by the Retailer that all rights associated with the Trade Marks and the Images are reserved in Loren Williams, and that the Retailer has and shall acquire no right in them on the grounds of discharge of its obligations under these Conditions, except for the right to use the Trade Marks and the Images as expressly provided in these Conditions.

4.6. The Retailer shall not act or omit anything in any manner in the course of its use of the Trade Marks that could have adverse effects on their validity or reputation.

4.7. Each party shall expeditiously give a written notice to the other in case it gets to know of: any instance of infringement or potential infringement of the Trade Marks, the Images or any other intellectual property rights associated with the Products; or any claim or assertion that any Product or the use, manufacture, sale or other disposal of any Product, regardless of whether or not the rights of any third party are claimed to be infringed by the Trade Marks or in connection with the Images.

4.8. Loren Williams reserves the right to decide at its sole discretion, in respect of any matters falling within Clause 4.7., any action to be taken with respect to the issue (if any) and shall conduct and exercise absolute control in relation to any subsequent actions that it may deem fit.

4.9. Each party shall extend any reasonable assistance to the other Party (including but not limited to the usage of its name in, or joinder as a party to, proceedings), at the behest and cost of the other, with any action to be taken by the other party under this clause 4, ensuring that that other party is provided such indemnity as it may reasonably need to secure against any costs, losses, and expenses that it may incur as a consequence of or in connection with extending such assistance.

4.10. The sole responsibility for the registration and maintenance of any marks or designs relating to the Products lies with Loren Williams. The Retailer shall not anywhere in the world obtain or try to obtain or register for itself any trademarks or trade names that may be the same as or similar to such Trade Marks.

4.11. Upon the breach of any of the provisions listed in this Clause 4 by the Retailer, Loren Williams shall have the option to, without limiting its other rights and remedies under these Conditions, terminate with immediate effect this licence and/or the Contract by giving an express written notice to the Retailer.

4.12. The Retailer will immediately cease the use of all or any part of the Trade Marks or the Images upon termination of the Contract for any reason.

5. Supply of Products

The availability of and the specifications of the Products are subject to change by Loren Williams at any point of time, provided such changes do not have an adverse impact on the quality of the Products. As soon as reasonably practicable, the notice of any changes to Product specifications shall be given by Loren Williams to the Retailer.

6. Undertakings of Loren Williams

Loren Williams agrees to extend any support and provide any information that may be requested by the Retailer in the normal course at all times during the Term so as to enable the Retailer to effectively discharge its duties under the Contract, including, at its own option, information regarding the promotion and advertising undertaken by Loren Williams; and any accessible promotional and advertising material that the Retailer may reasonably request, at the expense of the Retailer.

7. Prices and Payment

7.1 The prices to be paid for the Products to Loren Williams by the Retailer are to be the same as the Loren Williams list prices as notified to the Retailer by Loren Williams from time to time. A total of 28 (twenty-eight) days’ notice shall be given by Loren Williams in writing to the Retailer regarding any hike in the prices for the Products.

7.2. The full amount invoiced to the Retailer by Loren Williams shall be paid by the Retailer in the currency listed on the invoice within a span of 30 (thirty) days of the date of invoice.

7.3. Payment of any amount by either party due to the other may not be withheld because of any counter-claim, abatement, set-off or other similar deductions.

7.4. Between Loren Williams and the Retailer, it shall be the responsibility of solely the Retailer to pay for the collection, payments and remittance of any or all charges, levies, assessments, taxes, and other fees of any kind imposed by governmental or any other authority in relation to the sale, purchase, lease, importation or other distribution of the Products.

8. Conditions Of Sale

Loren Williams terms and conditions of sale in effect at any point of time shall apply to all sales by Loren Williams to the Retailer under these Conditions. The Loren Williams Website provides the terms and conditions of sale applicable at the formation of the Contract. In case of any inconsistency between these Conditions and those conditions of sale, these Conditions shall prevail.

9. Limitations on Liability

9.1. Notwithstanding anything in these Conditions, the liability of Loren Williams liability will not be limited or excluded for any matter in respect of which it would be unlawful to do so.

9.2. Subject to Clause 9.1:

(a) Under no circumstances whatever shall Loren Williams be liable to the Retailer, whether in tort (including negligence), breach of statutory duty, contract, or otherwise, for any loss of revenue, profit, goodwill, or anticipated savings; or any loss arising from a secondary or indirect consequence of any act or omission of Loren Williams.

(b) The total liability of Loren Williams to the Retailer in relation to all other damage or loss arising out of or in connection with any contract with the Retailer, whether in tort (including negligence), breach of statutory duty, contract, or otherwise, shall under no circumstances exceed the sum of the Order for the relevant contract, for the entire Term.

9.3. The limitations of liability set out in Loren Williams conditions of sale in force from time to time shall limit the liability of Loren Williams arising out of or in connection with the supply of Products under these Conditions. The Loren Williams Website provides the conditions of sale that apply to the Contract.

10. Commencement, Duration and Termination

10.1. The Contract comes into force in conformity with clause 2.2. and shall remain in effect indefinitely after that time until its termination by either party providing a prior written notice of at least 6 (six) months to the other.

10.2. Without prejudice to any other rights or remedies that either party may be entitled to, one party may give a written notice to the other regarding termination of the Contract immediately in case of:

(a) failure of the other party to pay the amount due under the Contract on the due date for payment and continuance of default for longer than a span of 30 (thirty) days after being given a written notice to make such payment; or

(b) breach by the other party of any of the Conditions, and in case of the breach being remediable, failure to remedy the breach within a span of 30 days of receiving a written notice to that effect; or

(c) suspension by the other party, or threat of suspension, non-payment of debts or inability to pay its debts upon them falling due, or admission of the inability to pay its debts or being deemed to be unable to pay its debts in accordance with section 123 of the Insolvency Act 1986 or suspension or cessation, or threat to suspend or cease, to continue all or a substantial part of its business.

10.3. Without prejudice to any other rights or remedies that Loren Williams may be entitled to, it may terminate the Contract immediately by a written notice in case of:

(a) breach by the Retailer of any of its obligations under clause 3; or

(b) changes in the organisation or methods of business of the Retailer in such a way as in Loren Williams opinion will render it less effective in discharging its duties under the Contract, including but not limited to the obligations pertaining to customer service.

11. Consequences of Termination

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

11.2. No rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination shall be affected by the termination of the Contract. These include the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

11.3. On termination of the Contract, Loren Williams shall have the option to buy any stocks of the Products from the Retailer at such price as Loren Williams reasonably considers to be their current market value, by written notice to the Retailer within 15 (fifteen) days of termination, stating the quantities of Products it wishes to buy. Such Products shall be delivered to Loren Williams by the Retailer within a span of 30 (thirty) days of receiving the notice from Loren Williams, and Loren Williams shall complete the payment for the Products in full within a span of 30 days from their delivery. The costs of packaging, insurance and carriage of the Products shall be borne by the Retailer.

11.4. If Loren Williams opts to not exercise its to buy-back option as provided under clause 11.3, or purchases only a portion of the stocks of Products held by the Retailer, it shall be the obligation of the Retailer to dispose of its remaining stocks of Products as directed by Loren Williams.

11.5. The Retailer shall, at the option of Loren Williams, expeditiously destroy or return all technical pamphlets, advertising materials, samples, catalogues, specifications and other materials, documents or papers that relate to Loren Williams business that the Retailer may have in its possession or under its control (other than correspondence between the parties).

11.6. The termination of the Contract per se shall not make Loren Williams liable to compensate the Retailer in any way, including any compensation for loss of business, profits or goodwill.

11.7. All other rights and licences concerning the Retailer arising out of the Contract shall terminate on the termination date.

12. Dispute Resolution

In the event that any dispute arises between the Parties in connection with these Conditions and the Contract, the construction of any provision of these Conditions and the Contract or the rights, duties or liabilities of the Parties hereto under these Conditions and the Contract, the Parties shall conduct negotiations in good faith to solve such dispute. If mutual resolution cannot be reached within 60 (sixty) days after the commencement of such negotiations, either of the Parties shall be free to refer such dispute to a panel of 3 (three) arbitrators. Each Party shall appoint one arbitrator each and the 2 (two) arbitrators so appointed shall appoint the 3rd (third) arbitrator. The seat and venue of arbitration shall be Scotland. The arbitration proceedings shall be conducted in English. Any award made in such arbitration will be final and binding on the Parties.

13. Waiver

The failure of either Party to enforce, in any one or more instances, performance of any of the terms, covenants or conditions of these Conditions and the Contract shall not be construed as a waiver or a relinquishment of any right or claim granted or arising hereunder or of the future performance of any such term, covenant, or condition, and such failure shall in no way affect the validity of these Conditions and the Contract or the rights and obligations of the Parties hereto. The Parties acknowledge that a waiver of any term or provision hereof may only be given by a written instrument executed by each Party hereto.

14. General Provisions

14.1. These Conditions constitute the entire agreement between the parties and shall operate to the exclusion of all previous agreements, promises, assurances, warranties, representations and understandings between them, whether in writing or oral, relating to its subject matter.

14.2. The resultant agreement shall constitute a personal contract for the Parties, and neither Party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with the rights and obligations arising under this agreement.

14.3. No person other than the Parties to this agreement shall enjoy any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

14.4. The Parties shall, and shall use all reasonable endeavours to ensure that any necessary third party shall, expeditiously deliver all relevant documents and undertake all relevant acts that may be required for bringing this agreement into full effect.

14.5. This agreement and any issue, claim, or dispute arising out of or in connection with it shall be governed by and construed in conformity with the law of Scotland. The Parties hereby agree that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement.

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