TERMS AND CONDITIONS
WHEREAS
A: Party A: Brand and Party B: Duelstone Ltd intend to enter into this Agreement whereby Duelstone Ltd agrees to provide certain services to Brand to facilitate the Brand’s expansion in the Chinese market.
B. Brand and Duelstone Ltd are entering into this Agreement in good faith and are relying on its terms. The parties have entered into this Agreement on the date stated on the Plan.
DEFINITIONS
1.1 The following terms have the corresponding meanings in this Agreement:. Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, Confidential Information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. Platform Fees: fees payable by Brand to Duelstone Ltd based on the Plan. Duelstone Creators: Those creating content/sales on social media or providing support services to Creators. Duelstone Online Retailers: Those entities providing online retailer services to the Brand. Products: Brand’s products identified in the Stock List to be sold in the Territory. Plan: The Plan completed online by Brand to which these Terms & Conditions are attached. Territory: the People’s Republic of China, excluding the Hong Kong and Macau Special Administrative Regions and Taiwan.
1.2 Clause headings shall not affect the interpretation of this Agreement.
1.3 Person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
1.4 The Plan shall form part of this Agreement and shall have effect as if set out in full in the body of this Agreement.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.
1.7 A reference to any party shall include that party’s personal representatives, successors and permitted assigns.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.9 A reference to writing or written includes email.
1.10 References to clauses are to the clauses of this Agreement.
1.11 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.12 Save as the context requires or as otherwise stated in this Agreement, all references to payments made in this Agreement are references to such payments exclusive of any VAT chargeable and where such payments fall to be made under this Agreement, such VAT will be added to the amount at the rate applicable, if any, and paid in addition thereto subject to production of a valid and properly numbered VAT invoice.
RESPONSIBILITIES
7.1 Brand hereby grants Duelstone Ltd a licence to use all of its Intellectual Property Rights for Duelstone Ltd’s performance of this Agreement during the term of this Agreement. Brand represents and warrants that it has the Intellectual Property Rights over any materials (including images and descriptions) related to the Products and its brands provided by or on behalf of Brand to Duelstone Ltd, or obtained by Duelstone Ltd from Brand’s website (permission hereby given by Brand), for Duelstone Ltd’s performance of this Agreement.
7.2 Brand will be responsible for: all legal claims relating to any defect in the Products; and any breach of Intellectual Property Rights of any third party in connection with Duelstone Ltd’s use of Brand’s Intellectual Property Rights for the performance of this Agreement; and agrees to indemnify Duelstone Ltd its loss incurred in respect of the same.
7.3 Brand shall ensure that the Product labels comply with the relevant laws and regulations and contain a clear description of the manufacturing standards, the place of origin, the name of the Product, the ingredients or the composition of the Product, the restrictions of use and appropriate warning notices.
8. NON SOLICITATION
8.1 Non-Solicitation. During the Term and for a period of twenty four (24) months thereafter, Brand will not knowingly solicit for employment nor knowingly employ or hire (either as an employee or consultant) any of Duelstone’s employees who performed any services under this Agreement. In addition, during the Term and for twenty four (24) months thereafter, Brand will not, solicit or directly enter into any form of business with Creators or Retailers that Brand became aware of pursuant to this Agreement.
9. TERM AND TERMINATION
9.1 This Agreement shall be effective from the date Brand signs the Plan until terminated by the completion of the services purchased through the Plan by the Brand.
9.2 Either party may without prejudice to its other rights and remedies by notice in writing to the other party immediately terminate this Agreement if the other party: (a) is in material or persistent breach of any of its obligations under this Agreement and if that breach is capable of remedy and the other has failed to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; (b) is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction; or (c) ceases or threatens to cease carrying on business.
9.3 In the event of termination of this Agreement for any reason, each party shall within 7 days of such termination, upon request of the other party, return (or, at the other party’s option, destroy) all Confidential Information in its possession or under its control and all copies of such information.
9.4 Termination of this Agreement for whatever reason shall not operate to affect any provisions that expressly or by implication survive termination, including clauses 7.2, 9 to 16.
10. CONFIDENTIALITY Each party undertakes that it shall not disclose to any person any information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs (“Confidential Information”), except as permitted below. Each party may disclose the other party’s Confidential Information: (a) to its employees, officers, representatives, advisers or third parties who need to know such information for the purposes of complying with this Agreement or fund raising or corporate finance activities. Each party shall ensure that its employees, officers, representatives, advisers or third parties to whom it discloses the other party’s Confidential Information comply with this clause; or (b) as may be required by law, to a court of competent jurisdiction or any governmental or regulatory authority.
11. THIRD PARTY RIGHTS No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
12. GOVERNING LAW This Agreement and any disputes or claims (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales.
13. JURISDICTION The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
14. FORCE MAJEURE Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control; in such circumstances, the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 30 days, either party may terminate immediately this Agreement by written notice to the other party.
15. ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
ADDENDUM : STORE MANAGEMENT SERVICES
This Agency Service Agreement is entered into between the following Parties on the date specified on the Plan Party A: Brand and Party B: Duelstone
1. Party A owns the management rights of a Chinese Social Media Platform Global Store store.
2. Party B is a service provider of entrusted store operation, with the ability and resources to provide high quality and efficient services.
3. Party A intends to entrust Party B to be the entrusted operator to provide operation services for its multi-platform stores. After friendly negotiation, both Parties have reached this Agency Service Agreement (the “Agreement”) as follows:
1. Definition
1.1. Unless otherwise specified in this Agreement, the terms below shall have the following meanings: 1.1.1. Parties: Party A and Party B, collectively;
1.1.2. Stores: the multi-platform stores operated and managed by Party A for Party B;
1.1.3. Entrusted Operation Services: the daily operation, management, marketing, and promotion, and other services provided by Party B for Party A’s stores;
1.1.4. Sales Amount: the combination of the total prices and all extra-priced expenses received by Party A from the purchaser or receiver of taxable labors or services through the Stores for the sale of products, and provision of taxable labors or services, including the tax payable by Party A but excluding the refund amount (subject to the actual payments of users confirmed to pay to International Alipay);
1.1.5. Commission: the monthly service fee paid by Party A to Party B based on the monthly Sales Amount of the Stores at a certain percentage.
1.2. Unless otherwise specified in this Agreement:
1.2.1. The clauses, paragraphs, and sub-clauses quoted are the clauses, paragraphs and sub-clauses of this Agreement;
1.2.2. The headings are for convenience of reference only and shall not affect the interpretation of this Agreement, or limit the contents or scopes of the clauses under the headings.
Service Scope and Fees
2.1. Party B shall provide Party A with store operation, design, product promotion, and other services.
2.2. Commission
2.2.1. Party A shall pay Party B the Commission for the Entrusted Operation Services provided as follows: (1) Party A shall pay Party B a monthly Commission rate of 9.5%;
(2) 2.2.2. Monthly Commission for the month = the monthly Commission percentage X the total Sales Amount of the Stores for such month.
2.2.3. The total Sales Amount of the Stores for such month is subject to the actual payments of the Chinese Social Media Platform users confirmed to pay to the international payment platform. If Party A disagrees with the Sales Amount provided by Party B, Party A is entitled to request Party B to provide vouchers issued by Chinese Social Media Platform.
2.3. Payments The Commission shall be settled monthly. At the beginning of each month, Party B shall provide the details of Sale Amount of the previous month to Party A. Upon the confirmation of both Parties, Party A shall pay Party B in Euros prior to the 30th day of the month.
2.4. Receipt Account The receipt account designated by Party B is as specified on the invoice. Party B shall not accept any payment made by any third party on behalf of Party A (“Third Party Payment”), unless Party B agrees to such Third Party Payment, in which case, Party B shall provide a written proof of payment entrustment as requested by Party A, and go through relevant procedures.
2.6. Fapiao Party A shall issue receipts to Party B for the above Commission.
2.7. Other Costs 2.7.1. Party B shall bear its own costs incurred by Party B during the term of Entrusted Operation Services. 2.7.2. Party B shall provide operation fees as specified in the Plan.
2.8. Service Term Subject to the terms and conditions set forth in the Plan.
3 Rights and Obligations
3.1. Party A’s rights and obligations
3.1.1. During the term of the Entrusted Operation Services, Party A has the right to: (1) require Party B to provide the services as agreed in this Agreement; (2) to comment on Party B’s design plans, promotion plans, and implementation plans, and decide whether to implement the plans); and (3) to request Party B to provide assistance based on the actual situation, if there are special needs periodically.
3.1.2. During term of the Entrusted Operation Services, Party A’s obligations shall be as follows: (1) Party A shall remain a legal entity registered in accordance with the laws of its place of establishment, and with independent civil liability. Party A shall remain the brand owner or the authorized agent of the products sold in the Stores specified in this Agreement. Party A shall meet the conditions for opening online stores on the relevant online sales platform as agreed in this Agreement. (2) Party A shall lawfully and formally operate in accordance with laws and regulations and the relevant rules of the online sales platforms. (3) Party A shall have full ownership or the right to dispose of the products sold by Party A. Party A shall not infringe the industrial property rights or intellectual property rights of any third party, including but not limited to trademark rights, patent rights, copyright rights, etc. Party A shall provide Party B with the latest product information in a timely manner. (4) Party B shall simultaneously provide Party A with the real data related to the initial operation of the Stores and be fully responsible for those data. (5) Party A shall actively cooperate in paying for the advertising and promotion expenses related to Party A’s Stores to ensure the smooth implementation of Party B’s plan. (6) Party A shall pay the Commissions to Party B on time in accordance with this Agreement. 4 / 12
3.2. Party B’s rights and obligations
3.2.1. During the term of the Entrusted Operation Services, Party B’s obligations are as follows: (1) Party B shall remain a legal entity registered in accordance with the laws of its place of establishment with independent civil liability. (2) Party B shall select excellent and skilled operation personnel to form a professional team to provide services for Party A. (3) Party B shall be responsible for the operation and promotion of the entire project in a diligent and professional manner. (4) Party B shall provide online services to deal with the problems arising from the operation of Party A’s Stores in a timely manner. (5) Party B shall carry out the services in accordance with the work plan and objectives determined by both Parties. (6) Party B shall propose marketing activities based on the characteristics of the project, and upon Party A’s confirmation, shall complete the relevant work on time with the quality and quantity; if Party A is required to cooperate with the implementation, Party A shall complete the work on time to ensure the successful completion of the work. Party B shall not assume any responsibility for the work not completed on time due to Party A’s actions. (7) During the term of this Agreement, Party B shall ensure that the overall merchandise inventory turnover rate is not less than 35% (inventory turnover rate = the number of days of the time period / inventory turnover days, time period inventory turnover days = the number of days of the time period X (1/2) X (inventory quantity at the beginning of the time period + inventory quantity at the end of the time period) / time period Sales Amount. The specific data shall be subject to the Fulfilment Centre system.). Party B shall clarify with Party A the reasons for special activity period or special inventory arrangement; otherwise, Party A has the right to request Party B to adjust.
3.2.2. During the term of the Entrusted Operation Services, Party B has the right to (1) request Party A to provide information, pictures, and other related information within the scope of the project to facilitate the smooth operation of the project; (2) make corresponding adjustments and amendments to the submitted documents and programs according to the changes in the implementation; 5 / 12 (3) collecting service fees in accordance with this Agreement; and (4) require Party A to provide active support and cooperation to the marketing plan proposed by Party B with all resources.
Liability for Breach of Contract
7.1. Party A shall pay Party B the Commission in full and on time. If the payment is delayed, or not paid in full or not paid at all, Party A shall pay Party B a late fee at 5% of the unpaid amount. If the delay is over one month, Party B has the right to request Party A to pay twice of the unpaid amount as liquidated damages; if the liquidated damages are not enough to cover Party B’s loss, Party A shall make up for the deficiency it.
7.3. Party A shall be liable for any issues relating to the quality of Party A’s sales service, intellectual property, and customer service, and Party B has the right to seek recovery from Party A for any losses caused by such issues.
7.4. Neither Party shall be liable to the other Party for any special, incidental, indirect, or consequential damages and losses (including but not limited to, anticipated benefits, profits, business opportunities, suspension of business, and loss of information, etc.).
Termination 8.1.
The Entrusted Operation Services provided by under this Agreement may be terminated in the following circumstances:
8.1.1. The termination of this Agreement by mutual consent of the Parties; 8.1.2. This project has been completed or terminated;
8.1.3. Either Party may terminate this Agreement by notice to the other Party, if the performance of this Agreement becomes impossible, or continued performance would materially adversely affect either Party, due to reasons of law, regulation or policy, any material changes in the company’s business condition, or any event of force majeure;
8.2. Upon the termination of this Agreement, Party B shall sell all the products in stock during the operation period within three months after the termination of this Agreement; otherwise, Party B shall buy out all the products in stock at full price, which shall be determined by Party A’s cost price of such products. Party A may deduct the amount of Party B’s full buyout of the products from the Commission or other fees owed to Party B.
8.3. Termination of this Agreement in accordance with the above terms shall not create any continuing liability or obligation of the Parties except for the following: the remuneration and expenses incurred by Party B as of the date of termination; if Party A has substantially adopted or implemented the service results provided by Party B prior to the termination of this Agreement, Party B shall, on equal terms, have the right of renewal over other service providers; and, the confidentiality and indemnity provisions shall survive the termination of this Agreement.
9 Miscellaneous
9.1. Any supplements or amendments to this Agreement shall be in writing and agreed by both Parties to be valid.
9.3. The addresses of both Parties as stated in this Agreement may be used as the address for the service of reminders, statements of accounts, and arbitration documents by the arbitration commission. If the relevant documents and litigation documents are not physically received or delivered due to errors in the stated address or failure to notify the changed address in time, the date of return of the relevant documents and litigation documents by post shall be deemed the date of service.
9.5. This Agreement shall become effective on the date of execution by both Parties.
10 Miscellaneous
This Supplementary Agreement is an integral part of the Master Agreement and has the same legal effect as the Master Agreement. In the event of any inconsistency between this Supplementary Agreement and the Master Agreement, this Supplementary Agreement shall prevail. Anything not covered hereby shall be determined by the Master Agreement.