TERMS AND CONDITIONS OF SALE & DISTRIBUTION POLICY

SPORTAX LIMITED.

Sportax Limited. (“SPORTAX”) offers certain goods bearing NIKE Trademarks (as defined below) (“Product” or “Products”) and services for sale to persons or entities that have been authorized by SPORTAX to make purchases of such Product and services (“Customer”; SPORTAX and Customer are collectively referred to as the “Parties” and individually as a “Party”).  Each order for Products (an “Order”), will be governed by the terms and conditions of sale in effect at the time the Order is submitted (“Terms and Conditions”).  The Terms and Conditions applicable as of 1 October 2024 are set out below.

 

Article 1 – Formation of Agreement

1.1.1      These Terms and Conditions apply to each Order, including any Order Customer may place in the future and, if existing, the overall supply relationship between SPORTAX and Customer. SPORTAX explicitly rejects the applicability of any terms and conditions of Customer, including any terms and conditions that follow from correspondence between the Parties and terms and conditions that may be preprinted on Customer’s purchase order form or other form.

1.1.2      Any Order submitted by Customer is an offer only and does not form a binding contract unless and until this Order has been accepted by SPORTAX. SPORTAX is under no obligation to accept or acknowledge an Order. SPORTAX may accept all or any part of an Order. SPORTAX will be deemed to have accepted an Order, or part of an Order, only upon submission of the written document called order acknowledgement (“Order Acknowledgement”). To the extent that the Order Acknowledgment deviates from the Order and constitutes a rejection thereof and a new offer, such offer is deemed accepted by Customer if not explicitly rejected in writing within ten (10) days of receipt of the Order Acknowledgment.  Confirmation of receipt of the Order by SPORTAX does not constitute acceptance.

1.1.3      Each Order that is accepted by SPORTAX will, together with the relevant Order Acknowledgement, these Terms and Conditions and, if applicable, Customer’s credit application, account agreement and/or trading terms agreement (“Trade Terms”), constitute a single, separate agreement between SPORTAX and Customer (“Agreement”).

 

Article 2 – Delivery and Risk

2.1        All Products will be delivered DDP (as defined in the Incoterms 2010). SPORTAX will deliver the Products to Customer at the place stated in the Order Acknowledgement (the transport of the Products by SPORTAX to that place will be referred to as “Delivery”). Delivery of At Once orders will occur at the place indicated by SPORTAX at the time of ordering.

2.2        If SPORTAX indicates in the Order Acknowledgement or elsewhere that Delivery will occur on a given date, time or during a delivery window, any such indication is an estimate only.

2.3        From six weeks after receipt of the Order Acknowledgement, Customer may request SPORTAX to deliver (call-off) the Products within a particular delivery window. This is a courtesy only. SPORTAX is not required to make the Delivery at the time requested by Customer. SPORTAX may deliver the Products anytime SPORTAX deems fit, after giving Customer two weeks’ notice. If Customer does not call-off the Products within eight weeks after receipt of the Order Acknowledgement, SPORTAX may consider this as a request by Customer to cancel the respective Order. SPORTAX has the option to accept Customer’s request for cancellation or to proceed to deliver the Order. If SPORTAX decides to accept the request to cancel an Order in full or in part and already received payment, SPORTAX will, at its election, either refund the payment or credit Customer’s account.

2.4        The risk with respect to the Products will pass to Customer upon Delivery under Article 2.1 above.  The passing of risk is not determined by the moment of the transfer of title to the Products under Article 4.6 below.

 

Article 3 – Acceptance of Products by Customer

3.1        Customer is deemed to have accepted that the Products are of the correct number, type, color, and size, and that the Products and their packaging are of suitable quality and contain no visible or otherwise immediately detectable defects unless SPORTAX receives within fourteen (14) days after Delivery notice in writing via shop.sportax.co.uk rejecting the Products and specifying the problem. The rights conferred to Customer in Article 3.1 are in addition to Customer’s rights under Article 9 below.

3.2        SPORTAX will substitute or provide a refund (to be determined at SPORTAX’s discretion) for any Products proved to SPORTAX’s satisfaction to have been damaged or missing upon Delivery provided that within fourteen (14) days after Delivery both SPORTAX and the carrier(s), to the extent known by Customer, receive written notification from Customer of the occurrence of the damage or absence as well as of its nature and extent.

3.3        SPORTAX reserves the right to discontinue product lines and to make changes in Products offered at any time. Customer will be deemed to have accepted any substitute Products it receives on the terms outlined in SPORTAX’s invoice, subject to Articles 3.1 and 3.2 above.

 

Article 4 – Prices, Payment, Financial Security and Retention of Title

4.1       The prices of the Products will be SPORTAX’s DDP list prices in euros or otherwise as stated in the invoice. Prices include freight, taxes, customs duties, warehouse charges and other costs associated with transportation and storage up to the moment of Delivery.

4.2          SPORTAX may change its prices at any time and accordingly SPORTAX will provide Customer with (a)  up-to-date price lists for all the Products from time to time, (b) not less than thirty (30) days’ notice in writing of any price lists changes and that such changes will apply to all Products delivered on and after the applicable date of the changes in such price lists including outstanding Orders.

4.3       All invoices will be issued electronically by SPORTAX to Customer by (a) email invoicing (b) the SPORTAX online application shop.sportax.co.uk, or (c) electronic data interface (EDI). Customer agrees that SPORTAX will not provide paper invoices. Customer will provide a valid email address to SPORTAX and immediately notify SPORTAX of any changes.

4.4       Unless stated otherwise on the SPORTAX invoice, or through other written communication from an authorized SPORTAX representative, invoices are payable thirty (30) days after the invoice date. Payments must be made by direct debit and in euros unless otherwise stated on the invoice or Trade Terms, if applicable. SPORTAX reserves the right, depending on the economic or monetary situation at any time immediately demand payment (including payment of unpaid invoices) in a different currency than euros. SPORTAX is entitled to designate a different bank than Bank of America in Amsterdam for payment of the invoice as communicated by an authorized representative of SPORTAX. The Customer will be responsible for any costs of currency conversion and will not reduce the payment due to SPORTAX for the delivered or ordered Products.

4.5       SPORTAX is entitled to demand additional financial security for the payment of delivered or ordered Products, demand advance payment for ordered Products, or shorten the payment term as specified in Article 4.4 if in SPORTAX’s view one of the following situations applies:

            (i) The financial conditions of Customer are adversely affected in such a way that Customer is or may not be able to fulfill its current or future obligations to SPORTAX, including but not limited to reasons of material adverse changes to Customer’s business, prospects or financial condition, any changes in currency laws or regulations or other adverse economic and financial developments in or relating to Customer’s place of business;

            (ii) Customer is acting or has acted in breach of the Agreement or these Terms and Conditions; or

            (iii) SPORTAX has provided Customer with a notice of termination with respect to ending the Agreement and, if existing, the overall supply relationship with Customer regardless of the reason for termination.

            Customer is obligated to cooperate upon receipt of SPORTAX’s first written demand for additional security, including but not limited to a bank guarantee, letter of credit, a parent guarantee or right of pledge or other form of security. SPORTAX will determine the format and coverage of the security. If SPORTAX demands an advance payment before the Delivery of the Products, then Customer is obligated to pay the price for the ordered Products ultimately 48 hours before the day that SPORTAX will ship said Products from its warehouse or other location where the Products are stored. If the Parties have not yet agreed on a shipment date, then SPORTAX may determine such date at its discretion. Customer will always ensure that the aggregate amount of any amounts due and payable by Customer to SPORTAX will not exceed the higher of either the coverage of any existing security or any business credit extended to Customer by SPORTAX.

4.6       SPORTAX retains title to all Products until SPORTAX has received payment in full of (i) all outstanding amounts for all Products or services which have been or will be delivered or provided by SPORTAX, and (ii) any damages  and costs incurred by SPORTAX as a result of or in connection with a breach by Customer of its obligations under an Agreement.

4.7       SPORTAX will be entitled to repossess any or all Products and to enter the premises of Customer and have access to any location where Products may be stored – including locations which are owned by third parties – if (i) Customer is in default of its obligations under an Agreement or (ii) is or may be unable to provide payment in full or to perform any of its obligations under an Agreement or to provide adequate security covering Customer’s obligations thereunder.

4.8       In accordance with SPORTAX’s rights under Article 4 and the Agreement, Customer must, among other things, (a) store the Products separately from third party goods, (b) maintain the Products in satisfactory condition, (c) immediately notify SPORTAX if any of the Products are seized, attached or otherwise encumbered by a third party and immediately notify such party of SPORTAX’s rights under its retention of title, and (d) fully cooperate with SPORTAX, if SPORTAX expresses its intention to repossess the Products. Customer is not entitled to grant a charge or other security over the Products or to encumber the Products in any way without the express written permission of SPORTAX.

4.9        If any amount remains unpaid after the date on which the payment is due, (i) Customer will pay Dutch statutory commercial interest on such sum from that date and (ii) SPORTAX is entitled to cancel discounts, suspend performance and cancel any agreements until the date of receipt by SPORTAX of full payment of any due and payable amount.

4.10      Customer will be deemed to have accepted the amount reflected in the invoice as the amount actually owed, unless Customer disputes the amount of that invoice in writing via shop.sportax.co.uk within fourteen (14) days after receipt. Any such claim will not affect the payment term of the respective invoice.  If SPORTAX considers such claim to be well-founded, it will use reasonable efforts to adjust the invoice before the end of the payment term. If it is not possible to adjust the invoice before the end of the payment term, SPORTAX will, at its discretion, either refund the undue payment or credit Customer’s account.

4.11      SPORTAX is entitled to apply payments it receives from Customer to any of Customer’s outstanding debts and to disregard any instruction from Customer to apply payment to any specific invoice.

4.12      SPORTAX is entitled to set-off all and any debts receivable by SPORTAX from Customer, whether or not due and payable and whether or not contingent, against any debts owed by SPORTAX to Customer, whether due and payable or not, regardless of the currency in which such debts are denominated. Debts expressed in a foreign currency will be set off at the exchange rate on the day of set-off. If possible, SPORTAX will inform Customer in advance that it intends to exercise its right of set-off. Customer waives its right to apply set-off to any of its debts receivable by Customer from SPORTAX against any debts owed by Customer to SPORTAX.

4.13      Upon request of SPORTAX, Customer will provide 1H (semi-annual) un-audited and /or FY (full-year) audited financials, in a timely manner. Such request may include, but are not limited to, customer’s balance sheet, income statement and cash flow statement.

 

Article 5 – Distribution Policy

5.1        Customer must, at all times, comply with the Distribution Policy (the current version of which is referred to as “SPORTAX Distribution Policy”). Customer must keep complete and accurate accounts and records from which the satisfaction of all its obligations to comply with this policy to SPORTAX’s satisfaction may be verified by SPORTAX.

5.2        Customer will not, either directly or indirectly, sell or otherwise make the relevant SPORTAX Products available to any reseller who has not been appointed by SPORTAX under the SPORTAX Distribution Policy to sell such relevant SPORTAX Products, or take any other action that facilitates sales of any SPORTAX Products (online or offline) by any reseller that has not been appointed by SPORTAX under its Distribution Policy. Customer may, at its discretion, directly sell the relevant SPORTAX Products (online or offline) to any end user in any place or country inside the European Economic Area (“EEA”), Switzerland or the United Kingdom, or to any reseller that has been appointed by SPORTAX under the SPORTAX Distribution Policy inside the EEA, Switzerland or the United Kingdom to sell such relevant SPORTAX Products. Unless authorized by SPORTAX in writing, Customer will not, either directly or indirectly, sell or otherwise make available Products to any person, firm or corporation in any place or country outside the EEA, Switzerland or the United Kingdom, or to any person or entity that Customer knows, or in the exercise of reasonable judgment should know, intends to offer, sell or deliver such Products outside the EEA, Switzerland or the United Kingdom. In case of online sales, Customer will ensure that every purchase made through its website is made to a consumer with a billing address within the EEA, Switzerland or the United Kingdom, or reseller who has been appointed by SPORTAX under its Distribution Policy with a billing address within the EEA, Switzerland or the United Kingdom.

 

Article 6 – Cancellation of Orders

6.1        A request by Customer to cancel or modify an Order (in full or in part) must be submitted and received in writing by SPORTAX’s customer service department at least thirty (30) days before the requested Delivery date specified in the Order. Each cancellation or modification is subject to SPORTAX’s written approval.

6.2        SPORTAX is entitled to cancel or reduce trade discounts granted to Customer (if any) in the event that (i) more than 8% of Customer’s Order value for any particular selling season with respect to any product category is canceled or modified; or (ii) of any changes in currency laws or regulations or other adverse economic or financial developments in or relating to Customer’s place of business, regardless of SPORTAX’s approval of such cancellation(s) or modification(s).

6.3        SPORTAX is entitled to cancel or modify any Order, with or without cause, – even if such an Order has already been acknowledged – by notifying Customer of such cancellation no later than thirty (30) days before the scheduled date of Delivery. The notice will be effective (a) immediately if cancellation is for cause (which includes, but is not limited to, economic or financial developments relevant to SPORTAX’s interests such as changes in the currency laws or regulations or other adverse economic or financial developments in or relating to Customer’s place of business), or (b) ten (10) days after receipt if termination is without cause. If SPORTAX has received payment for the cancelled Order, SPORTAX will, at its discretion, either refund the payment or credit Customer’s account.

 

Article 7 – Termination

7.1        SPORTAX may immediately terminate the Agreement and, if existing, the overall supply relationship with Customer by giving notice in writing if Customer breaches any of its obligations under the Agreement that (a) is not capable of being cured, or (b) if capable of being cured, remains uncured for thirty (30) days after receiving  notice in writing of the breach. In addition to other breaches that are not capable of being cured, grounds for immediate termination for breach will include – but are not limited to – a breach of Article 4.4 (payment obligations), Article 5 (SPORTAX Distribution Policy), Article 10 (Intellectual Property Rights), Article 12 (Compliance), Article 13 (Confidentiality) and Article 16.1 (Restriction on Assignment) of these Terms and Conditions.

7.2        Upon the effective date of the termination, all outstanding Orders will be cancelled unless otherwise agreed between the Parties.

7.3        If there is any breach of Customer’s obligations under the Agreement, then, without prejudice to any other remedies SPORTAX may have, any outstanding unpaid invoices will become immediately payable and invoices which have not been submitted will be immediately payable once submitted. In addition, SPORTAX may suspend the ability of Customer to order new Products and cancel and/or suspend Deliveries of Products.

7.4        Each Party may at any time terminate the overall supply relationship between the Parties, if existing, for convenience by giving the other Party a three (3) months’ notice in writing. All outstanding Orders will be cancelled on the last day of the notice period unless otherwise indicated by SPORTAX.

7.5        Customer will have no right to any compensation upon termination of the Agreement and, if existing, the overall supply relationship, including but not limited to compensation for goodwill that may have been created and/or any investments, claims of third parties, such as employees, agents or other retailers. If Customer makes any investment in relation to the Agreement, then Customer does so for its own account and risk.

7.6        In any event, SPORTAX may immediately terminate the Agreement and, if existing, the overall supply relationship with Customer by giving notice in writing, if there are three or more incidents of non-compliance with the Agreement during a six-month period, regardless the nature of the non-compliance and regardless of how long any one of the conditions remains uncured.

 

Article 8 – Force Majeure

8.1        SPORTAX is not responsible for any delay or other suspension or deviation in the performance of SPORTAX’s obligations under any Order and/or Agreement which is (in whole or in part) caused by (i) fire, flooding or other natural disasters, (ii) strikes or industrial actions or disputes, (iii) acts or omissions of governmental agencies (including customs agencies in the country of origin or destination), (iv) default of suppliers or sub-contractors (including but not limited to carriers) or (v) any change in currency laws or regulations or other adverse economic or financial developments in or relating to Customer’s place of business, or (vi) any circumstances outside SPORTAX’s reasonable control, (each a “Force Majeure” event or condition).

8.2        The estimated Delivery dates specified in the Order will be extended by that period of time during which SPORTAX is unable to perform due to Force Majeure. In the event that such delay exceeds three months, SPORTAX and/or Customer may cancel the affected Order(s) by giving notice in writing, in which case SPORTAX is not liable for any resulting damages.

 

Article 9 – Warranty

9.1        SPORTAX warrants that, for a period of (twelve) 12 months starting upon Delivery, the Products are free from defects in design, workmanship and materials at the time of Delivery. If at any time within the 12-month period (“Warranty Period”) a Product is discovered that does not meet such warranty, SPORTAX will, at its discretion, repair or replace free of charge such Products or repay the price of any defective Products, if and to the extent the price has been paid to SPORTAX, provided that: (a) Customer filed a written complaint via shop.sportax.co.uk before the expiration of the Warranty Period the defects were not (in whole or in part) caused by improper use or storage; (b) the defects are found in SPORTAX’s reasonable opinion to have arisen solely from SPORTAX’s faulty design, workmanship or materials.

9.2        SPORTAX will redeliver any Products that qualify for replacement under Article 9.1 free of charge at the place of Delivery stated in the Order Acknowledgement (or, only in case of At Once orders, at the place of Delivery indicated by SPORTAX at the time of ordering), but otherwise in accordance with and subject to these Terms and Conditions. No new Warranty Period will apply to such redelivered Products.

9.3        Articles 9.1 and 9.2 constitute Customer’s sole and exclusive remedy for defects in the Products and damages resulting therefrom. SPORTAX will not be liable for defects or other imperfections in the Products or their packaging or for any loss or damage to or caused by the Products or their packaging. Subject to Articles 9.1, 9.2 and 11, any and all other conditions, warranties (such as regarding fitness for purpose, performance, nature or merchantable quality of the Products) or representations concerning the Products are excluded.

9.4        SPORTAX and Customer may have agreed to guidelines and mechanisms for inspection of the Products returned by consumers to Customer or damaged prior to Delivery to Customer as well as accounting mechanisms for credit to be given by SPORTAX to Customer for such Products that are defective in materials or workmanship. Those guidelines and mechanisms are set out in the Defective Entry Policy. These guidelines and mechanisms prevail over any other remedies that Customer may have in respect of any defective Products, including but not limited to Articles 9.1 and 9.2. Customer will comply with and will ensure that the defective Products covered under these guidelines and mechanisms are in all respects dealt with in a manner that is in compliance with all (then-current) laws and regulations regarding waste. Additionally, Customer will fully indemnify and hold SPORTAX harmless against all loss, damage, fines, claims or actions however suffered or incurred by SPORTAX arising out of or under such laws and/or regulations.

9.5        The limitation of warranties and liabilities in this Article 9, will not apply if and to the extent that Customer has a valid right of recourse against SPORTAX under applicable mandatory law and submitted a substantiated claim.

 

Article 10 – Intellectual Property Rights

10.1      Customer acknowledges SPORTAX’s (or SPORTAX’s affiliates) sole ownership of and exclusive right, title and interest in and to all SPORTAX trademarks, service marks, product names, style names, trade dress, copyright, and product designs, including without limitation, the names and marks  SPORTAX, the Swoosh Design , the SPORTAX Swoosh logo design , JUST DO IT, JORDAN,  the Jumpman logo , and all other trademarks, product names, style names, service marks, trade dress, copyrights, and product design owned by SPORTAX or its affiliates (“SPORTAX Trademarks”).

10.2      Customer recognizes that the SPORTAX Trademarks possess substantial goodwill and agrees that it will not:

(i) use or display SPORTAX Trademarks in a manner that would disparage or damage SPORTAX, the SPORTAX Trademarks or the SPORTAX Products;

(ii) represent or imply that it has any ownership in the SPORTAX Trademarks;

(iii) attempt to license or sell the SPORTAX Trademarks;

(iv) register or have registered in its own name or in the name of a third party any SPORTAX Trademarks or similar rights in any way connected to the SPORTAX Trademarks and/or to SPORTAX or its affiliates;

(v) use the SPORTAX Trademarks in any manner other than as expressly permitted under the terms of this Agreement;

      (vi) make any modification to the Products or their packaging;

(vii) make any modifications to the SPORTAX Trademarks or any SPORTAX provided and approved materials;

(viii) use any marks confusingly similar to the SPORTAX Trademarks or use the SPORTAX Trademarks in combination or conjunction with other trademarks.

(ix use any of the SPORTAX Trademarks except precisely in the form in which it is registered or approved by SPORTAX;

(x) use any of the SPORTAX Trademarks as part of a business or trade name or domain name or URL or social media name/handle;

(xi) use any of the SPORTAX Trademarks in any way that might prejudice the distinctiveness or validity of the SPORTAX Trademarks or the goodwill of SPORTAX and/or its affiliates therein, or authorize any third party to do the same;

(xii) use in connection with the Products any trademarks other than the SPORTAX Trademarks without obtaining the prior written consent of SPORTAX;

(xiii) operate a web site that includes in its URL any SPORTAX Trademark, or any similar trademark or trade name that could be misleading to consumers;

(xiv) use any SPORTAX Trademark on a website without prior written approval from SPORTAX;

(xv) use certain trademarked terms, as designated by SPORTAX, in metadata;

(xvi) purchase, bid for and/or broad match certain trademarked terms, if designated by SPORTAX, as internet search terms; or

(xvii) use, purchase, bid for and/or broad match any Products as internet search terms in combination with the terms “discount”, “cheap”, or “sale” and/or any terms that are similar to these terms, or other terms designated by SPORTAX.

 

10.3      All goodwill associated with Customer’s use of the SPORTAX Trademarks will inure to the benefit of and owned exclusively by SPORTAX.

10.4      Customer will comply with SPORTAX’s latest trademark usage guidelines, which SPORTAX may provide and circulate from time to time, as well as any other policies governing the use of (i) SPORTAX logos and other trademarks, and (ii) product and athlete images and other copyrighted materials.

10.5      All advertising and displays, whether print, in-store signage or displays, online media posts or other of the SPORTAX Trademarks, SPORTAX Products, SPORTAX athlete images and Product descriptions will conform to the standards set by SPORTAX.  Upon request by SPORTAX, Customer will submit to SPORTAX, for its review, any public statements about SPORTAX or advertising materials bearing SPORTAX Trademarks, Product images, athlete images, or Product descriptions. Such materials will be deemed rejected unless and until SPORTAX approves of the materials in writing, and Customer will not use the rejected materials.  SPORTAX’s quality standards will apply if Customer advertises, markets or promotes any Product through digital media, including online, social or mobile platforms.

10.6      SPORTAX keeps a library of digital assets ready for use in many forms of media.  These assets may be made available by SPORTAX, at its discretion, for Customer’s use.  To access the library, Customer must first be approved by SPORTAX in writing.  Customer should contact its SPORTAX Sales Representative to learn more about SPORTAX’s digital asset policy.  If Customer’s access to the library is approved, the library’s assets are approved for Customer limited use only on authorized website(s) or Customer’s website or as otherwise set out in such written approval by SPORTAX.  Customer will not scan, copy, display, distribute, revise or in any way use images directly from SPORTAX printed catalogs, SPORTAX websites or social media posts, SPORTAX brochures and/or print ads or anywhere else for any purpose.

10.7      Customer will notify SPORTAX in writing of any infringement or improper use of the SPORTAX Trademarks that comes to its attention.

10.8      Customer acknowledges and agrees that the SPORTAX Trademarks and the SPORTAX reputation for quality are extremely valuable to SPORTAX, and that SPORTAX does not authorize Customer to sell or otherwise distribute any damaged or defective Product.  Accordingly, Customer agrees that Product which may be damaged or defective, for any reason, will be, at SPORTAX’s discretion, either returned to SPORTAX or disposed of according to SPORTAX’s instructions.  SPORTAX and its agents will have the right to witness such destruction. 

10.9      In the event of any third party claim against Customer for infringement of intellectual property rights arising directly from the use or sale of the Products by Customer in accordance with the terms of this Agreement, SPORTAX may at its own expense conduct any ensuing litigation and all negotiations for a settlement of the claim. SPORTAX will bear the costs of any payment (either by way of a lump sum or a continuing royalty payment) to be made in settlement or as a result of an award in a judgment against SPORTAX in the event of litigation. The foregoing is subject to Customer’s full compliance with Article 10.10 below.

10.10    Customer will (i) give SPORTAX prompt notice in writing of any such claim being made or action threatened or brought against it, (ii) take reasonable steps to mitigate any losses or damages incurred as a result of the claim, (iii) make no admission of liability or takes any other action in connection therewith, and (iv) at SPORTAX’s expense, to the extent reasonable, give all reasonable information, cooperation and assistance to SPORTAX in relation to the handling of the claim. In addition, if it is made a condition of any settlement made by SPORTAX, or judgment awarded against Customer, Customer will return or destroy, as applicable, all infringing Products still under its control subject to a refund by SPORTAX of any price already paid for such Products.

10.11    Any modification of the Product or its packaging by Customer that compromises the safety of the product or breaches any intellectual property rights of SPORTAX or other third parties is strictly forbidden, as set out in the SPORTAX Distribution Policy. Where Customer acts in breach of this rule in a way that compromises the safety of the Product, including by introducing materials to the Product which are on SPORTAX’s Restricted Substances List, Customer will be automatically liable – without further notice from SPORTAX – for a penalty payment of EUR 10,000 per Product affected, without prejudice to any of SPORTAX’s other rights under this Agreement, the SPORTAX Distribution Policy and in law, including – but not limited to – the right to terminate the Agreement and/or the right to claim compensation for all damages suffered as a result of the breach by Customer of this Article 10.11 and/or to claim specific performance in addition to the penalty.

 

Article 11 – Limitation of Liability and Indemnification

11.1      SPORTAX will not be liable for losses sustained by Customer in connection with the performance of an Agreement or, if existing, the overall supply relationship between SPORTAX and Customer, third party claims or legal actions or for any costs, damages, legal fees, interests and/or other liabilities sustained by Customer in connection therewith, including but not limited to lost profits, costs of procuring of substitute goods, loss of goodwill, business, contracts, anticipated savings and/or loss of data or system use, in each case whether direct, indirect or foreseeable.

11.2      SPORTAX’s liability to Customer will in any case be limited to the amount invoiced for the Products in relation to the Order that gave rise to the liability, irrespective of the legal basis for such liability.

11.3      The limitations of liability set out in Articles 9.3, 11.1 and 11.2. and the limitation of SPORTAX’s obligations as explicitly stated in Articles 8 and 9 will not apply if damage resulted from gross negligence or willful misconduct of SPORTAX’s senior management or where liability cannot be excluded or limited under applicable product liability law or other mandatory laws.

11.4      Customer indemnifies and holds SPORTAX harmless against any and all third-party claims resulting from Customer’s breach of the Agreement or applicable (local) laws, including but not limited to any of the claims set forth in Article 7.5.

 

Article 12 – Compliance

Customer and its representatives, including, but not limited, to its officers, directors, employees, agents, affiliates, and any other person acting on its or their behalf, have complied and will comply with all applicable laws regarding anti-bribery, anti-corruption, and anti-unfair competition, including the U.S. Foreign Corrupt Practices Act, as amended (15 U.S.C. Section 78dd-1, et. seq.), the UK Bribery Act 2010, as amended, and any other such laws of each country(ies) applicable to the parties or the activities under this Agreement (“the ABAC Laws”). If Customer becomes aware of any possible violation of the foregoing provisions or any ABAC Laws in connection with this agreement, Customer will give notice in writing to SPORTAX within five working days of learning of such possible violation. If SPORTAX or Customer becomes aware of any such potential violation, Customer agrees to cooperate with SPORTAX in any investigation or due diligence check on Customer. In the event of a breach of an ABAC Law, SPORTAX may immediately terminate the agreement and withhold any outstanding payments.

 

Article 13 – Confidentiality

13.1      Customer acknowledges that it may have access to information owned or controlled by SPORTAX or SPORTAX’s affiliates, disclosure of which would cause substantial or irreparable harm to SPORTAX (“Confidential Information”). Confidential Information includes SPORTAX’s marketing plans, information regarding future releases of SPORTAX Products, and any other non-public material disclosed to Customer or to which Customer gains access. Customer will protect SPORTAX’s Confidential Information by using the same degree of care with respect to such information that it would exercise with its own confidential information or trade secrets, but in any event no less than reasonable care. Customer will make Confidential Information available only to those employees of Customer who need to know the information in connection with Customer’s business and will not disclose Confidential Information to any third party. Customer acknowledges that the Confidential Information qualifies as trade secret as defined in Article 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) and in the Trade Secret Directive (Directive (EU) 2016/943).

13.2      Customer will immediately notify SPORTAX in writing if it receives a request from any third party for an interview or statement about SPORTAX or SPORTAX Products. Customer will not answer questions or give statements about its relationship with SPORTAX or discuss SPORTAX Products under circumstances where Customer knows or has reason to believe that the purpose of the request is to create content for publication in film, television, radio, print or online media, including blogging. Customer will not hold itself out as a representative of SPORTAX in any interview or statement, whether or not it is recorded, and whether or not it is intended for such publication.

13.3      If Customer chooses to submit to SPORTAX or share with SPORTAX any business plans, product or marketing ideas, or other materials, Customer agrees that (i) SPORTAX is not subject to any restrictions in using such materials; Customer hereby grants to SPORTAX an irrevocable license to use such materials, without compensation to Customer; and (ii) SPORTAX is under no obligation to use such plans, ideas, or other materials, or to commercially exploit them in any territory.

 

Article 14 – Changes to the Terms and Conditions

14.1      SPORTAX may change these Terms and Conditions from time to time by making available a new version of the Terms and Conditions to Customer, either by providing the new version to Customer directly, or by publishing the new version on Shop.Sportax.co.uk. Customer acknowledges and agrees that any changes to the Terms and Conditions will become effective immediately unless otherwise indicated by SPORTAX.

 

Article 15 – No Waiver and Construction

15.1      If a court of competent jurisdiction determines that any provision of the Agreement (including any provision of these Terms and Conditions) is invalid or unenforceable for any reason, that determination will not affect any other provision unless enforcement of the remaining provisions would be grossly inequitable under the circumstances or would frustrate the primary purpose of the Agreement. The Parties will negotiate the amendment of any such term or provision in such manner that it becomes legal, valid and enforceable without affecting the original intent or the economic purpose and effect of such term or provision.

15.2      A Party’s delay or failure to enforce or insist on strict compliance with any of the provisions of the Agreement will not constitute a waiver or otherwise modify the Agreement, and a Party’s waiver of any right related to the Agreement on one occasion will not waive any other right, constitute a continuing waiver or waive that right on any other occasion.

15.3      No rule of construction or interpretation that disfavors SPORTAX or that favors Customer will apply to its interpretation, by the mere fact that these are standard terms and conditions.

 

Article 16 – Restriction on Assignment

16.1      Customer will not assign any right conferred herein by SPORTAX without the prior written consent of an authorized SPORTAX representative. A change of control of Customer by stock sale or gift, merger, operation of law, by contract, or otherwise, will be deemed an assignment for purposes of Article 16.1. Any attempted assignment or delegation by Customer will be void.  SPORTAX may grant, withhold or condition its consent to assignment at SPORTAX’s discretion. If SPORTAX authorizes an assignment or delegation, that authorization will not release Customer from any of its obligations under the Agreement unless (a) the authorization expressly releases Customer; (b) the assignee or delegate agrees in writing to be bound by the Agreement; and (c) any agreement between Customer and the assignee or delegate states that SPORTAX has the right to enforce Customer’s rights against the assignee or delegate.

16.2      SPORTAX may assign or transfer the Agreement or any of its rights and obligations under the Agreement to any of its affiliates or third party upon notice in writing to Customer.

 

Article 17 – Post-audit Policy

17.1      Post-audit claims, if any, must be received within six months of the invoice date. For shipment shortages, the required filing period is three (3) months from the shipping date.  SPORTAX will only accept post-audit results produced by direct employees of Customer. Post-audit claims performed by third party auditors will be denied.  All post-audit claims must be substantiated with complete and accurate supporting documentation to allow SPORTAX to consider the results for acceptance.  Any post-audit claim submitted without supporting documentation will be denied.  Upon any denial of a post-audit claim, the amounts at issue shall be immediately due and payable.  SPORTAX may charge Customer a EUR 500 handling fee per transaction within any audit if SPORTAX reasonably determines that any post-audit claim is frivolous or entirely unsubstantiated, such fee to be deemed immediately due and payable.

 

Article 18 – Withdrawal from the European Union

18.1      If any country which is at the moment of submitting an Order or entering into an Agreement a member state of the European Union (“EU”), withdraws from the EU and such withdrawal is likely to have a material adverse effect on the activities contemplated under this Agreement, the Parties will negotiate in good faith an adjustment or amendment to the Order and/or the Agreement if necessary to preserve each Party’s rights under that Order or Agreement.

18.2      A withdrawal from the EU by any member state of the EU will not constitute a Force Majeure event.

 

Article 19 – Applicable Law and Jurisdiction

19.1      An Order, the Agreement and, if existing, the overall supply relationship between the Parties will be governed in all respects by the laws of the Netherlands. Applicability of the United Nations Convention on Contracts for the International Sale of Goods is excluded.

19.2      The Parties irrevocably consent to the exclusive jurisdiction of the Courts of Amsterdam in the Netherlands in connection with any dispute and/or action arising out of or in connection with an Order, the Agreement or, if existing, the overall supply relationship between Parties, which is governed by these Terms and Conditions, including but not limited to tort claims related to the Agreement and/or such relationship and any and all claims or actions arising out of, in connection with, or under any actual or alleged infringement of any applicable laws (including without limitation Articles 101 and Article 102 of the Treaty on the Functioning of the European Union or any equivalent provision in the national law of a Member State). Notwithstanding the above SPORTAX may also, at its sole option, commence any proceedings against Customer in the courts of the country where Customer is domiciled.

 

SPORTAX LIMITED. (“SPORTAX”) DISTRIBUTION POLICY

FOR BRICK AND MORTAR RETAILERS [1]

 

  1. Reputation

RETAILER shall exercise a retail activity consisting in the purchase and sale of sporting goods or lifestyle personal goods to end consumers. RETAILER shall display all SPORTAX products for consumer sale within a quality retail environment from fixed and enclosed trading premises that complies with the below.

RETAILER shall display all SPORTAX Products for consumer sale within a quality retail environment which is strictly separate and differentiated from other parts of the shop floor. With respect to SPORTAX footwear and apparel, the above-described area must be exclusively dedicated to the sale of either: (a) sporting goods; (b) lifestyle products; or (c) footwear or apparel as appropriate. With respect to SPORTAX accessories and specialty categories products (Bags, Golf, Kids, Socks, etc…), the above-described area must be exclusively dedicated to the sale of either: (a) sporting goods; (b) lifestyle products; or (c) products which are complementary to the relevant SPORTAX product.

 

RETAILER shall either have (i) an established reputation and track record for the sale of products comparable to the SPORTAX product range they wish to sell, or (ii) a documented financial and business plan aiming at establishing reputation and track record for the sale of products comparable to the SPORTAX product range they wish to sell. This means that the Retailer must be recognized by sporting goods or lifestyle inspired consumers (as appropriate) as a credible and quality destination in their shopping process for the relevant products, as demonstrated by local/national reputation, consumer panel surveys, quotes in magazine or online consumer reviews.

 

  1. Brick & Mortar Consumer Experience

 

  1. Product offer

 

RETAILER must ensure that SPORTAX products are offered in a consistent assortment each SPORTAX selling season, all year long. In particular, RETAILER must stock a minimum range of SPORTAX products and styles and to stock them in a full range of sizes and fit.

 

RETAILER shall display all SPORTAX Products for consumer sale by means of high quality, professional merchandising fixtures, which SPORTAX has the right to approve, which are distinctly separate and differentiated from fixtures displaying different types of products.

 

  1. Product Search

 

RETAILER must use merchandising fixtures that distinguish the merchandising of the products for each of the relevant product categories, with respect to each sporting activity (e.g. Football, Running, Training, etc.) and display SPORTAX products with products which enjoy a similar reputation for quality as the SPORTAX brand.

 

  1. Product Selection

 

RETAILER shall have appointed a sufficient number of staff available throughout trading hours with knowledge of the relevant SPORTAX Product (i.e. footwear, apparel, accessories and specialty categories), to service the consumer and/or to provide information to consumers on RETAILER website in a professional manner and effect sales of SPORTAX Products on the retailer’s behalf.

 

RETAILER shall ensure that consumers are adequately served by fitting areas and/or fitting rooms appropriate for the Products concerned.

 

III.        Online Consumer experience for Brick and Mortar Retailers

 

  1. Product offer

 

In order to ensure that all SPORTAX products for consumer sale are displayed in a high quality professional manner:    

 

RETAILER must ensure that SPORTAX products are (i) depicted within a section of the website dedicated to the relevant type of product (e.g. athletic footwear, apparel or sporting goods, as applicable) and (ii) displayed within a section with products which enjoy a similar reputation for quality as the SPORTAX brand.

 

RETAILER shall display SPORTAX products with one occurrence per SPORTAX product (i.e. no multi-listing of the same SPORTAX product).

 

RETAILER must ensure an accurate SPORTAX product offer, i.e., products that are out of stock are eliminated from the website on a regular base.

 

  1. Product Search

 

RETAILER must ensure consistent and relevant search results (i.e. when identical search terms are entered, same results must be displayed).

 

RETAILER must ensure that Product categories identified as a result of a search are relevant to the search term.

 

  1. Product Selection

 

RETAILER must keep information on SPORTAX Products updated at all times.

 

RETAILER must display retail prices on the product page including VAT and any other applicable tax or fee.

 

RETAILER must offer direct personal contact for further inquiries via e-mail, phone or direct online chat with such qualified staff available throughout normal business hours

 

RETAILER must provide any answer to consumer inquiries in the same language that the consumer selected to navigate through the website.

 

  1. Check-out

    

In order to be equivalent to the Bricks & Mortar store experience,

 

RETAILER must ensure that a consumer’s shopping cart contains only those products and/or services that the consumer has explicitly selected.

 

RETAILER must display product in the shopping cart at the same price that was presented during product selection.

 

RETAILER must offer customer friendly payment methods matching the common retail internet industry standards. Encrypted security software and secure bank transactions must be enabled at all times.

 

RETAILER must display the total price of the full selection of products and services selected at all times during the check-out procedure.

 

RETAILER must provide an instant electronic confirmation of the products and/or services purchased with corresponding unit prices at the e-mail address provided by the consumer; If Products ordered are not in RETAILER’s stock, RETAILER shall immediately inform the consumer about the delivery time and shall give the customer the opportunity to cancel the order.

 

RETAILER must make available all sales terms and conditions at all times during the ordering process. In particular RETAILER must clearly inform consumers on its payment, delivery and return policies before and after a transaction is confirmed.

 

  1. Fulfillment

 

In order to be equivalent to the Bricks & Mortar store experience,

 

To the extent a charge is made, RETAILER must not charge shipment costs that are higher than the actual costs of shipping and packaging.

 

RETAILER must either (i) be able to demonstrate an operational delivery performance of lost or damaged deliveries of less than 5% or (ii) offer in store/free shipping returns.

 

 

  1. After-sales services

          

RETAILER must offer a returns policy, including an efficiently operating return service which at least (i) allows return of the ordered products within 14 days of purchase or more in case of longer local legal requirements and (ii) guarantees free returns.

 

RETAILER must offer clear contact details via e-mail, phone or direct chat at any page of RETAILER’s website including RETAILER’s shipping address to return products purchased.

 

RETAILER must offer relevant FAQs section for inquiries on the payment, fulfillment or after-sales services in a transparent and customer-friendly way.

 

 

  1. Rules of the Game

 

RETAILER shall comply at all time with the following:

 

  1. RETAILER shall not: (i) purchase the relevant SPORTAX Products from any third party, except from SPORTAX or other authorised resellers appointed by SPORTAX anywhere in the European Economic Area (EEA), United Kingdom or Switzerland; (ii) resell the relevant SPORTAX Products other than to end users or other authorised resellers appointed by SPORTAX anywhere in the EEA, United Kingdom or Switzerland.

 

  1. When purchasing from SPORTAX, RETAILER shall purchase all SPORTAX Products in accordance with the terms of SPORTAX’s Futures Program and other General Terms and Conditions in force from time to time.

 

  1. RETAILER shall refrain from selling counterfeit (i.e. infringing any of SPORTAX’s trademarks, designs copyrights or any other intellectual property rights) SPORTAX Products; RETAILER shall inform SPORTAX in writing of any counterfeit product activity (including sales by any third party), which comes to its notice as soon as is reasonably practical.

 

  1. Unless prior approval has been given by SPORTAX in writing, RETAILER shall not, directly or indirectly: (i) purchase original SPORTAX Products from any seller importing such products into the European Economic Area (EEA), United Kingdom or Switzerland from outside the EEA, United Kingdom or Switzerland in situations where SPORTAX has not consented to the sale of such specific SPORTAX Products within the EEA, United Kingdom and Switzerland; (ii) offer, sell, deliver or otherwise make available SPORTAX Products to any person or entity in any place or country outside the EEA, United Kingdom or Switzerland, or to any person or entity RETAILER knows, or in the exercise of reasonable judgment should know, intends to, directly or indirectly, offer, sell, deliver or otherwise make available Products outside the EEA, United Kingdom or Switzerland. In case of online sales, RETAILER must ensure that every purchase made through its website is made by a consumer with a billing address within EEA, United Kingdom or Switzerland.

 

  1. RETAILER shall not have committed, directly or indirectly, any of the actions mentioned in points 3 and 4 above within the last 3 years prior the request of appointment as a SPORTAX Authorised Retailer.

 

  1. RETAILER must comply with all applicable laws and regulations on consumer protection and product liability, misleading and comparative advertising, unfair competition, distance selling, e-commerce, defamation, data protection and privacy, electronic signatures, and intellectual property rights.

 

  1. RETAILER shall only use any material bearing any of SPORTAX’s trademarks in accordance with SPORTAX’s trademarks guidelines below in force from time to time.

 

  1. For any online activity, RETAILER shall:

–       Directly operate its website under its own trading name. In case RETAILER has outsourced any of the activities related to the hosting and exploitation of its website to a third party, RETAILER shall accept full responsibility towards SPORTAX and/or consumers for the content of the website and for any event arising out or in connection with any transaction on the website. RETAILER website (not just relevant webpage) must primarily be visited by end consumers in relation to sport or the purchase of sporting goods/lifestyle personal goods;

–       Display all SPORTAX Products for consumer sale directly and exclusively within either i) its own website or ii) SPORTAX authorised retailers own websites. RETAILER shall not allow other companies (which are not SPORTAX authorised retailers) to display SPORTAX Products for consumer sale within its own website and shall not display SPORTAX Products for consumer sale within websites of other companies (which are not SPORTAX authorised retailers);

–       Warrant that its website does not contain, refer to, or is not linked to, pages containing illegal, infringing, obscene or pornographic material or pages that promote violence, discrimination or contain hate speech.

 

 

  1. SPORTAX Trademarks Guidelines

 

RETAILER will not, without SPORTAX’s prior approval:

 

  1. Use any of the nike Trademarks (as defined below) except precisely in the form in which it is registered, or approved for use by SPORTAX.

 

  1. Use SPORTAX Trademarks except in a manner in accordance with accepted principles of proper trademark usage and sound business practices. SPORTAX Trademarks should never be used as nouns or verbs, or pluralized, modified, edited, abridged, or rendered possessive by use of an apostrophe. SPORTAX Trademarks should always be used as adjectives in text. SPORTAX design marks should always appear in proper form, and never be obscured by other material.

 

  1. Use SPORTAX Trademarks in a manner liable to invalidate the registration of the SPORTAX Trademarks, or authorize any third party to do the same.

 

  1. Use any of the SPORTAX Trademarks as, or as part of, the corporate or business name in the conduct of any portion of RETAILER’s business, or otherwise in a manner (e.g. business cards, stationary, business documents) that could be misleading as to RETAILER’s status as a company independent of the SPORTAX group of companies, or which could imply inaccurately a connection or affiliation between the SPORTAX group of companies and RETAILER other than their true relationship. RETAILER shall not, in any way, give the consumer the impression that he/she is dealing directly with SPORTAX. The store/website must at all times clearly reflect that the consumer is dealing with an independent retailer who sells SPORTAX products.

 

  1. Make any modification to the SPORTAX Trademarks, the SPORTAX Products or their packaging.

 

  1. Operate a web site that includes in its URL any of the SPORTAX Trademarks, or any similar trademark or trade name that could be misleading to consumers.

 

  1. Operate a web site that refers to the online store in any way which could lead the consumer to incorrectly believe he/she is dealing directly with SPORTAX.

 

  1. Use any of the SPORTAX Trademarks in conjunction with any other trademark, or use in connection with SPORTAX Products any trademarks other than the SPORTAX Trademarks.

 

  1. Do anything that may bring the SPORTAX Trademarks into disrepute or damage SPORTAX’s business in any way.

 

  1. Sell or give away any acquired signs, posters, fixtures or other point of sale materials bearing any of SPORTAX’s trademarks or other intellectual property when no longer in use. The above items must be returned to SPORTAX, discarded or saved. The only exception to this policy relates to fixtures from which all brand and trademark identifiers may be removed without destroying the fixture.

 

  1. Make reference to and use the SPORTAX trademarks, designs and know-how as well as SPORTAX advertising and promotional and other written material, prior to being used in connection with the promotion and sale of SPORTAX Products. When RETAILER purchases SPORTAX Ad-Words, referencement in search engine site or any form of “pay for display” advertisement, it shall comply with SPORTAX Keyword Policy applicable from time to time.

 

  1. For the purpose of the foregoing, the “NIKE Trademarks” will mean any trademarks registered by any member of the SPORTAX group of companies or such other trademarks used by any member of the SPORTAX group of companies on or in relation to SPORTAX Products, as well as any trade names registered or used by any member of the SPORTAX group of companies.

 

 

[1] These criteria apply to Retailers with primarily brick and mortar premises and that primarily sell and acquire their revenues from physical stores. For Retailers with primarily “digital” premises (e.g. website) and that sell and acquire a vast majority of their revenues from digital, an additional set of criteria is available upon request

 

REGISTERED ADDRESS: UNIT H2 | EUROPA WAY | STONECLOUGH ROAD | RADCLIFFE | M26 1GG | COMPANY REG NO: 04066918