0. Applicability, Scope and Subject Matter
These General Distribution Terms (further “GDT”) apply to the relationships of MT with any of its distributors. “MT” means the Mettler-Toledo unit that has entered into the distribution relationship. “Distributor” means any person, firm or company who is appointed by MT as its distributor. MT and the Distributor are referred to as a “Party” or jointly as the “Parties”.
Amendments and modifications to these GDT will only be valid if they have been accepted by MT in writing. Any general purchasing conditions and/or contractual provisions of Distributor deviating from these GDT are hereby expressly rejected.
These GDT shall be supplemented by Specific Business Terms, agreed between the Parties (“SBT”), setting forth the specific commercial and other terms to the relationship. “Agreement” means the entire agreement between the parties consisting of these GDT, the SBT and any other document agreed in writing between the Parties as set forth in section 14.12 of these GDT. In case of a conflict between the terms of these GDT and the SBT or a document referred therein, the GDT shall control, unless otherwise expressly agreed by MT in the respective SBT.
1. Appointment and Acceptance
MT hereby appoints Distributor as its non-exclusive distributor for the territory set forth in the SBT (“Territory”) in respect of the products and/or product lines set forth in the SBT (“Products”) and Distributor accepts this appointment.
Distributor shall buy and sell in its own name and for its own risk and account. Distributor shall have no authority to bind MT in any way and the parties agree that no agency relationship between MT and Distributor is intended or implied by the Agreement.
2. Modifications to Products or Product Range
MT shall be entitled to improve, modify, discontinue, or otherwise change the Products and/or the product range at its discretion.
3. MT's Duties
3.1 Support and Documentation
MT shall support Distributor in its efforts by providing Distributor with product catalogues, data sheets and product leaflets free of charge or with support in any other reasonable matter relating to the Products. MT may, in case of an unusual or excessive requests for promotional material, charge the Distributor with the costs for the promotional material.
MT shall, at its discretion, provide from time to time training regarding newly introduced or significantly modified Products or follow-up training for other Products.
3.3 Spare Parts Period
MT willll continue to provide Distributor with spare parts for Products for so long as they are reasonably available
3.4 Service Documentation
MT shall provide Distributor with reasonable quantities of service documentation to assist Distributor in fulfilling its service obligations of Products hereunder and for no other purpose, which shall remain the property of MT. Such documentation shall be in English and such other languages as decided by MT in its sole discretion.
4. Distributor's Duties.
4.1 Sale of Products; MT's Interests
4.1.1 Distributor shall use its best efforts to actively promote the sales of Products in the Territory and to undertake all necessary promotional activities and application support. Distributor shall achieve the annually agreed performance targets and shall develop a corresponding business plan with specific initiatives and marketing activities required to achieve the targets.
4.1.2 Distributor shall safeguard the interests of MT in the Territory with all due care and shall observe any applicable laws in the Territory particularly in regard to packaging, labeling, storing of the Products, meeting legal metrology requirements and ensuring product safety. Distributor shall not modify Products, except for configuration and integration authorized by MT, including, but not limited to, the design, circuits and make-up, without MT's prior written consent, even if the law of the Territory requires modifications to the Products. Distributor shall not alter, remove or erase any notices, cautions, warnings, serial numbers or other marks (including notices that a trade mark, design or copyright is owned by MT or a third party) which MT may place or affix to the Products. Any statement regarding the Products shall not be in excess of MT’s specifications.
4.1.3 To the extent permitted by applicable law, during the term of the Agreement Distributor shall not solicit the sale of and/or sell products within the Territory that, in MT’s reasonable opinion, compete with the Products.
4.1.4. During the term of the Agreement Distributor shall not actively promote, sell, distribute or actively seek to service any Products outside the Territory or to supply Products or spare parts to such resellers that intend to actively promote, sell, distribute or actively seek to service any Products outside the Territory.
4.2 METTLER TOLEDO’s Intellectual Property Rights
Distributor acknowledges that it has no rights and will obtain no rights in the Intellectual Property Rights (defined below) and the goodwill associated with such rights shall at all times belong and inure to MT. Distributor will use reasonable efforts to assist MT with enforcing MT's Intellectual Property Rights in or relating to activities originating in the Territory. Distributor shall not use or permit to be used by any person or entity under its control any of the Intellectual Property Rights without prior written consent of MT. During the term of this Agreement, Distributor is entitled to use the METTLER TOLEDO name and logo and other marks owned by MT (the “MT Marks”) to promote sales of Products in the Territory. Any such use must be approved in advance in writing by MT and must be in accordance with MT's then current corporate design/use guidelines. Distributor shall use an identifier/logo for all activities not relating to the Products, which is in no way similar to the identifier/logo of MT. Distributor shall not (i) attempt to obtain title to the MT Marks or other confusingly similar names, logos or marks, or (ii) use the MT Marks or any combination of words containing the MT Marks or other confusingly similar marks as part of its firm, corporate, or business name either during the term of this Agreement or thereafter. Distributor shall indemnify and hold MT harmless against liability which may arise as a result of Distributor’s failure to comply with the foregoing. Distributor shall promptly inform MT of potential infringements of the METTLER TOLEDO name and logo that Distributor notices in the Territory. For purposes of this Agreement “Intellectual Property Rights” means (i) any and all rights in patents, copyright, moral rights, database rights and rights in trademarks, trade dress, designs, know-how and confidential information; (ii) applications for registration, and the right to apply for registration, for any of these rights; and (iii) all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world (whether registered or unregistered) in all cases which are used or owned by MTand which relate to the Products.
MT shall make all economically reasonable efforts to ensure that the Products of MT 's design furnished hereunder do not infringe upon any third party IP rights. The Parties agree that any designs or other special requirements specified by Distributor or its customer or any end user as well as the use and application of Products are within the responsibility of Distributor or its customer or any end user.
With MT's reasonable assistance, Distributor shall obtain any official registration, license, approval or certification necessary to distribute the Products in the Territory at its own expense and shall indemnify and hold MT harmless against any liability which may arise as a result of Distributor's failure to obtain such registration, license or approval.
4.4 Employees; Training
Distributor shall employ a team of suitable, qualified and competent staff to sell and service the Products in the Territory and to support dealers and to ensure the necessary training of dealer's staff responsible for selling the Products. Distributor shall allow and require its sales and service staff to attend basic and supplementary training courses provided by MT from time to time; tuition and all expenses shall be borne by the Distributor.
4.5 Stock-keeping and Demonstration Equipment
Distributor shall hold an adequate stock of Products, accessories and spare parts to promptly meet reasonable anticipated demand and to fulfill its service obligations. Distributor shall make available, at its own cost, a sufficient number of demonstration units of the Products for active promotion. Distributor also undertakes to maintain a laboratory for applications and demonstrations to handle reasonable customer requests for technical assistance and for testing.
4.6 Product Documentation
Distributor shall assist MT, as and when requested by MT, to produce complete and accurate local language labeling, instructions for use and other literature for the Products by translating the documentation provided to it by MT in English (or another common language if available) correctly and in full into the official language(s) of the Territory at its own expense. Distributor shall only make adaptations to the documents as required by the law of the Territory. Distributor shall provide MT with copies of promotional material created by Distributor whenever MT has financially contributed to it or promptly upon request by MT in any other case.
Distributor shall provide and maintain in respect of the Products in the Territory and irrespective of the place of purchase an adequate after-sales service capability. Such service shall comprise a warranty, performance assurance and a repair and breakdown service in accordance with standards prescribed by MT.
4.8 Regulated Products
The Distributor shall be responsible for the correct installation, calibration and operation of any regulated Products in compliance with all applicable laws and regulations of the place of destination at its own expense. Distributor may, to the extent permitted by law, transfer such responsibility to its customer by a written agreement. The Distributor shall inform its customer about any actions to be undertaken or requirements to be fulfilled for the correct installation, calibration and operation of regulated Products in compliance with all applicable laws and regulations of the place of destination (such as e.g. calibration/recalibration of the goods by the competent calibration authorities for use in a legally regulated field). MT may, at its sole discretion, reserve the sale of certain Products or Product categories to the fulfillment of additional requirements as defined by it, such as e.g. maintaining a certified quality system or fulfilling certain quality requirements; being able and/or authorized to carry out certain activities or services (such as verification, conformity assessment, calibration, installation or repair services); having completed certain trainings as determined by MT; maintaining certain measuring or test equipment and having such equipment reviewed from time to time; being subject to audits etc. If such is the case, the Distributor must fulfill all such criteria at its own expense. MT may require confirmation or documentary evidence thereof at all times.
Distributor shall maintain, and cause its subcontractors to maintain, adequate and customary insurance coverage, including product liability insurance, with generally acceptable underwriters. Upon MT’s request Distributor shall provide a valid certificate of insurance or a copy of its insurance policies and evidence that its premiums have been paid in full and are up to date.
4.10 Destination Coordination
All Distributor Orders issued to MT shall be subject to MT’s internal Origin and Destination Coordination Policy (“Policy”), which may be updated by MT from time to time, and which Distributor agrees to be subject to under this Agreement. Final determinations as to this Policy shall be rendered by MT in its sole discretion.
4.11 Key Accounts
Where MT has entered into a global key account agreement with its key accounts, setting forth certain discounts or other conditions that are applicable to key account entities within the Territory, Distributor agrees to supply the key accounts with the Products in the Territory. Distributor will use its best efforts to apply the discounts or conditions agreed in the key account agreement, it being understood that none of the agreed conditions or discounts shall be considered as fixed or minimum resale prices and that Distributor shall at all times be entitled to offer better discounts or conditions to the key account than the ones set forth in the key account agreement. MT shall periodically update Distributor on key account agreements relevant to the Products and the Territory.
5. Appointment of Dealers
In order to meet customers’ service needs, solely upon MT’s prior written consent, Distributor may appoint dealers in the Territory, provided they are subject to the same conditions and obligations as set forth in this Agreement and that Distributor promptly informs MT of such appointment. Upon request by MT, Distributor shall terminate such dealer arrangementsno less than six months from the date of MT's request. Nothing herein shall relieve Distributor from its obligations hereunder, and Distributor shall remain liable for the acts of its dealers or other agents of Distributor.
6. Ordering and Delivery
Distributor agrees to place purchase orders subject to MT's standard terms and conditions of sale via the MT company or companies that MT shall specify from time to time. Distributor hereby agrees to accept any late delivery of the Products provided that such delay is not unreasonable. If dispatch or receipt of the goods is delayed by Distributor or prevented for reasons for which MT cannot be held responsible, the goods will be stored at Distributor's risk and expense.
7. Prices; Payment Terms
Prices for Products, discounts and rebates are set out in the SBT. MT reserves the right to change prices and discounts at any time and shall notify Distributor of any changes in prices at least 30 days before the changes become effective, if practicable. All duties and taxes shall be paid by Distributor. Any user or resale prices referred to in the Agreement, its Annexes or in catalogues and discount sheets are recommended prices only and not binding.
All invoices shall be paid in the currency set forth in the SBT without any deductions or offset within 30 days of the invoice date unless otherwise agreed in writing. If Distributor does not timely pay outstanding amounts, MT may require payments in advance. If Distributor's payments are more than 30 days overdue, (i) MT may withhold any delivery until full payment is made and (ii) Distributor agrees to pay interest of 12% per annum on amounts outstanding beyond 30 days.
8. Warranties; Terms and Conditions
MT’s standard terms and conditions of sale applicable to all purchases by Distributor pursuant to this Agreement, including warranties, are set out on www.mt.com/terms as may be amended from time to time ("MT T&C"). MT T&C shall take precedence notwithstanding any contrary terms that may be placed on any Distributor order or confirmation or other document. In the event MT T&C conflict with specific terms contained in these GDT, the terms of these GDT shall govern and control. In consideration for the warranty provided by MT, Distributor shall grant customers a corresponding warranty and shall undertake the warranty work according to its service obligations under the Agreement. Distributor shall not make any representations or give any warranties in favor of, or confer any other benefit on a purchaser beyond those in the Agreement. MT shall not be liable to any purchaser as a result of Distributor’s breach of this section and in case of such warranty claims braught against MT by Distributor's customers, Distributor shall, defend, indemnify and hold MT harmless.
9. Indemnity; Limitation of Liability
The Distributor shall indemnify, defend and hold MT harmless against all losses or damages together with all costs, expenses and liabilities (including without limitation legal and other professional fees) incurred or suffered by or awarded against MT, which result from negligence, gross negligence, violation of law, breach, or intentional misconduct of Distributor or its subcontractors in the performance of its obligations under this Agreement, provided that Distributor’s obligation to indemnify MT shall not apply to the extent such claim is due to the negligence or intentional misconduct of MT. The parties agree that the limitation of liability contained in MT T&C found at www.mt.com/terms shall also apply to their commercial relationship and this Agreement, and is incorporated herein by reference.
Distributor shall immediately notify MT of all adverse incidents, events, reports or complaints relating to the Products. Distributor shall promptly comply with all reasonable directions of MT. Distributor shall also report to MT any adverse events, incidents or reports relating to competitive products, of which it becomes aware, as well as any facts which may adversely affect Distributor’s ability to meet current or future performance targets.
11. Traceability and Recalls of Products
MT shall be entitled to retrace or recall Products or undertake corrective measures to the Products as it deems necessary. Distributor must retain all required documents and information in order to ensure that any Product sold by Distributor to a third party can be retraced and identified by its unique serial number during a period of ten years. Such information must include at a minimum the name and contact data of the customer and the Products delivered, with Product numbers and delivery dates. Distributor shall actively support MT in its efforts by (a) retracing or recalling such Products, or implement such corrective measures to the Products, as specified by MT; and (b) providing to MT the information called for by this paragraph upon termination of this Agreement.
Either party may terminate this Agreement without cause at any time by giving not less than 6 months' prior notice in writing. Either party may terminate this agreement upon immediate written notice to the other party if a party (a) is in default in respect of any material obligation on its part, and such default has not been remedied within 30 days of written notice thereof or (b) ceases doing business, is discontinued, dissolved, or has a receiver or liquidator appointed or enters bankruptcy proceedings. MT shall be entitled to terminate this Agreement with immediate effect by written notice to Distributor if Distributor (a) is restructured in a way adversely affecting its activities hereunder, (b) experiences a change in control, (c) fails to achieve agreed annual performance targets, d) if Distributor becomes encumbered with a lien or (e) if Distributor is named a party in litigation or potential litigation or becomes the subject of an investigation that in any way MT deems damaging to Distributor’s reputation.
In the event that MT should fail to effectuate termination of this Agreement in accordance with this Agreement upon the occurrence of an event that might entitle MT to terminate this Agreement (“Event”) Distributor agrees such failure shall not operate as a waiver of MT’s right to thereafter terminate this Agreement as to the same Event, any continuation of the same Event, or any subsequent Event.
If Distributor is within the European Economic Area, this Agreement shall automatically expire five (5) years from the date of its execution. The parties shall in due course before its expiry enter into discussions regarding whether and under what conditions to continue their business relationship.
13. Consequences of Termination
Upon termination of the Agreement, (a) Distributor shall not be entitled to any compensation whatsoever, (b) MT shall be entitled but not obligated to require the return of all or any part of the Products that are unsold and in salable condition, including spare parts, supplied to Distributor during the 12 months prior to termination, at a cost not greater than the price paid by Distributor, and that any Products that are unsold but not in salable condition shall be destroyed by the Distributor at its cost or returned to MT at Distributor’s expense, whichever is chosen by MT, (c) Distributor will transfer all official licenses, approvals or certificates which are in its name to MT, and otherwise provide all reasonable assistance in transferring distribution of the Products to MT or its nominee, (d) Distributor shall inform its customers for the Products that the Agreement has been terminated or has expired and shall supply to such customers the name and address of any other entity selling products or new distributor appointed by MT in the Territory, (e) Distributor shall immediately cease to use MT Marks to promote the Products or to make any other use of MT’s Intellectual Property Rights, except as reasonably required to sell any remaining stocks of the Product (if not returned to MT or destroyed as set forth in (b) above); (f) shall immediately pay to MT all outstanding amounts under the Agreement, which shall immediately become due and payable; and (g) will immediately transfer to MT all information set forth in section 11 above. The termination or expiration of the Agreement shall not of itself give rise to any liability on the part of MT to pay any compensation to the Distributor for loss of profits or good will. Upon termination of the Agreement, any outstanding orders already accepted by MT shall be filled by MT and any outstanding obligations on the part of Distributor shall be performed by Distributor in accordance with the terms of the Agreement. For a period of six months after termination, Distributor shall pass on to MT or its designee without delay any inquiries regarding Products from third parties.
14. Other Provisions
Distributor shall treat all Confidential Information of MT, as strictly confidential. The Distributor will use Confidential Information solely for purposes of performing its obligations under the Agreement. For avoidance of doubt, the use of any MT Confidential information, such as customer information, for the benefit of any other business partner of the Distributor is strictly prohibited and will constitute a breach of this Agreement. "Confidential Information" means all information and data, whether written or oral, that may be disclosed or made available by MT to the Distributor, including but not limited to technical, financial or commercial information, in particular the information regarding MT customer base, iBase, prices and CRM database. This obligation of confidentiality and non-use shall survive termination of the Agreement for a period of five years. Upon termination of the Agreement or if so requested by MT, the Distributor agrees to return or destroy any documents or data containing confidential information supplied by MT or any copies thereof or extracts there from made by the Distributor.
14.2 Data Protection
Distributor agrees MT is entitled to use, process, and store, and allow a third party to use, process, and store on MT's behalf, any data MT obtains under this Agreement, in accordance with relevant laws, for legitimate business purposes, including improving MT's products and services and marketing its products and services. MT may process limited personal data of some of Distributor's employees or contractors in order to respond to enquiries or requests, and to perform this Agreement (e.g. to process orders and payments, conduct trainings, arrange shipments and to provide support services). Distributor will comply with all applicable data protection laws when distributing the Products. Should either Party process personal data for or on behalf of the other Party, the Parties will enter into a data processing agreement if necessary.
Distributor may not assign any of its rights or obligations under the Agreement without MT's prior written consent.
Any notice pertaining to the Agreement shall be considered as having been given when delivered personally or when mailed via registered first class air mail to the address specified in the SBT.
Should any part of these GDT or of the Agreement be deemed legally invalid at any time, this shall not affect the validity of the whole. Any such legally invalid clause shall be replaced appropriately by mutual agreement between the parties with a legally valid clause approaching the originally intended contractual significance as closely as possible.
14.6 Adherence to United States Laws
MT is subject to the laws and regulations of the United States, including those governing the export of products and technology. Accordingly, Distributor agrees that it will not directly or indirectly engage in any acts which would cause MT to violate such laws or regulations and that it recognizes and accepts MT's legal obligations thereunder.
14.7 Compliance with Anti-Corruption Laws
Distributor certifies that it is in compliance with, and confirms that it will comply with, the OECD Anti-Bribery Convention, the UK Bribery Act 2010, the US Foreign Corrupt Practices Act and any other applicable anti-corruption laws and conventions when performing services or acting for or on behalf of MT and otherwise when carrying on its business. Distributor shall keep complete and accurate records of (i) all transactions undertaken for or on behalf of MT and of (ii) all payments of any kind made by Distributor from or with respect to commissions, service fees or other payments it received from MT. If Distributor fails to comply with this obligation, MT shall be entitled to terminate the Agreement with immediate effect without notice and without any penalty, liability or further obligation. Upon request of MT, Distributor shall defend, indemnify and hold harmless MT and its employees, officers and directors from any claims, demands, actions, expenses, liability, damages and/or costs and judgments, including reasonable attorneys’ fees and costs, based on breach of the above obligation by Distributor or any of its employees, officers, directors, agents, representatives or any other person acting for or on behalf of Distributor. Distributor agrees that it will use reasonable effort to obtain certifications equivalent or substantially similar to those in this section from its own business partners.
14.8 Adherence to EU Laws
In case Distributor imports or sells the Products into the European Community, Distributor shall be deemed the “producer” of such Products under any laws, regulations or other statutory scheme providing for the marking, collection, recycling and/or disposal of electric and electronic equipment (collectively “WEEE Regulations”) and shall be solely responsible for complying with such applicable WEEE Regulations, unless otherwise agreed to by MT in writing.
14.9 Business Partner Code of Conduct
Distributor acknowledges that it has read and will comply with the METTLER TOLEDO Business Partner Code of Conduct, as set forth at www.mt.com/businesspartner, and which may be amended by MT from time to time.
14.10 Audit Rights
Upon reasonable notice to Distributor, MT or its authorized representative shall have the right to audit and inspect Distributor’s relevant business records regarding the Agreement including Distributor’s compliance with its obligations under the Agreement regarding confidentiality; insurance requirements; workforce screening processes; and, if MT has reason to suspect non-compliance, compliance with applicable laws, rules, regulations, or MT’s policies and procedures. Upon reasonable notice by MT to Distributor, Distributor shall prepare and maintain records, which shall be open to inspection and subject to audit and/or reproduction, during normal working hours, by MT or its authorized representative for evaluation and verification of any invoice, payments, or claims submitted by Distributor or any of its payees, required by governmental authorities, or desirable for any other valid business purposes. MT’s authorized representatives shall have access to Distributor’s facilities in order to conduct audits in compliance with this section. MT or its authorized representatives shall give Distributor reasonable advanced notice of intent to audit. Unless provided otherwise in this Agreement, Distributor shall preserve the records and MT or its authorized representatives shall have access to the records for a period of five (5) years after the termination of the Agreement, unless a longer period has been provided under this Agreement.
14.11 Periodic Certification and Due Diligence
MT may from time to time, in its sole discretion, require Distributor to sign periodic certifications of its continued and on-going compliance with the METTLER TOLEDO Business Partner Code of Conduct, anti-corruption laws (as used in 14.7 above), United States Law (as used in Section 14.6 above), and any other requirement contained in this Agreement or otherwise established by law. MT may also ask Distributor to complete questionnaires, complete training, or complete other due diligence procedures. Upon receipt of a request to complete such actions, Distributor shall complete such certification in a timely manner.
14.12 Modification of Agreement, Written Form
Any amendments or additions to these GDT as well as any SBT require a written instrument duly executed by authorized officers of both parties. Under the condition that the Parties each have appointed a responsible relationship manager in the SBT, subsidiary arrangements of a purely operational nature may from time to time be concluded in writing (including e-mail) by mutual agreement of the Parties’ respective responsible relationship managers. No oral arrangements shall be binding upon either of the parties. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings, whether verbal or written, relating to the subject matter hereof.
14.13 Applicable Law
The Agreement shall be subject to Swiss law, unless agreed otherwise under SBT. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. All disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or three arbitrators appointed in accordance with the said Rules. The place of arbitration shall be Zurich. The language of arbitration shall be English.