DISTRIBUTION AGREEMENT
1 DEFINITIONS
In these terms and conditions:
- «Agreement» means these Terms and Conditions and the Commercial Terms.
- «Applicable Law(s)» means all statutes, codes, ordinances, decrees, rules, regulations, municipal by-laws, judicial, administrative, ministerial, governmental or regulatory judgments, orders, decisions, rulings or awards and restraints, or any provisions of the same, including general principles of common and civil law binding on the parties in accordance with Clause 13.
- «Commercial Terms» means the commercial stipulations applicable to the Distribution’s Program as may be provided by CONSELF OR as may appear on a CONSELF URL from time to time and is incorporated in this document by reference.
- «Confidential Information» means all information relating to the trade secrets, operations, processes, plans, intentions, product information, know-how, designs, market opportunities, transactions, affairs and/or business of CONSELF.
- «CONSELF» means the CONSELF company, as above identified, with which the Distributor contracts as indicated in the Commercial Terms.
- «Discount» means the percentage margin off the current CONSELF Price List as stated in the Commercial Terms OR such quote that CONSELF may provide.
- «Distributor Program» means the program provided by CONSELF for its Distributors as amended by CONSELF from time to time.
- «End User» means an unaffiliated, third party customer of the Distributor who is a party to a Licence to whom any Service is provided for use in the regular course of such person’s or entity’s internal business or personal use and not for resale or sublicensing by such person or entity.
- «Hardware» means the CONSELF Services hardware itself, together with any related components.
- «Intellectual Property Rights» means copyright, confidential information, know-how, trade names, Trade Marks, patents, designs, database rights and any other intellectual property rights in any country, whether registrable or not and whether registered or not.
- «Licence» means the End User licence(s) or agreement(s) applicable to the Services provided by CONSELF.
- «Personal Information» shall mean personally identifiable information or data concerning or relating to individuals which is collected or received in the performance of Distributor’s obligations under this Agreement, including but not limited to credit card or other financial account information, emails, email addresses, pass codes, addresses, social security numbers, driver’s license numbers, or other personal information regulated by Privacy and Data Security Regulations.
- «Price List» means the current CONSELF price list provided by CONSELF to Distributors and/or any subsequent amendments established by CONSELF from time to time. The currently applicable price list is included as Appendix 2. Price changes will be advised at least 90 days before they come into effect. The Distributor may establish price changes, in agreement with the price list and discount provided, as it sees fit in the territory. The Distributor must provide to Conself with a copy of its current selling price list within 90 days of establishing new prices.
- «Privacy and Data Security Regulations» shall mean Applicable Laws which are relevant to the processing, security, use or disclosure of Personal Information.
- «Service(s)» means the services to be supplied by CONSELF to the Distributor under this Agreement, as listed in the Price List as such may be amended by CONSELF from time to time, together with the Service Documentation and any of the Upgrades and Updates to which the End User is entitled in accordance with the applicable Licence.
- «Service(s) Description» means the description of the Services describing the facilities and functions as supplied by CONSELF to the Distributor from time to time.
- «Service(s) Documentation» means literature provided by CONSELF to the Distributor from time to time relating to the Services for use by End Users in conjunction with the Services.
- «Service(s) Licence» means CONSELF’s current standard Service Licence agreement under which the Services (and their related documentation and any updates to them) are licensed.
- «Quarter» means each successive period of three calendar months following the Start Date until the following 31 March, after which Quarter shall mean each successive period of three calendar months thereafter.
- «Quarter Date» means the last day of a calendar Quarter.
- «Sanctions and Export Control Laws» means any law, regulation, statute, prohibition, or wider measure applicable to Services, Products and/or to either party relating to the adoption, application, implementation and enforcement of economic sanctions, export controls, trade embargoes or any other restrictive measures.
- «Start Date» means the date on which entries into force after that CONSELF accepts the Distributor’s offer to contract under the terms and conditions contained herein.
- «Target» means the Distributor’s sales and other related targets as set out in the Commercial Terms (as applicable to the Distributor’s status) and/or as notified by CONSELF to Distributor from time to time, whether quarterly, annual or other targets, as applicable.
- «Territory» means the geographic area to which this Agreement and the appointment of the Distributor apply. For the avoidance of doubt: i) if the Distributor has its registered office in the European Union, then territory shall mean the European Union; or ii) if the Distributor has its registered office outside of the European Union then territory shall mean any country that CONSELF may notify to the Distributor.
- «Trade Marks» means any Trade Marks and service marks in respect of which registrations have been filed, and registrations obtained in some cases, with the appropriate official industrial property registry, trade names, logos, emblems, trade dress and other insignias of origin, and other commercial symbols which CONSELF now or hereafter is authorized to use and does use or authorizes others to use to identify its Services or Products.
- «Update» means an update to the library of rules and/or identities made available to the End User by CONSELF and/or other updates to the software.
- «Upgrade» means any enhancement or improvement to the functionality of the Licensed Service (excluding Updates) made available to the End User by CONSELF at its sole discretion from time to time but excluding any software and/or updates marketed and licensed by CONSELF as a new version or new release of the Licensed Service.
2 SCOPE
2.1 CONSELF hereby appoints the Distributor as an independent and non-exclusive representative reseller of the Services to End Users, and the Distributor accepts the appointment subject to the terms and conditions herein. The Distributor is and will be an independent subject and in his activity of distribution will be subject to the rules and the spirit of the present Agreement This Agreement is a framework agreement which sets out the terms and conditions under which the Distributor may place orders with CONSELF or its local subsidiary (as determined in the Commercial Terms).
3 SUPPLY OF SERVICES AND PAYMENTS
3.1. CONSELF will license the Services in accordance with the terms of the applicable Licence, the current forms of which are reproduced at https://conself.com/privacy-nda-and-sla/. For the avoidance of any doubt, Distributor acknowledges that CONSELF may contact and communicate with the End User directly with respect to CONSELF’s obligations and the End User’s ongoing use of the Licensed Services both during and after termination or expiry of this Agreement.
Clauses 3.2 to 3.7 inclusive only apply if the Distributor purchases from CONSELF directly. If the Distributor purchases via an authorised third party distributor, commercial terms will instead be agreed between the Distributor and such distributor.
3.2 CONSELF will provide the Services to the Distributor in accordance with orders placed by the Distributor on these terms. This Agreement is non-exclusive and CONSELF may therefore supply Services to third parties in the Territory. Orders placed by the Distributor purporting to include any additional or other terms will not be accepted by CONSELF. Any quotations provided to the Distributor by CONSELF are invitations to treat only and are not capable of acceptance. CONSELF reserves the right to correct or amend quotations at any time. CONSELF will not be bound by any order until CONSELF has acknowledged the order.
3.3 The price charged by CONSELF to the Distributor for the Services will be the agreed Price List price at the time of the order less the Discount and/or incremental discounts offered to the Distributor in conjunction with the order. Unless specified otherwise in the Commercial Terms, prices are Ex-Works and do not include value added tax or the cost of handling, carriage and insurance which shall be borne by the Distributor.
3.4 Distributor acknowledges and agrees that, notwithstanding any additional discount that may be stated in a written quotation, the Discount is intended as compensation for material effort by Distributor throughout the process of a sale of Services to End User(s), including without limitation support, demo and basic training.
3.5 All orders must be prepaid. In some cases the payment can be deferred but always made in advance with respect to the period of reference. If permitted by Applicable Law, any delay in making payment shall automatically entitle CONSELF to suspend the Service of reference.
3.6 Unless otherwise agreed in writing by CONSELF, CONSELF will use reasonable efforts to make the Services available to the Distributor or to the End User as specified on the Distributor’s purchase order, within 14 working days from the receipt of the Distributor’s payment. The Service Start Date will be set to the day in which the Service will be made available.
3.7 For the avoidance of doubt CONSELF will not:
3.7.1 offer refunds if an End User’s Licence is terminated early for any reason; or
3.7.2 offer refunds and/or credits if any End User fails to pay the Distributor.
3.8 Where the Distributor has made an order for a Service and CONSELF has accepted such order, the Distributor shall be liable for payment for such Service whether or not payment has been received by the Distributor from the End User.
3.9 CONSELF Cloud Simulation may be available for evaluation via trial periods or free plans. Distributor shall ensure that an End User who wishes to evaluate a Service signs up for the evaluation plan available at URL: https://conself.com/product/subscriptions/.
3.10 If not otherwise agreed, all products purchased from CONSELF must be paid in advance. Money transfer with no extra cost to CONSELF shall be made to the bank account that will be specified. Once, a longer period for payment has been set, e.g. 30 days counted from date of invoice, money transfer with no extra cost to CONSELF shall be arranged strictly within 30 days, counted from date of invoice. Interest rate will be at 8% above ECB (The European Central Bank or Banca d’Italia) base rate. This is chargeable the last day of each calendar month for all over due invoices. In the event that the DISTRIBUTOR fails to pay any amount when due, CONSELF reserves the right to put delivery or repairs on hold until the due amount has been balanced.
4 DISTRIBUTOR’S OBLIGATIONS
During the term of this Agreement, the Distributor shall at all times observe and perform the terms of this Agreement and, in particular, the Distributor shall:
4.1 use reasonable endeavours to renew CONSELF licences in a timely fashion, and specifically (but without limitation) the Distributor shall contact End User(s) who have not renewed their CONSELF licences prior to the expiry of the End User’s licence;
4.2 not make any promises or representations, or give any warranties, guarantees or indemnities in respect of the Services except such as are contained in the relevant Licence, or as otherwise expressly authorised by CONSELF in writing;
4.3 not hold itself out as having any authority whatsoever to agree any changes of any kind to the Licence terms; The DISTRIBUTOR can not appoint, without under previous written authorization of CONSELF, independent sub-distributors to promote and sell CONSELF PRODUCTS in the TERRITORY. Such agreement shall be bound by the terms of this AGREEMENT.
4.4 use CONSELF’s Trade Marks and trade names relating to the Services only in the registered form or style notified to the Distributor in writing by CONSELF and shall not use such trade marks or trade names in connection with any other services or as part of the corporate or any trade name or any Internet domain name of the Distributor and shall not alter, obscure, remove, interfere with or add to any of the trade marks, trade names, markings or notices affixed to, or contained in, the Services Documentation delivered to the Distributor;
4.5 not duplicate or reproduce in any way any CONSELF copyright material without the prior written consent of CONSELF;
4.6 deal with any complaints, problems or other technical queries regarding the Services from End Users before making use of the CONSELF email and Skype helpdesk;
4.7 not make or disseminate any disparaging comments and/or statements concerning CONSELF’s Service(s) or market, distribute, license or sell any CONSELF Service in a manner that is likely to cause harm to, or diminish the value of, the CONSELF brand;
4.8 ensure that any and all emails sent by Distributor with regard to CONSELF Services are sent with the clear permission of the recipient in compliance with Privacy and Data Security Regulations and Distributor hereby acknowledges and agrees that sending e-mails with regard to CONSELF Services in a manner which is not in compliance with the Privacy and Data Security Regulations is expressly prohibited and that breach of this clause may be considered cause for termination of this Agreement;
4.9 not incorporate or integrate the Services in or on any other hardware or software products without notifying its local CONSELF representative and signing the appropriate MSP Agreement;
4.10 not use the Services for the purposes of competing with CONSELF, including without limitation the gathering of competitive intelligence;
4.11 Distributor acknowledges and agrees that if it is in breach of any of its obligations set out above in this clause 4, CONSELF may, at its sole option and without limiting any other remedies available to it under applicable law, upon notice to distributor: (i) terminate this agreement; or (ii) cease to perform its obligations set forth in clause 5.3 and/or reduce or remove distributor’s status and/or reduce distributor’s discount.
5 CONSELF’S OBLIGATIONS
CONSELF will:
5.1 maintain an email and Skype helpdesk offering technical support services for the Services, subject to clause 4.6. Such service will be generally available 24 hours each day;
5.2 use reasonable efforts to continue to develop, upgrade and enhance the Services to maintain their marketability and competitiveness; (CONSELF) will also provide appropriate instructions and / or service manuals for confidential use.
5.3 be responsible for tracking the Subscription expiration date and notifying the Distributor and/or the End User.
6 INTELLECTUAL PROPERTY
The right of the Distributor to use any of the Intellectual Property Rights owned by CONSELF is only granted to the extent expressly provided for in this Agreement.
7 CONFIDENTIALITY
7.1 The Distributor shall keep all Confidential Information strictly confidential and shall not disclose any Confidential Information to a third party, other than as is necessary for the Distributor’s performance of its obligations under this Agreement (in which case the Distributor shall ensure that such third parties keep the Confidential Information confidential and do not disclose or use any of the Confidential Information other than in accordance with the proper performance of this Agreement). This includes (but it is not limited to) private Commercial Terms agreed with CONSELF such as Discounts, Price Lists, Targets, Program.
7.2 Clause 7.1 shall not apply to any Confidential Information to the extent that it comes within the public domain other than through breach of clause 7.1; is required or requested to be divulged by any court, tribunal or governmental authority with competent jurisdiction; or is known to the Distributor at the date of this Agreement or becomes known to it free from any duty of confidence.
7.3 This clause 7 shall continue in force for a term of five (5) years after and despite the expiry or termination of this Agreement, whatever the reason for termination.
8 DATA SECURITY AND USE OF PERSONAL INFORMATION
8.1 Personal Information shall be treated as Confidential Information here under.
8.2 Distributor shall collect and process Personal Information in accordance with the Privacy and Data Security Regulations.
8.3 Distributor represents that Distributor’s data protection policies and practices are, and will be maintained, at a minimum in accordance with standard industry practices applicable to data protection, information security, and privacy.
8.4 Distributor shall provide immediate written notice of any unauthorized access, use or disclosure of Personal Information or any security breach that could affect CONSELF or End Users or could impact the activities to be performed under this Agreement. In such event, Distributor shall immediately take remedial action as required by the Privacy and Data Security Regulations and as requested by CONSELF.
8.5 Distributor warrants that it has obtained all necessary consents to provide End User Personal Information to CONSELF for the purpose of performing this Agreement.
8.6 Distributor shall upon reasonable request provide appropriate evidence of Distributor’s compliance with this Clause 8.
9 DISTRIBUTOR’S STATUS
9.1 The Distributor shall be appointed as an independent contractor and this Agreement shall not constitute a joint venture or partnership between the parties and (other than expressly as provided in this Agreement) the Distributor shall not hold itself out as CONSELF’s agent.
9.2 Nothing in this Agreement shall preclude the Distributor from acting as an agent for the End User, including (without limitation) accepting the Licence on the End User’s behalf where the Distributor setup and/or prepare the Services on the End User’s behalf.
10 DURATION AND TERMINATION – conditions and effects
10.1 This Agreement will commence on the Start Date and continue for an initial term of twelve (12) months. Thereafter this Agreement shall automatically continue unless and until either party terminates this Agreement on no less than thirty (30) days’ written notice.
10.2 Either Party may terminate this Agreement on immediate written notice if the other party materially breaches this Agreement and fails to correct the breach within fourteen (14) working days following written notice from the other party specifying the breach and requiring the breach to be remedied or (to the extent permitted by Applicable Laws) becomes insolvent or suffers any insolvency related event.
10.3 The duration of this Agreement shall be unlimited, except as terminated by one of the parties, based on the following conditions:
With immediate effect in case of bankruptcy, composition, suspension of payments, dissolution, liquidation or similar situation by one of the parties.
With immediate effect in case of violation of any of the terms of this Agreement by one of the parties. The other party may terminate this Agreement by written notice of such non-compliance.
With 180 days prior notice by either party in writing, without any cause.
10.4 Termination of this Agreement by CONSELF in accordance with its terms shall not give the Distributor any right to compensation, damages, loss of profits or prospective profits, or consequential losses of any kind or nature whatsoever, and in no circumstances shall the Distributor acquire against CONSELF any goodwill in respect of its appointment as Distributor or in respect of the Services or their distribution or sale, or otherwise under or in respect of this Agreement.
10.5 Upon the expiry or termination of this Agreement the Distributor shall return to CONSELF all promotional and commercial material, including any Services access data, evaluation copies, Services Documentation, Services Descriptions and all literature and other materials supplied free-of-charge or on loan or consignment to the Distributor by (or for) CONSELF.
10.6 Upon the expiry or termination of this Agreement all End User(s) managed by the Distributor shall be assigned to CONSELF who will take the Distributor place. CONSELF maintains the right to re-assign these End User(s) to other Distributors.
11 WARRANTIES AND LIABILITY
11.1 CONSELF Services warranty is reported on CONSELF website at the URL: https://conself.com/privacy-nda-and-sla/.
11.2 Except for the express warranties and indemnities given by CONSELF in this Agreement and without prejudicing CONSELF’s liability for fraud, to the maximum extent permitted by Applicable Laws, CONSELF gives no warranty, undertaking, indemnity or other comfort and makes no representation of any kind (whether express, implied, under statute, custom or otherwise) in relation to the Services, including without limitation:
11.2.1 as to their satisfactory quality or fitness for a particular purpose;
11.2.2 that the Services will meet the Distributor’s or the End Users’ requirements; or
11.2.3 that the Services will be error free and/or operate without interruption.
11.3 Subject to clause 11.5, and to the extent permitted by Applicable Laws, the aggregate liability of CONSELF to the Distributor for any matter arising under or in connection with this Agreement in any year, whether arising from contract, negligence or otherwise, shall be limited to the greater of €40,000 Euro (or this equivalent in local currency) OR the amounts paid by the Distributor to CONSELF under this Agreement in the preceding twelve months.
11.4 Notwithstanding clause 11.3, but subject to clause 11.5, and to the extent permitted by Applicable Laws, CONSELF shall not be liable to the Distributor for any claim for damage to, or loss of or costs in respect of any consequential, incidental or resulting damages, any loss of profit, revenues, goodwill, business opportunities or pure economic loss (in each case whether the loss is direct or indirect) or any claims made by End Users against the Distributor.
11.5 Notwithstanding anything to the contrary in this Agreement CONSELF’s liability to the Distributor:
11.5.1 for death or personal injury caused by the negligence of CONSELF; and
11.5.2 for fraud is not limited, in each case including where such acts defaults or omissions were attributable to CONSELF, its employees or agents.
11.6 This clause 11 has continuing effect after termination of this Agreement.
12 GENERAL
12.1 Amendments. This Agreement represents the entire terms agreed between the parties in relation to its subject matter, and supersedes all previous contracts or arrangements (if any) between the parties relating to its subject matter. Save as provided by Clause 12.2, this Agreement may only be revised in writing signed by an authorised representative of each of the parties.
12.2 CONSELF reserves the right to unilaterally modify the services, the price list and the terms and conditions of this agreement (including without limitation the commercial terms) at any time by notice. Notice includes, but is normally not limited to, posting details at https://conself.com/cloud-cfd-distribution-agreement/ and/or email announcements sent to Distributor representatives. Following receipt of such notification, the Distributor may terminate the Agreement within thirty (30) calendar days if the Distributor objects to the notified changes. Failure to terminate within such period shall mean that the Distributor expressly and unreservedly accepts all the amendments contained in the notice, which shall take effect immediately upon expiry of said thirty (30) calendar day period.
12.3 Regulatory Requirements.
The Distributor hereby agrees that:
12.3.1 it will comply, and will ensure that its relevant personnel comply, with all applicable Sanctions and Export Control Laws including, without limitation, to ensure that the Services, in any form, are sold, supplied, imported, exported, re-exported, transferred, used, disclosed and/or transported only in accordance with all applicable Sanctions and Export Control Laws;
12.3.2 it will immediately notify CONSELF if it becomes aware that it or any of its personnel may have breached any applicable Sanctions and Export Control Laws;
12.3.3 it will not supply any CONSELF Service, in any form, directly or indirectly, to any person or entity based in countries subject to embargo by EU for software products;
12.3.4 it will indemnify and hold CONSELF harmless from and against any claim, loss, liability or damage suffered or incurred by CONSELF resulting from or related to Distributor’s breach of this clause, and that breach of this clause may be considered cause for termination of this Agreement.
12.4 Conflicts. In the event of any inconsistency between this Agreement and the Commercial Terms, the provisions of this Agreement shall prevail.
12.5 Remedies not exclusive. The rights and remedies contained in this Agreement are not exclusive of any other rights or remedies.
12.6 No waiver. The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies. No single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.
12.7 Notices. If either party has to serve notice on the other, it shall do so in writing and the notice must be sent either by courier, fax or certified pre-paid post to the address given for the other party or, if sent by email, with confirmation sent by certified pre-paid post. Notices sent in this way shall be effective on delivery if sent by courier, on completion of successful transmission if sent by fax, 48 hours after posting if sent by post, or on receipt if sent by email.
12.8 Severance. All parts of this Agreement apply to the maximum extent permitted by Applicable Law. If any provision of this Agreement shall be determined by any court or competent authority to be illegal, invalid and/or unenforceable then (i) CONSELF will replace such provision with similar terms which are enforceable under Applicable Law and (ii) such determination shall not affect any other provision of this Agreement, all of which other provisions shall remain in full force and effect.
12.9 Further assurance. Each party shall do, execute and perform such further acts, things, deeds and documents as may from time to time be required to give full legal and practical effect to this Agreement. Each party shall use all reasonable endeavours at its own cost to ensure that any necessary third parties shall do, execute and perform such further acts, things, documents as may from time to time be required to give full legal and practical effect to this Agreement.
12.10 Assignment. The Distributor may not assign the benefit of this Agreement without the prior written consent of CONSELF.
12.11 Rights of Third Parties. A person who is not a party to this Agreement has no right to enforce any term of this Agreement under applicable legislation and the parties to this Agreement do not intend that any third party rights are created by this Agreement.
12.12 Anti-Corruption. The Distributor will at all times comply with Applicable Laws concerning anti-bribery and anti-corruption (including but not limited to the United States Foreign Corrupt Practices Act 1977 and the United Kingdom Bribery Act 2010) with regard to all dealings, negotiations, solicitations or other contact with customers, potential customers, End Users or potential End Users (including but not limited to the employees, agents and subcontractors of the aforesaid entities).
12.13 Language. If there are any inconsistencies between the English language version of this Agreement and any translated version, then the English language version shall prevail.
12.14 Language. All material furnished by CONSELF will be in English. If there are any inconsistencies between the English language version of this Agreement and any translated version, then the English language version shall prevail.
12.15 Sole Agreement. This AGREEMENT represents the sole AGREEMENT between the parties and replaces all previous AGREEMENTS
13 GOVERNING LAW & JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of Italy and the courts of Milan shall have non-exclusive jurisdiction to determine any disputes, which may arise out of, under, or in connection with this Agreement;
If you do not agree with any of the terms or conditions of this Agreement, you will not have the status of a CONSELF Distributor and you are not authorised to sell the Licensed Services for any purpose.
IN WITNESS WHEREOF, the parties hereto have causes this Agreement to be executed by their duly authorized representatives as of the date first above written.
In accordance with the provisions of articles 1341 and 1342 of the Italian Civil Code, the Distributor expressly acknowledges and accepts the following provisions of this Agreement: 2.1 (Scope), 3.6 (Supply of Services – withholding supply), 4.8 and 4.11 (Distributor’s obligations – right of termination and cessation of performance), 10 (duration and termination – conditions and effects), 11 (Warranties and liability – limitation of liability), 12.10 (Assignment), 13 (Governing Law and Jurisdiction)
IN WITNESS WHEREOF, the parties hereto have causes this Agreement to be executed by their duly authorized representatives as of the date first above written.