TERMS & CONDITIONS

RESELLER AGREEMENT

THIS AGREEMENT is made on the day (Effective Date)

By and between:

Thames and Kosmos UK LP
Company registration number LP016417
Registered address: Towngate House, 2-8 Parkstone Road, Poole, BH15 2PW

and

a company under registration number at
(Customer’)

the parties hereinafter sometimes respectively referred to as a “Party” and collectively as the “Parties”.

IT IS AGREED AS FOLLOWS:

1. Definitions

1.1 “Agreement” means this agreement and any annexes to this agreement.

1.2 “Products” shall mean all Thames & Kosmos consumer imaging products including photo, video, all product manual’s and accessories products produced and distributed under Thames & Kosmos trademarks and listed in the product list that Thames & Kosmos will provide Customer from time to time. Thames & Kosmos may at its sole discretion update the product list to include new or modified models of the Products or where Thames & Kosmos discontinues production of existing Products.

1.3 “Territory” shall mean the UK, Ireland, Republic of Ireland and Chanel Islands.

2. Rights and Relation between the Parties

2.1 Thames & Kosmos hereby grants to Customer a non-exclusive right to market the Products in the Territory.

2.2 Customer hereby accepts such right to market the Products and agrees to act as a non-exclusive reseller (whether as a reseller to end users or as a distributor) of the Products for the term of this Agreement and according to the terms and conditions of this Agreement.

2.3 The relationship between Thames & Kosmos and Customer is respectively that of supplier and reseller (whether as a reseller to end users or as a distributor). Customer recognises its position as an organisation independent of Thames & Kosmos and agrees as such that it shall not act in any way or manner as the legal representative and/or agent of Thames & Kosmos nor shall it make any misleading statement or similar that may cause traders and/or customers to believe that Customer is a legal representative and/or agent of Thames & Kosmos.

3 Order and delivery

3.1 Order
The minimum order value is £250 or one case of equal or higher value.
Product is shipped in cases. Cases cannot be split.
Customer shall place all orders with Thames & Kosmos electronically or in writing, unless otherwise agreed between the Parties. For the avoidance of doubt, electronic communications (email and fax) shall be considered to be “in writing” for the purposes of this clause. Thames & Kosmos can accept orders at its sole discretion either by confirming the acceptance in writing (including by electronic communications) or delivery of the Products.

Customer agrees that all orders and transactions contemplated under this Agreement shall be governed by the terms and conditions of this Agreement.

Customer may cancel or change any order or any part thereof by written notice to Thames & Kosmos via email orders@thamesandkosmos.co.uk, 72 hours prior to the agreed delivery slot for that order. Upon any change, the price payable under the relevant order will be adjusted to take full account of the changes.

3.2 Delivery

3.2.1 Thames & Kosmos delivers the Products to the UK Customer warehouse location designated in the relevant purchase order, provided that each purchase order will only require delivery to one warehouse.

Customer must ensure that its warehouse is capable of receiving all shipments, regardless of whether they are loose cartons or palletised shipments.

3.2.2 Customer will confirm by signing the delivery note on receipt of the shipment that the pallets delivered conform to the shipping documents. Any claim by the Customer for visual transportation damages (i.e. those which are immediately visible before any unpalletisation or other unloading or unwrapping) must be made immediately in writing on the delivery note, and any claims for concealed transportation damages must be notified via email to sales@thamesand kosmos.co.uk no later than 14 days after date of delivery.

Any shortages or discrepancies in the quantities must be notified to Thames & Kosmos within 14 days after delivery.

International truck deliveries will be made under a CMR (the Convention on the Contract for the International Carriage of Products by Road). National truck deliveries shall be made under a local transport document, where applicable.

All other delivery and returns issues will be dealt with in accordance with clause 6 below.

3.2.3 Depending on the weight and volume of the Products ordered, Thames & Kosmos will adopt appropriate packing. For smaller shipments comprising a few loose cartons these will be sent by courier. For larger shipments these may be packed on pallets and shipped by truck.

3.3 Thames & Kosmos shall not be responsible for any commitments that the Customer makes to its customers, including but not limited to those regarding quantities to be delivered or delivery dates.

4. Price and payment terms

4.1 Thames & Kosmos official prices, valid at the date of order, shall apply. The prices of the Products are exclusive of all discounts taxes and fees.

4.2 Thames & Kosmos shall be entitled to raise an invoice for Products prior to dispatch to the Customer of those relevant Products. Unless otherwise agreed in writing the total correct amount shown due on such invoice will be due for payment prior to delivery. Once cleared funds have been received goods will be despatched or released for collection. This agreement may only be varied by agreement in writing between the parties.

In the event of any dispute relating to an invoice, Customer shall notify the details of the dispute to Thames & Kosmos as soon as reasonably possible and in any case no later than 15 days after the date of the invoice, and shall pay to Thames & Kosmos the undisputed portion of the invoice in accordance with the payment terms set out in this clause 4. If the dispute is notified more than 15 days after the date of the invoice, Customer shall pay the entire disputed invoice but shall thereafter receive credit for any amount determined to have been incorrectly invoiced within 14 days after the date on which the amount is determined to have been incorrectly invoiced.

4.3 Customer shall bear any bank charges associated with electronic transfer of funds such that full invoice amounts clear into Thames & Kosmos account.

4.4 If payment is not received in full within the specified terms Thames & Kosmos reserves the right to (i) cease to supply the Customer until such time as all monies owed are paid in full; and (ii) enforce the statutory provisions laid down in the Late Payment of Commercial Debts (Interest) Act 1998 and supporting regulations (as amended)

4.5 Unless otherwise specified in this Agreement (and in particular at Clause 12):

4.5.1 Thames & Kosmos must issue to Customer credit notes within 21 days after the date of return for all Products returned by the Customer in accordance with this Agreement; and

4.5.2 If Thames & Kosmos fails to issue any agreed credit within the prescribed time period, Customer shall be entitled to deduct it from the next payment.

5. Retention of title

5.1 Risk for all Products delivered to Customer will pass to Customer on delivery.

5.2 Title and ownership of the Products shall not pass to Customer until Customer has paid in full for the relevant Product. property, In respect of Products which remains Thames & Kosmos property. Customer may sell the Product in the ordinary course of business.

5.3 In the event of Customer’s insolvency, Thames & Kosmos will provide Notice to the Customer for delivery up of any Product in which Thames & Kosmos have title and which are still in the Customer’s possession within 30 days of the date of the Notice.

5.4 In the event that any payment remains overdue and unpaid by the Customer, Thames & Kosmos will provide Notice to the Customer requiring such non-payment to be remedied within 14 days of the date of Notice.

5.5 Where the Customer fails to comply with any Notice issued in accordance with 5.3 and/or 5.4 above , Thames & Kosmos may apply, without further notice, for a Court Order for delivery up of Products to the value of any outstanding amount due to Thames & Kosmos at that time including any costs of obtaining such an order.

6 Returns

Except as expressly provided for below in respect of Mis-delivered Products, Damaged Products, Defective Products and any Products subject to a product recall by Thames & Kosmos, Thames & Kosmos will not accept the return of Products unless Thames & Kosmos have been notified within a period of 14 days from date of delivery. Any problems in relation to condition or mis delivered goods needs to be reported via email within 14 days to orders@thamesandkosmos.co.uk

6.1 Mis-delivered Products

The Customer may return any mis-delivered Products to Thames & Kosmos at Thames & Kosmos expense. Thames & Kosmos will issue the Customer with a credit note for such returns within 14 days of the date of the return. The Customer will notify Thames & Kosmos of any mis-delivered Products within 14 days of delivery and Thames & Kosmos shall collect such Products from the Customer promptly upon notification by the Customer that they have been made available for collection. For the purpose of this clause mis-delivery shall mean any good that is (i) delivered that was not ordered or (ii) an overage of a particular item in an order or (iii) any good delivered to an address other than the Customers warehouse unless previously agreed.

6.2 Damaged Products

The Customer shall be entitled to return damaged Products, identified in accordance with Clause 3.2.2 as Products damaged in transportation, at Thames & Kosmos expense. Thames & Kosmos will issue the Customer with a credit note for such returns within 14 days of the date of the return. Thames & Kosmos shall collect such Products from the Customer promptly upon notification by the Customer that they have been made available for collection by Thames & Kosmos..

6.3 Alteration to kits
We supply educational toys / kits mainly in the English speaking market which are accompanied by instructions in the English language only. The English instructions have been tested and reviewed very carefully and both the components included in our educational toys / kits and the text of the instructions are in conformity with English law.

We call your attention to the fact that you are not permitted to make changes in the design and the features by adding new components or sequences to the instructions of our educational toys / kits. Moreover, we cannot assume any obligation to guarantee the translation of such changes. Therefore, you shall be responsible for correcting errors and responding to customer complaints. We assume no liability for such errors or complaints arising from translations into other languages.
Further, as importer of our products you also assume responsibility to translate the texts to the language of the Country or state in which you are selling the products and you accept full liability for this.

7. Marketing

7.1 While marketing the Products or performing any related activities, Customer may not undertake anything that may directly or indirectly damage Thames & Kosmos good name and reputation or its marketing possibilities of the Products

7.2 Customer may market the Products using Thames & Kosmos name trademarks, service marks and trade names to the extent reasonably necessary to market the Products. Thames & Kosmos has the right to request removal or amendment of marketing material at the Customer’s cost where such material does not, in the reasonable opinion of Thames & Kosmos, conform to all and any reasonable brand guidelines provided by Thames & Kosmos. Neither party shall acquire any rights in the trademarks, service marks or trade names of the other by virtue of this Agreement except as set out in this Agreement.

7.3 Thames & Kosmos will where , for each Product, supply Customer with the catalogue information required by Customer.

8. Intellectual property rights

8.1 Customer acknowledges that any and all of the patents, designs, trademarks, copyrights., will remain the sole property of Thames & Kosmos. Nothing in this Agreement to which they are applicable shall be construed as granting or conferring to Customer any assignment of or rights by license or otherwise, expressly, impliedly or otherwise for such patents, designs, trademarks, copyrights, other proprietary rights, other than as necessary to carry out any activities required under the express provisions of this Agreement.

8.2 Customer agrees that it shall not affix on the Products or directly associate with the Products any other trade name and/or trademark in the course of the sale, advertisement or promotion of Products by the Customer whatsoever .

8.3 Customer agrees not to adopt any trademark, service mark, trade name, logotype or other mark which is likely to be similar to or confusing with Thames & Kosmos trademarks or trade names nor take any action which reduces or impairs Thames & Kosmos rights therein. Customer further agrees that it shall use all reasonable endeavours not to sell any product which counterfeits any of the Products (i.e fake products) or any infringing Products (parallel imports) and that it shall immediately report to Thames & Kosmos if it finds any infringement of Thames & Kosmos trademarks or trade names

8.4 In the event that any claim by a third party is brought against Customer, its customers and/or end-users of any Products alleging that such third party’s patent, design, copyright, trademark or other proprietary right is infringed in the Territory in relation to the use, sale, display or other disposition of the Products or associated Content supplied by Thames & Kosmos to Customer hereunder, Thames & Kosmos shall at its expense defend and/or settle such claim and shall indemnify Customer against any cost, legal fees, other expenses and damages required for such defence or settlement whether or not such claim is successful; provided, however, that Customer shall promptly notify Thames & Kosmos in writing of such claim and furnish copies of all letters and all other documents relating to the allegation of infringement and Thames & Kosmos shall be given full authority to defend and settle such claim, action or allegation of infringement, Customer agrees to provide its reasonable assistance and/or co-operation to Thames & Kosmos in such defence and/or settlement. For the avoidance of doubt, Thames & Kosmos will not make any admission of liability on behalf on customer without first obtaining the Customer’s prior written consent.

Notwithstanding the foregoing, Thames & Kosmos shall not be obliged to defend or settle or be liable for cost, legal fees, other expenses or damages, if the infringement claim arises out of any addition to or modification of the Products or any combination of the Products with other products or services after delivery by Thames & Kosmos or from the use of the Products in the practice of a process or system which is not intended by Thames & Kosmos.

8.5 If any infringement claim is brought against Customer, its customers or the end-users and/or Thames & Kosmos or if in Thames & Kosmos opinion a type of the Products is likely to become the subject of a claim of infringement or violation of any patent, design, copyright, or other proprietary right of any third party, Thames & Kosmos may either modify the Products or obtain all necessary licences or otherwise take any other reasonable action that will prevent such infringement. Such action may be to replace the infringing Product with a non-infringing Product of similar performance or modify the Product in order to make them non-infringing. If such actions are not possible, notwithstanding Thames & Kosmos efforts, then:

8.5.1 Thames & Kosmos shall be entitled, in spite of any provisions hereof and without any breach hereof, to discontinue further supply of the Products; provided, however, that before choosing such discontinuation, Thames & Kosmos agrees to enter into discussions with Customer in good faith to determine whether a mutually acceptable agreement for continuing the supply of the Products to Customer can be agreed upon between the Parties; and/or

9. Selling through third parties

9.1. Thames & Kosmos do not allow Customer to sell on third party retail platforms.

These platforms include, however are not limited to www.amazon.co.uk www.ebay.co.uk www.play.com . This condition also applies to any subsidiaries in the UK or Europe.
If a customer is found to be selling Thames & Kosmos products on any of aforementioned platforms, Thames & Kosmos will issue the Customer with a warning and allow the Customer 10 days to remove their offers. If after 10 days of this warning the Customer is still offering goods for sale through the third party retail platform, Thames & Kosmos will no longer supply the Customer and any outstanding accounts will be due for immediate settlement.

10. Warranties, Indemnities and Limitations of Liability

10.1 Thames & Kosmos represents and warrants that all Products will at the time of delivery, comply with all statutory and regulatory requirements in force at the time of supply of the Products;

10.2 Without prejudice to anything else set out in this Agreement, Thames & Kosmos will defend, any fraud or deceit or any negligent act or omission of Thames & Kosmos, its employees or agents; and

10.3 Save as set out elsewhere in this Agreement (and in particular clause 8 and this clause 10):

10.3.1 Each Party’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement shall be limited to the amount of the monies payable by the Customer to Thames & Kosmos hereunder over the previous 12 months; and;

10.3.2 All other liability to each other and all third parties is to the fullest extent permitted by law, excluded from this Agreement. In particular, neither Party shall be liable to the other for any pure economic loss, loss of profit, loss of business, loss of opportunity, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with this Agreement.

10.3.3 Except as otherwise set out in this Agreement, all warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Products Act 1979) are, to the fullest extent permitted by law, excluded from this Agreement.

10.3.4 Except as otherwise set out in this Agreement, this clause sets out the entire financial liability both parties (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other in respect of:
(i) Any breach of this Agreement;
(ii) Any representation, statement or tortious act or omission including negligence arising under or in connection with this Agreement.

10.4 Nothing in this clause excludes or limits the liability of either Party for:

10.4.1 for death or personal injury caused by that Party’s negligence; or

10.4.2 under section 2(3), Consumer Protection Act 1987; or

10.4.3 for any matter which it would be illegal for the Party in question to exclude or attempt to exclude its liability; or

10.4.4 for fraud or fraudulent misrepresentation.

11. Term and termination of the Agreement

11.1 Either party may terminate this Agreement at any time without cause by giving the other at least 60 days prior written notice. In the event of termination or expiry of this Agreement, Thames & Kosmos must deliver all Products required for completion of all orders received by it from Customer prior to termination of this Agreement until termination or expiry, all subject to the terms of this Agreement.

11.2 It is hereby agreed that upon early termination of this Agreement as provided for herein, neither Party shall be entitled to any indemnity or goodwill remuneration from the respective other Party.

12. Termination for Cause

12.1 This Agreement may be terminated by:

12.1.1 Either Party, if the other Party commits a material breach of this Agreement, provided that a written notice has been given to the other Party of the alleged breach and the other Party has not remedied the breach within thirty days after the date of the notice;

12.1.2 Either Party automatically and without notice, if the other Party ceases to function as a going concern, becomes insolvent, makes an assignment for the benefit of creditors, files a petition for bankruptcy, permits a petition to be filed against it, or admits in writing its inability to pay its debts or if a receiver is appointed for a substantial part of its assets; and

12.1.3 Thames & Kosmos, automatically on 30 days notice, if the Customer knowingly (despite all reasonable efforts to ensure Products are not counterfeit) sells any Thames & Kosmos product which counterfeits any of the Products (i.e fake products) or otherwise knowingly infringes or challenges Thames & Kosmos intellectual property rights including, but not limited to, Thames & Kosmos trademark rights.

12.2 Consequences of early termination of this Agreement:

12.2.1 As soon as the last Products have been sold by it, the Customer shall immediately stop using any Thames & Kosmos signs, names or any other distinctive character that Customer was allowed to use under the terms of this Agreement, except as may be permitted by law;

12.2.2 Where this agreement is terminated by Thames & Kosmos pursuant to clause 12.1, Customer shall immediately pay all outstanding amounts owed to Thames & Kosmos (less any credits or other amounts due to Customer by Thames & Kosmos), and where this agreement is terminated by the Customer pursuant to clause 12.1, usual payment terms shall apply;

12.2.3 Neither party shall be released from any of its obligations incurred prior to the date of termination; and

12.2.4 Where Thames & Kosmos terminates under clause 12.1(iv), Customer shall deliver up to Thames & Kosmos or otherwise destroy or deal with as per any agreed undertaking all counterfeit products (i.e fake products) or other products which infringe the trademarks of Thames & Kosmos which are in Customer’s possession and provide all information and documentation about such activities as reasonably requested by Thames & Kosmos or as per any agreed undertaking.

13. Miscellaneous

13.1 Entire Agreement

This Agreement and any Schedules and Appendices attached hereto, constitutes the entire agreement between Thames & Kosmos and Customer and supersedes and replaces, effective on the date first set forth above, all other agreements, understandings and commitments between the Parties as to the subject matter hereof. This Agreement may be amended only by a written instrument signed by duly authorised representatives of the Parties and expressly stating that it is an amendment to this Agreement.

13.2 No waiver

Failure on any occasion by either Party to enforce any provision of this Agreement shall in no way prevent enforcement of that provision or any other provision on any future occasion.

13.3 Severability

In the event any provision of this Agreement shall be determined to be invalid, illegal or unenforceable in any respect, under any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected or impaired.

13.4 Force Majeure

Neither Party shall be in default on any obligation hereunder if such default results from governmental acts or directives (official and unofficial), acts of God, war (declared or undeclared), insurrection, riot or civil commotion, fires, flooding or water damages, explosions, or embargoes which is not within the reasonable control of the Party affected. If a Party is prevented from complying with its obligations under this Agreement due to force majeure, it shall notify the other Party thereof in writing without delay. When the non-fulfilment by any reason set out in this clause is prolonged beyond fourteen (14) months, this Agreement may be terminated by notice in accordance with this Agreement at the option of the Party hereto other than the one who has discontinued fulfilment hereof.

13.5 No assignment

Neither Party shall assign, transfer, or otherwise dispose of this Agreement in whole or in part to any individual, firm or corporation without the prior written consent of the other Party, except that Thames & Kosmos shall have the right to transfer this Agreement, or parts of this Agreement, to its parent, subsidiary or affiliated company by giving Customer a two (2) months prior written notice.

13.6 Export

Customer guarantees to comply and do all things necessary to comply with all applicable export control laws, regulations and ordinances, including but not limited to the Export Administration Act 1979 of the USA and any applicable national or EU laws and regulations, as amended, and their implementation regulations, insofar as they relate to the activities to be performed under this Agreement. Customer shall not export the Products to any country specified in such laws or regulations as a prohibited destination without first obtaining an appropriate governmental approval and shall not resell the Products to a purchaser knowing (or being given reasonable grounds to suspect by the purchaser) that the purchaser intends to export the Products without first obtaining such licenses. The Customer shall impose on persons purchasing the Products obligations corresponding to those set out above.

13.7 Notice

All notices required or permitted to be sent by the terms of this Agreement shall be sent by either registered or certified mail, return receipt requested, or to the Legal Department of Customer at the their respective addresses first written above or any other address duly notified to other Party.

13.8 Governing Law and Jurisdiction

This Agreement and the individual contracts of sale concluded under this Agreement shall be governed by the laws of England and Wales excluding the UN convention of the Sale of Products. All disputes arising out of this Agreement, including but not limited to its conclusion and termination, and the individual contracts of sale concluded under this Agreement shall be subject to the exclusive jurisdiction of the competent courts of England and Wales.

13.9 Data Protection

Each Party undertakes to comply with all applicable laws and regulations about data protection under the laws of England and Wales. In connection with business relations between the Parties, the processing and disclosure of personal data within the meaning of the Data Protection Law is inevitable.

13.10 Third Party Rights

A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.

13.11 Right of offset

Except as expressly set out elsewhere in this Agreement, all amounts due under this agreement shall be paid in full without any deduction or withholding other than as required by law.